230 A.D. 114 | N.Y. App. Div. | 1930
Lead Opinion
Plaintiffs appeal from orders granting defendant’s motion to dismiss, in advance of trial, the complaint in each case, the first action being for personal injuries sustained by the infant plaintiff, and the second action, by his father for loss of services and medical expense, on the ground that the complaints (which are identical in averments to fix liability) do not set forth facts sufficient to constitute a cause of action.
Defendant is a manufacturer of toy revolvers and “ advertised the same for use, especially by children and infants of tender years as a means and source of fun, play, joy and amusement.” The complaint sets forth fully the advertising matter circulated by defendant, which asserted in bold type that this children s toy was “ absolutely harmless,” and employed other phrases, indicating that under no circumstances could harm befall the infant user. The appeal was to children to obtain and use it; they or their parents, for them, were the intended purchasers. The complaint describes the mechanical construction and operation of this revolver, and further alleges that defendant was negligent and careless in its advertising of the revolvers, in the manner set forth, and in failing adequately to warn users against possible dangers in its use and thus breached its duty to the public and to those who might be induced to place it in the hands of infants to their danger. The complaint charges that the pistol was advertised and distributed particularly for use during the Christmas holidays.
The complaint here is sustained by the decision in Henry v. Crook (202 App. Div. 19), where the court (in an action in which both the immediate vendor and the advertising manufacturer were defendants) stated in reference to an advertisement regarding a toy known as “ sparklers ” through the use of which a child was burnt (p. 21): “ The statement that they may be used indoors, where are usually rugs and carpets and other inflammable materials during the holiday time, would give one the impression that a fire could not be ignited by their use. The clothing of children is often sheer and easily inflammable.”
In that case, however, the advertisement contained some warning, viz., “ Do not touch glowing wire.” That article was not proclaimed by its' manufacturer to be “ absolutely harmless ” as here. The court there held that the warning was not sufficient in view of the circumstance that the articles were intended to be used by children who were entitled to be warned of danger. The advertising matter, here, contained no warning whatever; on the contrary, the defendant’s advertisement was designed to allay all fear of possible injurious consequence to a child user. Where a manufacturer markets an article with such a sweeping and unqualified representation that a child could not be hurt by it, an infant user actually damaged by its use is entitled to show the circumstances under which the pistol was purchased and to prove how the injuiy resulted and may not be summarily deprived of a trial upon which to make such proof.
The importance of the circumstance that this pistol was made by defendant to be sold for use, not by the general public, but by a class, viz., infants of tender years, is not to be overlooked. Other cases cited by appellant refer to articles which primarily were intended to be used by adults. In many instances when so used they were not dangerous, and the court held that there could be no recovery against the manufacturer unless the otherwise harmless article was such as would be expected to become capable of inflicting injury when negligently constructed.
For instance, the large coffee urn, in Statler v. Ray Manufacturing Co. (195 N. Y. 478), or the bottle of aerated water, in Torgesen v. Schultz (192 N. Y. 156), were articles of such character that they were liable to become a source of danger if not properly constructed and recoveries against the manufacturer were allowed. -
The cases bearing upon the nature and extent of the liability of the manufacturer to the ultimate purchaser for negligence are discussed and analyzed in MacPherson v. Buick Motor Co. (217 N. Y. 382). Underlying the manufacturer’s liability is the danger reasonably to be foreseen from the intended use of the article. The advertising matter accompanying it may induce the use in such manner as to make an otherwise harmless article a source of danger. A product designed to be used by adults who may be expected to exercise care may not be dangerous, but when intended to be placed in the hands of inexperienced children who may seek to enlarge their knowledge by experimentation of various and sometimes unsuspected character, it may be a source of peiil, and the danger would be increased if the manufacturer represented that under no circumstances could the infant user be harmed. The manufacturer must be deemed to have known that children during the Christmas season, in portrayals of Santa Claus or at other times in the production of plays or pageants, or in attendance at gatherings, would probably be garbed in inflammable material and that to place a pistol of this character in the hands of a child might result in damage.
The present appears to. be not the only instance where an infant has been injured while using a like revolver made by defendant, for a similar toy pistol was discharged by an infant and the sparks caused a mixture of gasoline vapor and oxygen to ignite. (Miller v. Sears, Roebuck & Co., 250 Ill. App. 340.) Respondent here relies largely upon the decision in that case (Miller v. Sears, Roebuck & Co., supra), in which the court said (p. 346): “ We are of the opinion that upon the record the instruction of the trial court ■ that the jury should return a verdict of not guilty, was proper, and the judgment thereon will not be disturbed.” That conclusion, however, rested upon the particular circumstances there proven at trial. That plaintiff was at least afforded his day in court and given an opportunity to present his evidence.
In order to sustain the order and judgment below, this court would be required to hold that no matter what proof might be introduced upon trial as to the acquisition of the pistol and the circumstances of this accident, defendant is immune from damages. We cannot say as a matter of law, accepting the allegations of the complaint as true, that defendant discharged its full duty and that no
The judgments and orders appealed from should be reversed, with costs, and defendant’s motion for judgment on the pleadings denied in each action, with ten dollars costs.
McAvoy and O’Malley, JJ., concur; Merrell and Martin, JJ., dissent.
Dissenting Opinion
The first of these actions was brought by William F. Crist, who sues as an infant by his guardian ad litem against the defendant, and is brought to recover damages for personal injuries which plaintiff alleges he sustained as the result of the negligence of defendant. The second action is brought by the father of the infant plaintiff in the first action to recover damages for loss of services of his said son and for medical aid and attendance to the infant plaintiff as the result of the injuries which he claims to have sustained by reason of the defendant’s negligence.
The complaint in the first action is a rather peculiar document in that it is nowhere therein alleged that the plaintiff suing as an infant is, in fact, an infant, nor is the age of the plaintiff anywhere stated. The only allegation in the complaint concerning the infancy of the plaintiff is the twenty-seventh, wherein the plaintiff alleges: “ That heretofore and by an ordei of this court, Abraham L. Speio was duly appointed the guardian ad litem of the infant plaintiff herein for the purposes of this action.” It is alleged in the complaint that the defendant is a foreign corporation organized under the laws of the State of New Jersey, and doing business in the State of New York, and that the defendant manufactured and advertised for sale a certain toy known as a Ronson revolver; that said revolvers were sold to the general public and advertised for use by children and infants of tender years as a means and source of fun, play, joy and amusement. Plaintiff alleges that defendant well knew or ought to have known and intended that the said revolvers were to be used by children and infants of tender years for play and amusement, and that the users of such revolvers were immature and not chargeable with a sense of danger or capable of exercising ordinary prudence and care while using said revolvers. Plaintiff further alleges that it was the duty of defendant in the sale and distribution of said toy to properly and carefully warn and guide the public in the use thereof and to admonish, warn and instruct those who weie intended to use the instrument in the use thereof so that they would not suffer harm or
The defendant answered in the action, virtually denying all of the material allegations of the complaint, and as a defense alleging contributory negligence on the part of the plaintiff. Defendant then moved for an order granting judgment to defendant against plaintiff on the ground that the complaint did not state facts sufficient to constitute a cause of action. The Special Term, to which said motion was directed, granted the same, the justice presiding rendering a short memorandum opinion, as follows: “ Motion is granted, with ten dollars costs. It seems to me that the language of the advertising matter may not be construed as a warranty or representation that the revolver, which ‘ upon being operated discharged a flame of sparks,’ as the complaint alleges, would not cause ignition if brought too close to highly inflammable material. In brief, the language of the advertising matter may not be construed as representing that fire will not burn. The disputed exhibits were not considered. Settle order.”
We believe the Special Term was entirely correct in holding the complaint of the plaintiff bad for insufficiency.
Aside from the variance in the amount demanded as damages and the basis thereof on the part of the father’s action, the complaints in both actions are identical.
Upon the argument of the appeal it was stipulated that one of the
The complaint contains no allegation concerning the circumstances under which the infant plaintiff was demonstrating the revolver in question to public view in the show window of the Crist store at Circleville, Ohio, nor does it appear how the plaintiff obtained possession of said toy. The complaint does not allege any defect in the manufacture of the revolver. It is not alleged that the defendant was guilty of any negligence in the manufacture of this toy, nor is there any allegation of fraud or deception on the part of defendant under which a defective product was manufactured and sold. There is no allegation in the complaint from which the court could possibly conclude that the toy revolver was inherently dangerous. There is no allegation of any latent defect in the manufacture of the toy. The only allegation is that the sparks and flame emitted from this toy ignited the highly inflammable material, such as absorbent cotton and fine whiskers, which burned the plaintiff when seated in the show window of his giandfather’s store. As a matter of fact, no flame does come from the operation of this revolver. There is merely a shower of cold sparks resulting from the grinding of hard, metallic substances against each other, which causes the appearance of flame. There is no allegation in the complaint that the sparks oi flame emitted from the revolver burned the skin or flesh of the boy, and it is not alleged that the defendant stated or suggested by implication or otherwise that the sparks emitted from the revolver were different from other sparks or flame created by the friction of two metallic substances or of metal upon flint. On the contrary, it is alleged in the complaint and in the advertisement contained in the illustrations upon the circular and upon the carton, that the revolver in action does discharge sparks or flame of sparks. There is no allegation whatever of any intentional fraud perpetrated by defendant. Indeed, counsel upon the argument of the appeal disclaimed any such contention. There is no negligence whatever in the manufacture of the pistol alleged in the complaint. Between the plaintiff and the defendant there was no privity of contract and the plaintiff seeks to recover solely upon the ground of liability on the part of the manufacturer of an article sold to a third person. The leading early case on the question was that of Thomas v. Winchester (6 N. Y. 397), where poison was falsely labeled by the manufacturer and sold to a druggist who in turn sold it to a customer. The customer was awarded damages from the seller because of the latter’s negligence in failing to properly label the ingredients of the bottle, putting human life in imminent
The appellant, however, apparently rests his claim upon the theory that the defendant was liable for advertising this pistol as absolutely harmless, whereas, in fact, the plaintiff’s clothing was ignited from the use of the pistol. As before stated, in the Illinois case this very pistol was held to be not inherently dangerous. In Kuelling v. Lean Mfg. Co. (183 N. Y. 78), in a well-considered opinion by Judge Bartlett, it was said (at p. 89): “ The cases establish the legal principle that one who sells an article knowing it to be dangerous by reason of concealed defects is guilty of a wrong, without regard to the contract, and is liable in damages to any person, including one not in privity of contract with him, who suffers an injury by reason of his willful and fraudulent deceit and concealment,” and in the opinion Judge Bartlett stated (at p. 85): “ ‘ There must have been a false representation, known to be such, made by the defendant, calculated and intended to influence the plaintiff, and which came to his knowledge, and in reliance upon which he, in good faith, parted with property or incurred the obligation which occasioned the injury of which he complains.’ ” In the case at bar there was no allegation of fraud to bring the case within the authority of the Kuelling case. In Field v. Empire Case Goods Co. (179 App. Div. 253) it was held: “ It is clear, therefore, that an action cannot be maintained upon the facts alleged in the complaint, which do not remove the case from the general rule that an action for negligence cannot be mavn
It seems to us, therefore, where, as in this case, there is an entire absence of privity of contract between the manufacturer of the toy and the plaintiff there can be no recovery for personal injuries, unless the article was inherently or imminently dangerous and defectively manufactured or where the manufacturer was guilty of some fraud or deceit in concealing known defects in the manufacture rendering the article dangerous. In the case at bar there was no allegation that the article was imminently or inherently dangerous or defectively manufactured nor is there any claim of fraud or deceit on the part of the manufacturer of the revolver. On the other hand, the manufacturer of the revolver advertised the same to emit a flame of sparks. It is a matter of common knowledge that sparks such as come from flint or the striking together of hard metal when properly applied to inflammable material will induce a fire and flame.
We think the defendant in advertising this revolver as absolutely harmless did so concerning the ordinary use of the toy pistol. It is a matter of common knowledge that many fatalities result from the use of toy pistols and that tetanus following the use of toy pistols is annually prevalent. Organized means are adopted to avoid the danger resulting from such use. That the revolver' in suit as such was entirely harmless in every respect seems entirely clear. When the defendant represented this pistol to be absolutely harmless it was with reference to its being harmless in its ordinary use as a pistol. Used in the ordinary way for which it was intended to be used it was harmless, but when used in a manner in which the infant plaintiff used it, injury, of course, resulted. The manufacturer of the article could not be expected to foresee the use of this toy pistol in the manner in which it was used by the plaintiff at the time his clothing was ignited. When the article was represented as being absolutely harmless it was as a pistol and not otherwise. Unquestionably this little toy pistol might be used as a weapon of offense and might cause serious injury by being used by a small boy in striking a companion. As well might it be said that the manufacturers of baseball bats in general use by children should warn against the danger of using a bat otherwise than in the use for which it was intended. It very frequently happens that a baseball bat in the hands of a small boy may be and is used as a weapon of offense and may thus cause very serious injury, although, as ordinarily and properly used the bat would be entirely harmless. We think the defendant should not be held to have foreseen that
“ It is not alleged in the declaration nor is there any proof that the toy pistol was defective in construction. Therefore, cases dealing with accidents occurring through defective construction of an article are not in point.
“ Plaintiff’s declaration did not allege that the defendant fraudulently or deceitfully misrepresented the toy pistol to be harmless when it was in fact dangerous, nor was there any evidence in the record tending to show this to be the fact. Fraud and deceit, like any other fact, must be affirmatively shown, and to make out such a case there must be proof of knowledge and intent to deceive on the part of the one making the representations, and this knowledge and intent must rest upon the fact that the article in question is otherwise than as represented. The evidence shows that the toy pistol was harmless when used as an ordinary toy pistol would be used. There are many ways in which the pistol might be used to inflict injury, as by throwing it at some one or striking some one with it, or other unusual uses. . The representation that the pistol was harmless referred to the ordinary and usual uses of a toy pistol
It was certainly an act of contributory negligence on the part of this boy if sui juris or of his guardian if non sui juris in placing him in an extremely hazardous position dressed in highly inflammable material and placing at his disposal one of these pistols advertised to emit a flame of sparks. This pistol, while advertised as harmless, was not advertised as fool-proof. The discharge of the pistol emitted no projectile and caused no burn.
The appellant relies largely upon the case of Henry v. Crook (202 App. Div. 19), a decision of the Third Appellate Division irons which an appeal does not appear to have been taken and which appears never to have been cited in any other case. In that case, however, the plaintiff’s injuries were sustained as the result of a small wire covered with combustible substance which was lighted and in burning threw off sparks and burning particles. The infant plaintiff, a girl, was injured through the ignition of her clothing from the burning coal upon the wire. The facts in the case at bar are entirely distinguishable from those in the Crook case. In the Crook case there was a representation on the wrapper containing the sparklers that u the sparks are harmless,” and that the contrivance was a perfectly harmless article for indoor and outdoor celebrations. The Third Appellate Division held that the language of this representation Would give one the impression that a fire could not be ianited from their use. The court held that the manufacturer should have gone further and warned the public that the resulting coal upon the wire might ignite inflammable material. In the case at bar there is no allegation that the defendant represented that the sparks or flame of sparks emitted from the revolver would not set fire to inflammable material. On the contrary, the illustrations upon the folder and upon the carton containing the revolver clearly show that by using the same under some circumstances a burning fire would result.
We do not think there is any cause of action set forth in plaintiff’s complaint. The judgments and orders appealed from should be affirmed, with costs.
Martin, J., concurs.
In each case: Judgment and order reversed, with costs, and motion denied, with ten dollars costs.
