133 F. 485 | 7th Cir. | 1904
Lead Opinion
(after stating the facts). Plaintiff contends that defendant, outside and independently of its contract with the sprinkler company, owed her a duty to use reasonable care in constructing the steel support; that the evidence shows that defendant failed to exercise such care; that such failure was the proximate cause of her losses; and therefore that she has made out a good cause of action against defendant. And in support of her contention plaintiff cites numerous authorities.
On the other hand, defendant insists that this case falls within the rule that a contractor, manufacturer, or vender is not liable to persons who have no contractual relations with him for negligence
If the sprinkler company had suffered from defendant’s omission of the tie member, that company could have maintained against defendant an action ex contractu, for defendant had engaged to put in the tie member, or an action ex delicto, for defendant failed to discharge a duty it had assumed to the sprinkler company. In both cases the measure of right and duty would be the same, because it would be intolerable that an action ex delicto should be maintained by one contracting party against the other on account of the complete and exact performance of the contract. If defendant owed to the sprinkler company any duty to exercise care that the completed structure should withstand the wind, then, if the contract had called for the very steel support that defendant erected, full performance of the contract would be no defense to an action ex delicto for breach of the supposititious duty. It follows that the only duty owing by defendant to the sprinkler company was to perform the contract as it was made, and that the only party who could sue defendant for a breach of the duty that was created and measured by the contract was defendant’s contractee, the sprinkler company.
• Plaintiff cannot recover from defendant simply by showing defendant’s breach of its contract with the sprinkler company, nor simply by showing defendant’s breach of its duty to the sprinkler company. There was no contract relation between the parties to this case. What duty arose from the fact that defendant went upon plaintiff’s building to execute its contract with the sprinkler company? There is the general maxim of the law of negligence that one, in following his business or pleasure, shall use reasonable care to avoid injury to others. That is a duty owing from everybody to everybody. And in this case, if defendant’s workmen, during the erection of the steel support, had negligently dropped a
But plaintiff’s case requires her to assert that defendant owed her the duty to use reasonable care to see to it, before leaving the job of erecting the steel support, that the final structure would not be apt to be blown over on account of the lack of the proper number of steel girders to make it safe. If such a duty existed, it would he one owing equally to the passer-by in the street, it would have being separate and apart from the duty that was created and measured by the contract between defendant and the sprinkler company, and it might or might not be coextensive with defendant’s duty to the sprinkler company. If it were coextensive, it would be for the reason that defendant’s contract with the sprinkler company called for such a steel support that the final structure would be reasonably safe. And since a duty cannot be shifted, defendant could not rely on the proposal of its customer, but would have to determine for itself, and at its own peril, whether or not the steel support shown in the proposed contract would in fact be sufficient to co-operate properly with the other parts of the system to make a reasonably safe final structure. If defendant’s alleged duty to plaintiff were of different dimensions from those of its duty to the sprinkler company, it would be for the reason that defendant’s contract with the sprinkler company did not call for such a steel support that the final structure would be reasonably safe. And in such a case defendant would be confronted with the situation that its performance of its duty to the sprinkler company would be a' breach of its duty to the rest of the world.
Defendant’s supposed duty to plaintiff being created by law, if at all, and therefore being absolute, and defendant’s duty to the sprinkler company being of a size determinable by the contracting parties, the question of the two duties’ coextensiveness is irrelevant, for, if defendant owed plaintiff the supposed duty, that duty could not be diminished or altered by defendant’s contract with another. Hence, in-inquiring into the origin, nature, and extent of defendant’s duty to plaintiff, the irrelevancy of the terms of defendant’s contract with the sprinkler company. And since the terms of the contract are immaterial, it is obvious that the question of performance is impertinent on the part of any one but the sprinkler company.
If defendant, constructor of one part, was bound to use reasonable care that the entirety, when turned over to the possession and use of a stranger, should withstand the winds, so were the builders of other parts. Take the tank company for example. It came upon the premises after defendant had gone. The fact was obvious that one side of a triangle was missing. The final effect of
To the rule there are exceptions. One must not, knowingly or unknowingly, fail to exercise care in the preparation or sale of an article intended to affect human life. One must not knowingly send out an instrumentality which is imminently and immediately dangerous, without notice of its nature and qualities. From the steel support, as defendant left it, no danger threatened. None came from it immediately, but only through additions and acts of the tank company, the sprinkler company, and plaintiff. This case is not within the exceptions. And furthermore the subsequent and independent intervening acts of the tank company, the sprinkler company, and plaintiff saved defendant’s omission of the tie member from being the proximate cause of the accident.
Sibley on the Right to and Cause for Action, p. 44; Enc. of Law & Procedure (section on “Actions”); Whitaker’s Smith on Negligence (2d Ed.) p. 111; also page 32; Pollock on Torts (Ed. 1887) pp. 347, 350 ; Bickford v. Richards, 154 Mass. 163, 27 N. E. 1014, 26 Am. St. Rep. 224; Bishop on Noncontract Law, § 79; Thompson’s Commentaries on the Law of Negligence, vol. 1, p. 626; Addison on Torts (Dudley & B. Ed.) p. 17; Shearman & Redfield on Negligence (4th Ed.), vol. 1, p. 23, § 22; Huset v. J. I. Case Threshing Machine Company, 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303.
Winterbottom v. Wright, 10 M. & W. 109; Collis v. Selden, 3 C. P. 495; Mayor of Albany v. Cunliff, 2 N. Y. 165; Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 513; Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638; Necker v. Harvey, 49 Mich. 517, 14 N. W. 503; Daugherty v. Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St Rep. 204; Curtin v. Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St Rep. 220; Fitzmaurice v. Fabian, 147 Pa. 199, 23 Atl. 444; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St Rep. 482; Bailey v. Northwestern, etc., Gas Co., 4 Ohio Cir. Ct. R. 471; Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767; Davidson v. Nichols, 93 Mass. (11 Allen) 514; Carter v. Harden, 78 Me. 528, 7 Atl. 392; McCaffrey v. Mossberg & Granville Mfg. Co. (R. I.) 50 Atl. 651, 55 L. R. A. 822; Burke v. De Castro, 11 Hun, 354; Swan v. Jackson (Sup.) 7 N. Y. Supp 821; Savings Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 11 C. C. A. 253, 27 L. R. A. 583; Bragdon v. Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A. 567; Huset v. J. I. Case Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303; Salliotte v. King Bridge Co., 122 Fed. 378, 58 C. C. A. 466, 65 L. R. A. 620; Blakemore v. B. & E. Ry. Co., 8 El. & Bl. 1035; Barrett v. Singer Mfg. Co., 31 N. Y. Super. Ct. 545; Marvin Safe Co. v. Ward, 46 N. J. Law, 19; Marquardt v. Ball Engine Co., 122 Fed. 374, 58 C. C. A, 462; Wharton on Negligence (2d Ed.) 438.
Dissenting Opinion
I cannot concur in the conclusions reached, but have time only to outline, in the most general way, the ground for my dissent.
I do not base my dissent on the proposition that defendant owed the plaintiff any general duty, irrespective of his contract with the Sprinkler Company, to see to it that the structure designed by the architects was reasonably safe. I build my view of plaintiff’s right of action solely on defendant’s failure to put in the tie member of the triangle called for in the plans, and solely because it was called for in the plans, a failure that confessedly caused the injuries. Upon this predicate let me briefly restate the salient facts.
Plaintiff had a contract with the Sprinkler Company to install in her building a sprinkler system according to certain plans and specifications made a part of the contract between them. The plan specified a steel triangular support for the tank, including, specific
But I do not rest my conclusion upon the existence of privity of contract. In matters involving, as these contracts did, the personal and property safety of others than the immediate parties to the contracts, there is, it seems to me, a duty raised to take reasonable care that the contract obligations are carried out. Public policy injects into such a relationship an obligation additional to the bare contractual obligation — an obligation running to all who are directly affected by the performance or non-performance of the contract.' There is thus raised between defendant agreeing to put in an essential part of the building, according to plans and specifications, and the plaintiff affected in personal and property safety by defendant’s performance of that obligation, a privity of duty that may be made the basis of an action ex delicto.
The character of modern constructions, and the minute divisions and sub-divisions that enter into them, make the existence of such privity of duty almost imperative. Where, in the old times, when the precedents relied upon were established, but two or three trades were employed in the construction of a building, a score or more are now called in. The modern structure is the work of many trades. To safely erect such structures, plans and specifications coveting the whole, by competent architects, are not simply a convenience — they are a necessity. Through such plans and specifications alone, can the work of the many trades be co-ordinated. Through them alone, in the midst of diversity can the owner build to a given end. Plans and specifications, therefore, are essentially the .Taw of the Building. They are in practical effect, the owner’s direction to the contractors — not simply to the immediate contractor, but to all who take contracts subservient thereto, a direction that each contractor by taking his contract in reality accepts; and safety and gbo.d faith demand not simply that contractors
Judgment affirmed.