266 Mass. 70 | Mass. | 1929
The plaintiff, a minor child of a tenant in premises owned by one Andreottola, brings action against the defendant, a jobber in plumbers’ supplies, for injuries caused by the explosion of a kitchen boiler, or hot water tank, sold by the defendant to Andreottola and installed in the premises by plumbers employed by Andreottola. The case is before us upon exceptions taken by the plaintiff to an order directing a verdict for the defendant, and to a ruling excluding certain evidence.
The jury could have found that a servant of the defendant called upon Andreottola at the building then in process of erection and obtained orders for the materials to be used in supplying hot water. He was authorized to take orders for all kinds of appliances to be used in connection therewith, but was not a plumber, nor a contractor for the erection of any particular system of hot water supply. Andreottola assented to the purchase of such articles as the defendant’s servant suggested would be needed. Among other things, he ordered two twenty-five gallon copper hot water tanks
The defendant denied that it had knowledge of the expert’s efforts; or knowledge that, owing to changing conditions, the unriveted boiler in common use had become a source of danger. It paid no attention to such matters, but took the “say-so” of the manufacturers with regard to the capacity, use and strength of the tank.
There was no error in the exclusion of the testimony offered. It proved merely the belief of the witness, and his effort to induce others to believe, as he did, that a hot water tank was unsafe if constructed as these were. It had no
We find nothing in the case to take it out of the general rule that a seller takes upon himself no duty or obligation other than that which results from his contract. Davidson v. Nichols, 11 Allen, 514, 518. Pitman v. Lynn Gas & Electric Co. 241 Mass. 322, and cases cited. In Barabe v. Duhrkop Oven Co. 231 Mass. 466, and Kelly v. Pittsfield Coal Gas Co. 257 Mass. 441, cited by the plaintiff, there was either a direct privity of contract between the parties, or, in the instance of one of the plaintiffs in the former case, an ordinary liability in tort. Here the plaintiff is the child of a tenant of the purchaser, in no contractual relation to the seller. It cannot be said that a kitchen hot water tank is an article recognized as inherently dangerous to life or property. See Thornhill v. Carpenter-Morton Co. 220 Mass. 593.
There was not enough to entitle the plaintiff to go to the jury. The case falls within the principles illustrated by Christensen v. Bremer, 263 Mass. 129; Lebourdais v. Vitrified, Wheel Co. 194 Mass. 341; Pitman v. Lynn Gas & Electric Co., supra; Tompkins v. Quaker Oats Co. 239 Mass. 147; Barrango v. Hinckley Rendering Co. 230 Mass. 93; Burnham v. Lincoln, 225 Mass. 408.
Exceptions overruled.
Memorandum.
On the thirtieth day of January, 1929, the Honorable Fred Tarbell Field was appointed a Justice of this Court.
He first sat with this Court at the sitting in Boston for the Commonwealth on the fourth day of February, 1929.