139 Wis. 357 | Wis. | 1909
The complaint averred that the respondent 'Armour & Co. is a corporation of Illinois, licensed to do business in this state, and the respondent S. Reymann Company is a Wisconsin corporation. The former is engaged in the manufacture and sale throughout this state of toilet soap, •and the latter is doing a mercantile business in the city of ■Oshkosh. Armour é Co. make and sell “Armour’s & Co.’s Toilet Soap No. 175” as a harmless article for the purpose of use in cleaning the face, hands, and body, and hold out to the public that this soap would supply every need for all toilet purposes, and guarantee the purity and harmlessness thereof, and that the soap is free and clear from all harmful ingredients or foreign substances which might injure persons using the same in the ordinary manner. On and prior to September 20, 1906, Armour & Co., its agents, servants, and employees, carelessly and negligently permitted and allowed a cake of the soap so manufactured by it to contain a needle or small round sharp piece of steel embedded therein. This made the use of said soap dangerous and was liable to cause injury to persons using the soap in the ordinary and usual manner. Some time prior to September 20, 1906, Armour & Co. sold and delivered to 8..Reymann Company a quantity of this soap, in which was contained the defective piece or •cake a\)ove described, in which the needle was so concealed as
The pleader says this injury was sustained by reason of “want of ordinary care and prudence of the defendants, their .agents, servants, and employees, in manufacturing said soap and putting the same on the market for sale for general use and allowing a sharp piece of needle or steel to become embedded therein which was liable to injure persons using the same in the ordinary and usual manner.” Each of the defendants demurred: “(1) For that it appears . . . that several causes of action have been improperly united. (2) For that it appears . . . that the complaint does not state facts sufficient to constitute a cause of action against this defendant.”
The pleader, appellant in this court, begins his brief with this statement: “This is an action in tort founded upon negligence alleged in the complaint, set forth at length in the printed case.” In the face of this authoritative declaration •of the purpose of the pleader we shall spend no time searching for any other or different intent on his part. The averments of the pleading are appropriate to such declaration.
Before we can determine whether or not two causes of ac
The first inquiry, therefore, is whether the foregoing pleading states a cause of action for negligence. Negligence in law consists in the omission or inadvertently wrongful exercise of a duty, which omission or exercise is the legal cause of damage to another. This duty may by operation of law arise be
The manufacturer or dealer who puts out, sells, and delivers, without notice to others of its dangerous qualities, an
We must assume upon this pleading that the needle was not
“Negligence in the law is not mere carelessness, but is ■careless conduct under such circumstances that an ordinarily prudent person would anticipate some injury to another as a reasonable and probable result thereof.” Johanson v. Webstar Mfg. Co. 139 Wis. 181, 120 N. W. 832.
Another definition is that “negligence consists in the failure to observe that degree of care which the law requires for the protection of the interests likely to be injuriously affected 'by the -want of it.” Kendrick v. Towle, 60 Mich. 363, 367, 27 N. W. 567; Texas & P. R. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Hope v. Fall Brook C. Co. 3 App. Div. 70, 38 N. Y. Supp. 1010; Webb’s Pollock, Torts (Am. ed.) 29, 30, And cases in notes.
There was therefore in the instant case no breach of a duty
With reference to tbe 8. Heymann Company there is no ■negligence charged in tbe complaint. Tbe needle was so embedded in tbe soap as to be invisible to tbe naked eye. Tbe Heymann Company did not know of its presence in tbe soap. In tbe exercise of ordinary care it could not have been ascertained that tbe needle was in tbe soap. This needle happened in tbe soap through no omission or default of theirs. They consequently are not bolden to tbe plaintiff upon any .ground of negligence.
By the Court. — Tbe order sustaining tbe demurrer is affirmed.