88 So. 21 | Ala. | 1921
Appellant, plaintiff in the court below, seeks to recover of the appellee damages sustained by an explosion occurring when a lump of coal was placed upon the fire. In numerous counts of the complaint she seeks recovery in a tort action resting the averments of negligence in that the employés of defendant in the operation of the mine negligently placed, or allowed to remain, some form of explosive in the coal.
The plaintiff did not stand in privity of contract with the defendant, and it is conceded by counsel for appellant that the general rule of law is that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relation with him, for the construction, manufacture, or sale of the articles delivered. 24 R. C. L. 408 et seq., and authorities cited.
To this rule, however, there are well-recognized exceptions, as, for instance, where defendant has been guilty of fraud or deceit in the sale of the article, or where the thing causing the injury is of an obnoxious or dangerous character. In this latter exception has been included the manufacture and sale of dangerous drugs; the leading case in this country being Thomas v. Winchester,
The Supreme Court of Tennessee, in Liggett Myers Tobacco Co. v. Cannon,
In Bellingrath v. Anderson,
By some courts the exception has also been extended to cover the negligent manufacturer of automobiles. Olds Motor Wks. v. Shaffer,
Many authorities are also reviewed in Huset v. Case Threshing Co., 120 Fed. 865, 57 C.C.A. 237, 61 L.R.A. 303. See, also, Morton v. Sewall,
It is argued with much force that if the ultimate consumer, who is without privity of contract, may recover against a manufacturer and dealer in drugs, canned foods, and bottled drinks, for damages resulting from the negligent manufacture of such articles, that the same rule should apply to the operator of a coal mine who disposed of coal for domestic purposes wherein, through the negligence of some of its employés, was concealed some explosive causing damage. We are persuaded, however, that the underlying principle of these cases, and the foundation for this exception to the general rule, is not broad enough to cover the case made by the negligence counts in this complaint. It is to be noted that the complaint does not allege that defendant was engaged in the sale of coal to the general public or to retailers for distribution to the public, but for aught that appears defendant was mining coal for its own use, and the procurement of coal by the plaintiff's husband was but a more or less isolated transaction. As said in 24 R. C. L. 514:
"It has been observed that the real ground of liability of the seller to an ultimate consumer is, more properly speaking, a duty one owes to the public not to put out articles to be sold upon the markets for use injurious in their nature, of which the general public have not means of inspection to protect themselves."
In the same authority and supported by numerous cases is the following:
"The foundation of liability here, as elsewhere, is a superior knowledge of the manufacturer or seller as to the peril embodied in the article sold."
The exception here referred to grew out of the necessity of the case, sustaining a wise public policy for the protection of human life and health, and placed upon the manufacturer and vendor of drugs, foods, and beverages, a high degree of care because of their superior knowledge of the articles manufactured, and the necessary reliance which the public must place upon them. As expressed in Magetti v. Armour Co.,
In the instant case, the defendant was not dealing with a dangerous article, and one from the use of which any harm would reasonably be anticipated. There is no averment that the defendant knew of the existence of this explosive in the lump of coal, nor is there anything to indicate that it was the duty of the defendant to inspect the coal before allowing the plaintiff's husband to procure the same for domestic purposes. Indeed, we think it must be admitted that the unfortunate accident here set up is most unusual. The cases cited by counsel have been previously noted herein — none of which are analogous — and our somewhat extended research has failed to disclose one of like nature. What was said by the Supreme Court of Wisconsin in the case of Hasbrouck v. Armour Co., supra, where a needle was found imbedded in a cake of soap, is applicable to the present situation where an unexploded dynamite cap was found in a lump of coal; the court saying:
"The unintentional and negligent dropping of a needle into the mixture is a remote possibility, an extraordinary occurrence."
And further in the opinion the court quotes the following definition of "negligence":
"Negligence in 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 reasonably probable result thereof."
In the case of MacPherson v. Buick Motor Car Co., supra, discussing the danger, and knowledge thereof on the part of the manufacturer, the court said:
"There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. * * * If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent."
The defendant here is not charged so much with negligently mining the coal as with the consequence of the disposal thereof to the plaintiff's husband. The defendant is not a manufacturer, certainly not in the sense treated by the authorities cited herein, and therefore is not presumed to make inspection *294 of all coal for so unexpected and unusual a danger as set forth in the complaint, and, indeed, an inspection of each lump of coal for such purpose would be wholly impracticable. Therefore the defendant was not expected to have a superior knowledge of such danger. However, we will not prolong the discussion, for we are clear to the conclusion that the complaint here fails to show a case within the exception noted, and the demurrers taking the point were properly sustained.
Two of the counts seek recovery as for a breach of an implied warranty. There was no privity of contract between the plaintiff and defendant, and the decided weight of authority holds to the view that a stranger to the contract may recover only in actions ex delicto as for a breach of some duty not arising from the contract. Some of the authorities above cited give some discussion to this question, and we are of the opinion that our own cases of Ellis v. B'ham, Waterworks Co.,
We therefore conclude that the judgment of the trial court should be here affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.