45 So. 2d 262 | Miss. | 1950
At the beginning of the events, and all during the period involving the facts and circumstances of this case, appellant was a dealer in butane gas tanks, among other articles of merchandise, and appellee was a farmer living on his farm in Simpson County.
This action was filed in the circuit court by appellee seeking damages of $10,188.43 from appellant as a consequence of an alleged sale to him of a defective butane gas tank, and negligently refusing to repair or replace it, after notice. It is to be steadfastly borne in mind that there is no testimony in the record that appellants contracted with appellee to keep the tank in repair. The evidence, therefore, as to alleged subsequent leaks developing is pertinent only to the issue whether the tank, when its sale was completed, was defective, and negligently sold in that condition. The declaration is somewhat ambiguous in that it seems to embody both an action ex contractu on-an implied breach of warranty of sale and
It was indispensable to appellee’s theory on which the action was brought and tried that appellants knew, or, by the exercise of reasonable care, should have known, that the tank was defective at the date of its sale and delivery — if in fact it was defective at all — and negligently sold it to appellee, in such condition. Certainly, if it were not defective at all when sold and delivered, then, in that event, there was no justiciable right of action.
At the conclusion of all of the testimony, appellant requested that the jury be peremptorily instructed to find for it, and this motion was overruled, the jury subsequently bringing a verdict of $2,000 for appellee. Motion for new trial was overruled, and the case appealed here with numerous assignments of error. However, in view of the conclusion we have reached, it is useful to discuss only one aspect of the trial. Was the lower court in error, when appellant’s motion, supra, was overruled? If so, no other point need be considered. However, it is not to be assumed that thereby we are overruling other assignments of error that may have merit. We pretermit them.
Appellant obtained.the tank from the Delta Tank Manufacturing Company of Baton Rouge, La., shown in the record without contradiction to be one of the best manufacturers of such tanks. Appellant had bought from them and resold to its customers theretofore, some eight or nine hundred of these tanks without incurring trouble or complaint. As required by law, the tank had been inspected by a representative of the Motor Vehicle Commission. In this regard, a former inspector for the Motor Vehicle Comptroller of Mississippi testified that he could not recall ever finding any leaks in tanks manufactured by the Delta Company. As a result of the inspection of this particular tank by the State inspector, it was tagged by the State. This tag certified that it was approved for sale and installation in Mississippi, in other words, free from defects. In addition, at or about the same time, an inspector for an insurance company which issued policies of insurance on such tanks, inspected it from that angle, and pronounced it acceptable for insurance.
Nevertheless, appellee contended, and testified, that the tank was defective because some months after installation the water in his well began to taste bad and smell like gas. This he reported to appellant, and a State inspector and one of appellant’s employees made an inspection of the tank and applied a mercury test. However, no leak was discovered. In the meantime, appellee
After appellee’s second complaint in 1947, appellant, according to its evidence, offered to repair the tank or give appellee another one, if it needed repairs or if it could not be repaired, respectively, in order to satisfy him, but without legal obligation to do so, as indicated in the record. This offer appellee rejected. This, however, is not of substantial importance on the real issue in the case, and that is, was appellant liable in damages to appellee for having sold him a defective butane tank? The only effect on the issue, as we see it, of the subsequently developed leaks, taking appellee’s evidence as true, is that if the tank were defective, it was a latent defect, not discoverable to appellant by a reasonable inspection.' Such inspection was, without contradiction, as
Appellee seeks to uphold the verdict and judgment of the trial court by citing Void on Sales, pages 458, 459, 460 and 461, dealing with liability both for breach of warranty of suitability and negligence in sales. We do not think the tests cited support appellee’s contentions under the facts of the present case. As shown, supra, the court ruled out the warranty feature, but even if he had not, we find no breach of such h warranty, in the sense that it was not reasonably suitable for its prospective use at the time of the completed sale, if it had been in issue; nor do we find any negligence in the record. Emphasis is placed by appellee upon the rule that violation of a statute or ordinance designed to protect buyers of the article will generally be considered negligence as a matter of law. The reason for his emphasis on this point, he indicates, is that Chapter 317, Laws 1948, is violated. This act repealed Chapter 265, Laws 1946, which in turn, repealed Chapter 170, Laws 1940, and other laws. We do not think any violation of the pertinent laws cited has been shown, and the only one of them in effect at the time of the sale and installation, (in other words, delivery) of the tank was Chapter 170, Laws 1940.
Appellee further calls our attention to Section 1455, Code 1942, providing that “All questions of negligence and contributory negligence shall be for the jury.” However, that statute does not change the fundamental condition that there must first be negligence, and without it, there is nothing for the jury. Here, as we have intimated, we find no justiciable negligence in the record, even-within the framework of appellee’s quoted definition of the term, from Black’s Law Dictionary, 3rd Edition, page 1229, or otherwise. On this point, appellee also cites Becker Asphaltum Roofing Company v. Murphy, 224 Ala. 655, 141 So. 630, an Alabama case, which we do not deem in point. Neither is Mississippi Power & Light
Appellant argues that even if there were negligence, as complained, which it denies, it is not liable because the alleged damages sought by appellant were not foreseen or foreseeable when the sale was made; that it was not the proximate cause of such damage; and that appellee could and should have minimized such damages, to a very small amount, but did not do so, preferring to continue to use the tank and let the alleged damages accumulate. However, we do not now pass on those points, even though their merit be apparent, for the reason that it is not necessary because of our conclusion that appellant should have been granted the peremptory instruction requested at the end of all of the testimony.
Appellant cites Illinois Central Railroad Company v. Cathey, 70 Miss. 332, 12 So. 253, holding that recovery for negligence must have a better foundation than mere possibility; and others to the same effect: McCain v. Wade, 181 Miss. 664, 180 So. 748, in which we declared that a plaintiff must show with reasonable certainty or definiteness that the party charged is the party
In the case at. bar, there was an abundance of undisputed evidence that at the time and delivery of this tank, it was sound and free of defects, fit and suitable for use as a storage tank for butane gas. If it be conceded, for sake of the discussion that some considerable time later it developed a leak, it must, therefore, have resulted from a latent defect not discovered or discoverable by exercise of the reasonable and careful inspection at the time of sale and delivery, and unknown to appellant , at that time. We think the case of Pillars v. R. J. Reynolds Tobacco Company (Corr Williams Tobacco Company, distributor), 117 Miss. 490, 78 So. 365, 366, is interesting in this connection. In that case, we reversed the judgment of the lower court for the defendants, as to the manufacturer (but affirmed it as to the distributor) saying: “The distributor could not have suspected that human toes were concealed in the plug, and was not negligent in not discovering the noxious contents of the plug. ’ ’ By this citation, we are not to be taken as holding the manufacturer of the tank in the case at bar to be liable in damages to appellee — that matter is not before us, nor are we to be considered as intimating as 'much, directly or indirectly. The appellant in the instant case may be compared with the distributor in the cited case, although, in fact, it was a retail dealer.
In Prosser on Torts, Hornbook Series, we glean the following, Section 82, Page 669: “The liability of the
Here, appellant had the benefit of reasonable inspections by an official of the Statfe. of Mississippi, designated by law to make it, and by an inspector of an insurance company interested in insuring suck tanks, wkick ke found would he justified in accepting for insurance.
In view of what we have said, we are constrained to reverse the judgment of the trial court, and render a judgment here for appellant, since its motion for a peremptory instruction at the completion of all of the testimony, should have been sustained.
Reversed and judgment here for appellant.