*1 40,995 No. Rapp, Appellee. C. Appellant, Steele,
Faith J. 1053) (327 P. 2d July 7, Opinion 1958. filed argued Smith, Doug- Schaefer, Wichita, V. Paul R. James Wichita, Wetta, him Shay R. were with on the briefs for Leo all E. las
appellant. *2 Wichita, argued Hershberger, Jones, the and A. W. of Richard H. E. Jones, Palmer, Thompson, Jones, E. William E. L. Robert Ne- P.Wm. Jerome Wichita, Fugate, all were with him on for H. of the briefs Smith and Justus appellee. by the court was delivered of opinion The damage action personal This for injuries Schroeder, J.: a bottle of fingernail the when by polish sustained re- the mover, plaintiff’s sold defendant to by employer, ignited and alleged, of action are the first causes exploded. Two based on breach of and second on implied warranty. The to both trial court sustained demurrers the first amended petition petition, and the second amended which an following was appeal those this court from duly orders. perfected Is (1) The are: questions involved second amended petition statute barred of limitations? by the and Does the (2) second show on its face an which, intervening cause as law, a matter of prevents negligence of the defendant from being plaintiff’s of injuries? a resident Kansas, of appellant, Sedgwick County, filed this district court Sedgwick
action in the of on County 7th day of February, against also a appellee, resident of Sedgwick County, engaged business distributing and selling prepara- tions and for supplies beauty shops, under the trade name of the & Barber Service Beauty Supply Company, place busi- Francis, Wichita, ness at 122 North St. Kansas. portions the second amended petition material herein are brief and a full
relatively disclosure of allegations these will serve give indicate facts and precise nature of the pleading under attack. following is alleged under the first cause of action allegations omitting which relate to damages: products Among “3. by beauty sold shops the defendant to in Wichita prior vicinity 10, 1955, February liquid and product was a known Finger Kenra Nail Polish Remover. February Steele, plaintiff, “4. employed That on Faith operator beauty beauty as a shop- at Salon, Beauty known as East Russel’s Avenue, Douglas Wichita, Kansas, approximately located at 2822 East and at p. day, severely 1:45 and seriously o’clock m. on she was burned injured, forth, gallon permanently as hereinafter set when a bottle Kenra Finger liquid ignited exploded Polish Remover and the Nail broke beauty shop, fire at said as the result of the de- caused a gallon as hereinafter set the time the fendant forth. At said bottle broke it by Jamison, being beauty operator employed handled another at Beauty pouring Finger Russel’s Salon. She was some Kenra Nail Polish East gallon Remover bottle said into a smaller container at mani- use her from for desk, gallon dropped by cure said bottle broke when her several inches to the floor. Finger exploded ignited Kenra Nail Polish Remover “5. The injuries plaintiff, previously alleged, caused sold Beauty gallon glass Russel’s Salon defendant to East in a one bottle sometime February prior Finger shortly Said Kenra Nail Polish Remover 1955. operators purpose being the defendant em- was sold used Beauty ployed East Russel’s Salon the course their work for the at fingernail removing polish fingernails purpose from customers. The knowledge product containing he sold said bottle had full when said defendant Beauty Salon the em- East that would handled and Russel’s used work, they pour, ployees there in the course said of their gallon bottle smaller at their said into containers use mani- from *3 desks, duty employees to such to sell said cure and the defendant owed container, give appropriate product warning or by to notice an in a safe and any imminently inherently dangerous quality or or such label otherwise neglected product, do, the defendant and failed all of which hereinafter set forth. Finger highly Kenra Nail Polish Remover was inflammable Such “6. plaintiff explosive was unknown substance. This and to and fact Jamison, by or but known should been was have known said Loretta Nevertheless, sold and Kenra defendant distributed said defendant. glass gallon bottles, fragile which he knew Finger Remover in or Nail Polish break, liquid might ignite explode, and would that the have known so should persons handling by them, dropped inches which were not several and if labeled give warning any way or contents were marked show or dangerous explosive. imminently inherently and so explosion proximate cause and fire which occurred at The “7. 10, Beauty February injuries Salon and of sustained East on Russel’s explosion fire, Steele, plaintiff, such was Faith omissions, following each of or which consisted of acts defendant to-wit: product, Remover, Distributing selling Finger Kenra Nail “(a) Polish knew, dangerous the manner in which defendant to use in it was which known, that it be used. or should product Distributing imminently selling a which “(b) was and in- appropriaté dangerous, giving an or notice label otherwise herently without quality. dangerous of its container for a the defendant “(c) use safe Failure to explqsive known, highly sub- knew, inflammable was a should have or (Emphasis added.) stance.” cause second of action the facts incorporated alleged in the
first, 7, and Paragraph the defendant except that said Kenra Finger did warrant Nail Polish impliedly Remover used, reasonably safe to handled and in the bottles glass was sold, at by employees shops which was course of beauty work, did their warrant such impliedly product was not imminently inherently dangerous substance, explosive warrant that impliedly did it could be handled and used em- at beauty shops in the ployees course their work their without injuries.” sustaining Other appropriate allegations were made relative to action. petition did not original specifically allege who handling
the bottle fingernail polish remover in question and in what manner it being used at the time it was broken and ignited. The defendant filed motion to require plaintiff make definite and certain in this respect, which motion was in part by sustained the court. plaintiff complied with this filing order her first amended petition, which incorporated the 5, additions required Paragraphs 4 but otherwise followed original petition. The defendant demurred the first amended petition, which partially argued to the court on the day 6th of May, at the argument which time was continued to the 13th day May, During argument 1957. on the 13th day May, on the foregoing demurrer the first amended petition, of the court filed her second amended permission petition. Subse- 21st day thereto quent August, the trial court sus- tained the demurrer to the first amended petition. On August 1957, the defendant demurred to the second amended petition on *4 ground the it was barred the by statute of limitations and further that it failed state cause of action in favor of the the defendant. This against demurrer was sustained day on the 9th 1957. September, the Although is from the appeal ruling demurrers, on both ap- takes the pellant position the on the ruling demurrer to the moot, first amended is petition view of the second amended petition. made in the only changes second amended petition involved 5 and In 6. the first amended
Paragraphs the petition italicized
375 amended were petition 5 and 6 of the second Paragraphs words made. No other were changes omitted. the acquiesced the by appellee appellant
It is contended amended ruling petition on the demurrer to first in the court’s reason thereof petition amended fifing the second review. subject the first is not petition demurrer to amended amended barred petition then states that the second Appellee statute of limitations. It is clear from the facts that trial court prior ruling granted plaintiff, demurrer to first amended petition herein, Under file a second amended appellant petition. leave to these amended petition circumstances the effect of the second fifing to the first amended moot petition render the demurrer it. impossible the trial court should have considered It was so on the demurrer to ruling in the court’s appellant acquiesce amended fifing petition prior first amended second petition by first petition. of the court on the ruling the statute of limita- Is the second amended barred petition tions? of two statutory period filed within original petition was and, petition second amended was filed after
years although the injuries, it does not set new years up any two from the date of fact, alleged, cause of which is action. appeal, apparent original contention in this principal made second amended allegations additional petition. amplification allegations an only enlargement are petition of the original petition. this situation is stated Smith clearly
The rule applicable 228 P. 2d as follows: (Syl. 170 Kan. LaForge, 1)§ imperfectly petition alleges action but a cause of does so “Where a allegations detail, petition the additional of an amended with insufficient amplification original enlargement averments of are by setting definitely previously imperfectly pleaded more that which was out action, up a fact limita- and do not new cause of that the statute of set petition recovery, has run when the amended is filed not a bar to tions filing back to in such case the amended relates the date of original one.” in later cases. rule has been followed v. Farmers (Talbott This Elevator, 856; Kan. 256 P. 2d Maddox v. Union 174 Co-op Hill, 1073; Kan. 264 P. 2d Kan. Neptune, Hoffman *5 376 Co., 526; 178
826, Sundgren Transportation 267 Topeka P. 2d 83, 444; v. Broce-O’Dell 2d and Miller Concrete Prod Kan. 283 P. ucts, 77, 1072.) 182 Kan. 318 P. 2d intervening face an show its petition
Does the second law, which, of prevents cause matter the of the de- injuries? cause of plaintiff's fendant from the being proximate is proxi- taken issue of position appellant allegations mate under the of second amended petition, of and that the show on jury; one fact for does not which, law, cause as a of prevents face matter from being of the defendant cause injuries. This attack made plaintiff's upon ruling of the trial court that the second amended petition fails to state action. position wholly upon is based appellee the doctrine of an efficient independent intervening cause. It is urged that dropping bottle (alleged Paragraph Jamison an efficient 4) was cause which intervened to shield the defendant consequences from the alleged negligence. parties present question contentions calling for of certain
application elementary principles of law torts— of damages negligence. The applicable principles and rules to similar cases have been applied liberally treated by this court in discussing reviewing many opinions decisions in the Co., Clark following 268, cases: v. Powder 94 Kan. 320 146 Pac. 479, 340; L. R. A. 1915 E Cas. 1917 B Ann. Beldon v. 115 Hooper, 34; 224 Kan. Pac. Rowell v. Wichita, 162 City 176 Kan. 590; 2dP. Shideler v. 172 Habiger, 211; Kan. 243 P. 2d Hickert 182 Kan. Wright, P. 2d 152. Reference is made to these opinions as a basis for further discussion herein. serve no purpose extend this unduly opinion by dis- cussing a greater number our former cases involving situations more or less similar to this one. The.doctrine of proxi- remote and established, mate cause is well and the difficulty does case not arise from a dispute abstract principles rules laid down cases, but in appraising facts of this case and in deter- mining what rules are applicable. It will be sufficient here to limit our considerations cases large part the parties principally rely.
The appellant Clark v. Powder supra; stresses City Rowell v. *6 Reed, 905; 319, 167 Kan. 205 2d Wichita, v. P. Flaharty supra; of Phillips 465; 376, P. v. Menninger v. 167 Kan. 207 2d Doyle, Noel 934; Foundation, 751, 175 Kan. 267 P. 2d and Emmerich v. Kansas Co., 443, Service 177 Kan. 280 2d Public P. 615. City in appellant these cases underlying principle Wichita, City relies well in Rowell v. follows: supra, is stated of . an “. . the rule that the causal connection between actor’s new, injury independent and an is of a broken the intervention efficient intervening cause, liability, subject quali- so that the actor without is intervening might reasonably fication if the foreseen or actor, negligence may proxi- been foreseen the first be considered the (Clark notwithstanding intervening Co., mate the cause. v. Powder 94 268, 320, 479, 340; 146 B Kan. Pac. L. R. A. 1915 E Ann. Cas. 1917 Fraser Railway Co., supra.) negligently also held that who has been one creates dangerous escape liability probable condition cannot for the natural and con- sequences thereof, although person may innocent act of a have con- the third Colson, tributed to the final result. See Crow 123 Kan. 256 Pac. 971, 53 A. L. R. where was said: it “ knowing ‘Where defendant knows or has reasonable means of conse- quences resulting usually likely not from are to oc- the act intervene so as to damage, although ordinary casion he is liable it be not an and natural conse- quence negligence.’ (p. 303.) .” Clark v. Powder an supra, agent of the defendant company well; left a of quart an lying near oil A work- glycerine solidified man, it, unskilled in the an explosives, use saw in effort to of prevent workmen, injury to himself and his fellow removed it an to abandoned where he in graveyard placed a crevice it in stone wall. Two years later some children found the glycerine, struck on a it rock and caused in explosion which they injured. were A judg- ment was affirmed. The court rejected the conten- tion that the act of in the workman moving glycerine prevented of the defendant from being the proxi- mate cause of injuries. The case was to presented this court after full appeal trial and in the judgment lower court. The court Syllabus said: ¶ dangerous inherently commodity “The owner glycerine of so solidified required highest degree keep to exert care custody to it in close prevent doing mischief, ceases; duty and that never and such owner is liable probable consequences all the natural any which flow from breach of duty.”
The court said further in the at opinion 276: page power “Here we reach doing the crux matter. No new mischief glycerine was communicated young solidified acts McDowell. glycerine That all time. doing inherent power mischief letting cus- happen close out likely accident was some terrible probable almost but natural tody in its use was one skilled of some dangerous handling experience no had skill inevitable. McDowell damage impending on prevent account he could to He did the article. best damage, doing attempted prevent its Gray’s negligence. he That Van effectively, knowledge dispose itof lack of sufficient account of but failed on agency shift and efficient to proximate to an unrelated does not amount powder company new cause of his cause from the delict making. own so, argument. ques- said, however, may then this is If “It drat mere harmony jury; clearly and this is itself into one of fact for tion resolves authorities.” Railroad, & 171 Mass. case v. Boston Albany Stone court case where this extensively E. was Clark quoted 51 N. *7 Court Massachusetts had Supreme spoken that the recognized its ideas are settled law. The precision with such accuracy Court Massachusetts there said the opinion: Supreme possible consequence, question but . is whether it was a “. . not occur, likely according ex- probable, is, to to usual whether it was die perience responsibility applicable to die true of mankind. That diis is test cases, wrong- very many according a like this held in to which a case has been responsible consequence according merely possible, doer not for a is is which experience, probable, only consequence to occasional but which is accord- a ing experience. ordinary anticipate provide and usual One to is bound against usually happens likely happen; what and what is would im- but it pose heavy responsibility guard too hold him bound like manner to against happen, what, unlikely said, what is unusual and itas is sometimes remotely degree slightly probable. high might, A of caution would, guard perhaps against injurious consequences merely possible; which are negligence, sense, legal (p. 541.) but it is not in a so.” omit to do excerpt quoted This was v. Co., Clark Powder and also supra; v. Beldon Hooper, supra. Clark v. Powder supra, recognized as case. leading there recognized running test through all the precedents cases was stated to be: “Is the analogous injury or damage natural and probable consequence of the original negligence? ” . The mere intrusion of an intervening agency does not excuse the always original wrongdoer. Wichita, In Rowell City supra, plaintiff, paying patron event,
at an amusement injured at Lawrence Stadium in Wichita, a beverage when bottle fell or City was thrown hit her on head. was there held error for the lower court to filed sustain demurrer to which petition against and a city, catering the lessee of stadium which company had the concession there. The court said concerning allega- tions of the that the of the defendants in per- the sale and mitting delivery of the bottles and them to allowing become vagrant in stadium first furnished the and the fall step, bottle, thrown, whether not pushed second step, be only reasonably to but anticipated known to defendants to have occurred previously according allegations the pe- tition. The court in discussing proximate cause to cases applied of this type there made an extensive summary cases in this jurisdiction which are accumulated and cited. The court there recognized the proximate or cause of an or- legal injury is dinarily question for the The rules jury. concerning proximate cause as applied cases of this were stated as type succinctly follows: proximate injury “The cause of an is that cause which in natural and sequence, by any continuous produces unbroken efficient injury injury occurred, injury without would not have being probable consequence wrongful the natural and act. probable consequences “Natural and foresight are those which human can anticipate they happen frequently they may expected because so to recur. “Where the knowing actor knows or has reasonable means that con- sequences usually resulting likely from the act are to intervene so as to damage, although ordinary occasion he is hable it be not an and natural con- sequence negligence. may produce “Two or mere events combine and concur to a result both (Syl. ¶¶7, 10.) be a (Emphasis added.) cause.” 9 and Reed, Flaharty supra, the court held that a demurrer to a
petition, that alleging the defendant’s automobile was illegally parked aon at highway without night lights, was properly over- ruled. The plaintiff was along the walking and another highway, struck automobile, automobile the defendant’s parked and drove it the plaintiff, into him. injuring It was contended that the parked a automobile created condition and the act of the driver that of the other automobile anwas cause which intervening prevented the of the illegal parking defendant’s from automobile being cause of the proximate plaintiff’s injuries. this conten- Rejecting tion, it that was said the defendant should have foreseen the pos- a sibility collision. The court stated in the syllabi: intervening might reasonably "If an act was foreseen or have been fore- actor, negligence may proximate seen the first his legal be considered the injury, notwithstanding intervening of the cause act. charged necessary negligence that one with not element of “It a precise injury anticipate sustained. have been able should marking proximate and line between precise for is no formula “There act, ordinarily consequences following negligent questions and a remote intervening including cause, alleged negligence, proximate and an whether ordinary anticipated tire exercise of have been foreseen or cause could (Syl. jury.” ¶| 5.) foresight, prudence 4 and and are case somewhat similar to Phillips Doyle, supra, sta- case defendants a service present operated on its facts. The kerosene, farmer, turned out ordered what tion and sold a who dis- After the mistake was be mixture of and kerosene. gasoline a mixture, covered, the defendants’ went to get employee lantern and it he and fell a overturning while removing tripped fire, set the badly house ignited mixture. spilling room of house. The who was in another burning appellate review was limited appeal defendants on conceded verdict for the plaintiff’s to the evidence sufficiency plain- by this court. The defendants contended tiff was affirmed no in the their tripping falling there was involved that this was an so that the intervening neg- employee, sale of the kerosene was not ligent gasoline mixture and injuries. This contention was re- plaintiff’s cause proximate court, Reed, Flaharty supra. relying upon jected'by Foundation, it was held Menninger supra, Noel v. error to sustain a demurrer in an petition the lower court defendant, a mental personal injuries by patient action for defendant was to restrain negligent failing who street, him from into where he was prevent going him and struck court the defendant’s contention that rejected truck. The by a cause of the plaintiff’s could be in- act of the truck intervening because of driver. juries applicable there held a demurrer ruling lodged law principles were stated court syllabi be: against may produce combine and events concur to or more result and “Two proximate cause. both be operative if it was a cause which was cause is concurrent at the “A moment contemporaneously produce injury another cause to in- acted an injury jury efficient cause the sense that without it the not have occurred. operation they are successive and unrelated in two distinct causes “If might concurrent, but if the was foreseen be cannot actor, negligence may first con- reasonably foreseen been
381 cause, proximate notwithstanding intervening (Syl. cause.” sidered the 3.) 2 and ff Public Service v. Kansas action City supra, Emmerich a streetcar the court brought affirmed by passenger defendants, judgment against both streetcar company of a store. The store owners were hauling owners mud out basement 1951 their after flood and left chain they were across the using process streetcar tracks. A streetcar struck chain, end and severed the and a air loose flew into the and struck and broke the where the window sitting street- car, her causing injuries. The found jury store owners of guilty negligence in chain leaving extended across the tracks without proper warning jury device. The found that the com- bined negligence of both defendants proximate cause of plaintiff’s injuries. Rejecting store’s contention that its negli- gence was proximate cause plaintiff’s injuries because of the intervening negligence of the streetcar company, this court on relied its earlier decisions and said: . (cid:127) rule negli- that causal connection between actor’s gence injury new, independent and an is broken intervention of cause, intervening efficient liability, subject so the actor is without qualification intervening might if the cause was foreseen reason- actor, ably negligence may been foreseen the first his be considered the cause, proximate notwithstanding (p. 451.) cause. .” causes,
It has been two or more both or recognized where all which are a combine and produce concur to result, an innocent third injury party would not have actors, occurred for the concurrent of such other except whose acts those united will be held producing injury jointly liable to the v. party. (Noel Menninger and severally injured Foundation, and Emmerich v. Kansas supra; City Public Service Co., supra.) Shideler appellee Habiger, relies v. principally supra; Columbia,
Hickert v.
v.
Wright,
Railway
Co.
supra;
65 Kan.
338;
Justice,
10, 101
469;
69 Pac.
Railroad Co. v.
80 Kan.
Pac.
Beldon
Hooper,
v.
DeBauge DeBauge,
31;
supra;
Kan.
57 P. 2d
Gas
Co.
Dabney, Kan.
The case Beldon v. Hooper, leading is a case advanced supra, appellee supporting position in the instant Other case. decision, cases cited appellee, decided to this prior are reviewed *10 and further of review court the opinion, the discussed at the telephone a druggist, There undertaken. not be them will nearly lad father, plaintiff, a delivered plaintiff’s request of the of carbon such as disulphide, bottles two age, of years fifteen to in wheat in destroy weevil to purchase accustomed father was to car- father accustomed furnish was father’s elevator. the with packed of were placed liquid bottles which such tons into delivered the bottles to druggist the In this instance excelsior. plaintiff them with excelsior. The packing without plaintiff the him, in driving beside bottles Ford automobile the in a placed some of the spilling was broken the bottles town one of about to the all clothing. According plaintiff’s person contents harm; evidence, no but in some plaintiff the do the fluid would fire plaintiff severely set on was the was way liquid unknown negligence of the defendant The court there held the burned. and excelsior prox- the in cartons was not the pack bottles failing to the the nor injury, plaintiff’s injury was plaintiff’s imate cause of defendant’s such consequence negligence of probable a natural and him. reasonably anticipated by proximate could have been as to be some intermediate agency said plaintiff’s injury cause of was kind, fire, “a or very which caused the some heated spark piece kind,” iron, steel and not something of that the remote defendant to that the failing of the see negligence bottles were excelsior, nor the similar in cartons and remote packed negligence the to send cartons the plaintiff father in forgetting accustomed to he was when purchasing supplies do liquid. In several differs from instant one. respects case The case was tried and the from the jury appeal was verdict and judg- It did not demurrer ment. arise as in the instant case. reference is No made to specification error in opinion. There was expert testimony to the effect that while inflammable, it disulphide carbon was would first be to heat before would but that heat exposed ignite, from the sun would insufficient. There other evidence was effect that plaintiff’s father was well aware of nature inflammable liquid, and connection with purchases former had taken but had precautions, failed advise plaintiff volatile nature of the carbon disulphide or the proper method to handle it. The father’s failure warn and advise the recognized as father, the court on the part but was classi- “remote,” and not negligence, defendant’s as that fled defendant injury. holding cause proximate come anticipated reasonably liquid not have could heat, and therefore in delivering contact with into remote, and not disulphide proximate the carbon the injury. relies, Ordinarily, as indicated the cases upon which appellant act question negligent whether is the or efficient Where, however, cause of an injury is one for the it is either jury. admitted, found, or established the facts as two distinct *11 causes, successive in unrelated their conjoin produce operation, given injury, of remote and question proximate cause becomes court, one of law for the decision of the and not fact question of for determination by a jury. by cases cited appellee embody this underlying whether in principle, stated the opinions or not.
In the instant case the demurrer the truth concedes of the alle- gations in the second amended It petition. concedes that as result of the act of Loretta Jamison, an employee beauty shop, gallon bottle of fingernail polish remover broke and the liquid ignited and exploded and caused a beauty fire at the shop; that the defendant had full when he knowledge sold the to the beauty that it shop would be handled and used the em- ployees work; course of their and that they pour fingernail polish remover from the gallon bottle into smaller' con- tainers for use at their manicure desks. concedes that further the defendant did not sell the fingernail remover a safe polish container or give notice or or warning by label appropriate otherwise of an or imminently inherently dangerous of such quality product. It admits that the fingernail polish remover a highly inflammable and explosive substance which was to the unknown plaintiff to Loretta Jamison, but was known should have been known to the defendant.
The divergent opinion of courts and jurists subject on the proximate and remote cause in the of negligence exempli- law are fied the leading case of R. Palsgraf Long Island R.
N. Y. titans, 162 N. E. 59 A. L. R. in which two legal Andrews, Cardozo and arrived at opposite conclusions Justices concerning Cardozo, the law of causation. who wrote Justice majority opinion, concluded that in order to de- establish the acts, not must liability negligent
fendant’s con- wrongful defendant’s were caused injuries her show reasonably appre- have been duct, conduct could that such but It was said injuries. in plaintiff’s have resulted hended opinion: neighbor jostles crowd does invade the who one’s not . One . fringe standing when the unintended contact casts at the outer
rights
others
wrongdoer
ground.
carries
upon
as to them is
man who
a bomb
suspicion
explodes
danger
bomb,
.’’
it without
the one who
343.)
(p.
facts;
case
the pleaded
of the instant
may
said
same
fluid,
if
bottle
volatile
even
dropping
the unintentional
itself,
initial and
relieve the defendant
his
does not
negligent
in commerce a highly
liability
placing
primary
warn
advise
substance and
failing
and explosive
inflammable
in-
character of
inherently dangerous
apparently
users of the
beauty
when
shop,
nocuous substance sold
delivered
char-
or should
known of its dangerous
the defendant knew
that it would
reasonably
acteristics and should have
apprehended
great
bum if not handled
care
explode
employees
beauty shop.
negligence alleged
A case
on the character
analogous
[1934],
at
G. C. P. Fire
Assn.
case
bar is
Sonneborn Sons
Relief
*12
N.
was to be used structure ... preparation should have known that “The also knew or manufacturer per per cent fifty-two and six seven-tenths cent of benzine contained exposed open inherently dangerous flame in an to an kerosene if and was inclosed . . . structure 'shipped knowledge had, or should it which it had have “With that knowing used, preparation, purpose dis- it was to be without for which using closing by danger of it in an inclosed structure label otherwise the flame, open near . . preparation knew have known that “Since manufacturer or should inflammable, highly jury finding justified was that it should reasonably anticipated might open that it near an which be used flame would explosion 469.) (pp. cause an fire . .” further said at page 472: opinion Hydrocide secret, defendant, highly “As No. manufactured was a explosive preparation, imminently dangerous property, to life and sold without warning nature, dangerous of its intended to be used in it the condition was purpose when delivered used for the for which it was recommended way reasonably anticipated, in a have been should we believe that the legally responsible defendant damage property manufacturer is for the resulted from its use.” For we emphasis, repeat, is demurrer to the second amended petition. It admits the truth of well pleaded. The sub- facts stance in question is described in the second “Kenra Finger Nail Polish Remover” and is be “highly inflammable explosive” and also “inherently imminently dangerous and explosive.” The character of the as such is admitted. It is probable, if fingernail remover de- polish scribed actually lacquer thinner which commonly used for removing fingernail polish, will evidence be adduced at the trial to establish that the product sold defendant was not of the fact, character In alleged. evidence may the case develop into situation presented by the facts in Beldon v. Hooper, supra, which control the ultimately decision. may conclusion stated that admitted facts *13 the defendant was at negligence operative moment of plaintiff’s injury contemporaneously acted with an negligent Jamison, employee beauty act of shop, in the sense that had the plaintiff efficient cause an and was and ex- highly been advised of inflammable Loretta Jamison remover, proper precau- the fingernail polish character of plosive taken to handle the safely could have been tionary measures re- fingernail polish the defendant delivered or had product; would never have occurred. explosion in a safe container mover acts negligent circumstances consequence Under these natural dangerous in condition was creating the defendant occur, to reasonable according experience likely and probable, cause have been intervening might reasonably mankind. The position. a in defendant’s prudent person anticipated does not on its that the show hold second We law, which, as a matter of prevents an face being proximate defendant from cause of negligence that the trial court should have over- follows injuries. plaintiff’s to the second amended petition. demurrer ruled the defendant’s trial is reversed with court directions judgment the views expressed the cause accordance with proceed opinion. dissents. J.,C. Paeker, In cases of this kind courts draw (dissenting): Schroeder, J. negligent between acts which wavering line are
uncertain damage results which too injury cause of are to make a cause. Courts endeavor rule each remote from the keeping general and in with the under- be practical case will mankind, directing attention to fact always that it standing of judgment. question fair that the defendant sold the re- fingernail polish But for the fact Salon, bottle to Russel’s East gallon glass Beauty mover in a one This, however, injured. have been not the would not Proof liability case. test of air, Negligence will not do. is the absence of speak, so to care Negligence to the circumstances. involves relation- according man and his fellows. Negligence between is not actionable ship legally interest, invasion of a protected unless involves the instance, every of a before an act is said to be right. violation duty must exist a individual negligent, complaining, there averted which would have or avoided injury. observance
387 duty a breach of for fellowman sues who sues his The plaintiff by right or derivately, not sue does The victim to himself. owing an- in the person an interest invaded to vindicate subrogation, other. city crowded through a speed a
One drives at reckless who act and, therefore, wrongful aof a act negligent guilty street is that wrongful It the sense is consequences. irrespective only other travelers unsocial, and unsocial to wrongful but is prudent referred to as the sometimes eye vigilance, because the act to be If the same were damage. the risk of perceives person, track, wrong- lose a it would committed a race speedway or be perceived ful defines reasonably character. The risk relation; it to another is risk duty obeyed, imports to be risk Long range apprehension. to others within the (Palsgraf 1253; Island R. 248 N. 162 N. 59 A. L. R. R. Y. E. 6.) Harv. L. Rev. Seavey, 41 Negligence, Subjective Objective, risk, Negligence, like is thus a term of relation. case, finger-' did not
Similarly, instant the defendant sell nail he polish remover in bulk public generally; to the quantities sold it in bulk business, shop. another a To supplier beauty as circum- repeat, negligence according is the of care absence stances. What are the circumstances? allegations of the a sense petition under consideration
belie themselves. At threshold any case like this is general that against petition plaintiff rule demurrer the is entitled not to the benefit of facts which must pleaded, true, be taken but to all reasonable be de- may inferences rived therefrom. 182 Kan. P. 2d (Cassity Brady, therein cases Under here the second cited.) applicable rules amended petition construc- subject before the court is liberal tion. The inferences indulgence supply court to reasonable facts, however, from the well court pleaded does not permit the an supply allegation totally that the alleged absent. While it is plaintiff did know Kenra Finger not Nail Polish Jamison substance, Remover was there highly explosive inflammable no allegation is that the knew or should known defendant these beauty operators did not know character product. is bound by allegations product ques- tion, chemical, “highly inflammable and “in- explosive” also herently and imminently dangerous and explosive.” Finger Kenra known as product that the specifically defendant, Remover sold engaged
Nail Polish supplies preparations and selling distributing business of East RusseTs was sold to in question beauty shops; a beauty in business as Salon, engaged establishment Beauty own- state specifically does shop; although here- of discussion thereof, purposes be assumed it will ership *15 further al- It is beauty shop. of that is the owner after Russel employed were as and plaintiff Jamison leged were they and that question, in beauty shop at the beauty operators time Loretta in at the shop working beauty so employed and Nail Polish Re- Finger Kenra gallon bottle of dropped the Jamison from the pouring mover to the she was gallon floor as desk, at her manicure as for bottle into a smaller container use and ignited and the liquid broke of which the bottle result gallon injury. exploded causing plaintiff’s statutory law. laws of
Everyone is know the presumed beauty beauty indicate applicable shops operators this state subject regulation. occupation the business or strict is 1949, 65-1904a, li- provides any G. S. things other Among cosmetologist person desiring beauty shop censed or establish board registration shall make for a certificate of application of board and examination for cosmetologists. registration safety required inspect equipment premises as to sanitary compliance regulations condition for of sanitary board of health of board regulations state state of registration for of shop This license or certificate cosmetologists. registration annually. must be renewed
Applicable 1949, 65-1902, definitions are set forth in G. S. as follows: occupations cosmetologist apprentice, act, “The applied of as this (a) purpose act, shall be defined follows: as For the the term cos- metologist designated occupation practice shall be as the which includes the dresser,’ culturist,’ ‘beauty ‘cosmetician,’ known ‘hair as and ‘manicurist.’ ‘Cosmetologist’ person who, profit, by any manner, is a for or means does any performs following: (1) Arranges, dresses, perma- or one or more curls, curls, waves, singes, cleanses, dyes hair; (2) massages, nent or bobs the cleanses, stimulates, manipulates, performs on, or scalp, or similar work tire neck, arms,
face, hands, upper part body bust or of the with the hands or appliances; (3) mechanical or preparations, electrical use makes of cosmetic antiseptics, lotions, preparations performing any creams or other one or practices (1) (2) section; more of the (4) described clauses of this superfluous from the face hair the hands or removes nails of manicures the beautifying process any person: (5) any any body; part other or manicuring practices Provided, Any person de- the nails who engaged learning person (b) ‘Apprentice’ is a ‘manicurist.’ fined as a occupation cosmetologist, any practices acquiring as arts and duly registered school, defined, direc- or under the immediate herein within a cosmetologist, who, preparing occupa- supervision registered for of a tion months, apprentice (12) cosmetologist, practice such for twelve tion of shall as manicurist, practice ap- who, preparing occupation of shall such prentice (2) months, apprentice eligible such shall for two when be for ex- any Provided, apprentice charge shall amination: That be allowed make no for 'his services: .”
Under it is clear that and Loretta foregoing statute immaterial these beauty are not It is whether apprentices. Jamison are or “manicurists” for operators actually “cosmetologists” purposes the demurrer. ruling 1949, 65-1901, any G. make it unlawful for provisions of S. or manicurist or to person cosmetologist to follow occupation conduct schools such this state unless he teaching occupation or she shall be the holder a certificate of registration provided for in the act. 65-1903,
G. S. registered makes schools Supp., provision in the state where the occupation cosmetologist may taught *16 or that the acquired. provides duly registered instructors the practices they teach and licensed as instructors. statute 1,000 a course of requires training of not less than instruc- hours of tion and of practice preparation occupation cosmetologist, for covering of six months’ continuous and 150 hours period training of practice preparation instruction of occupation manicurist. 65-1904, G. S. 1955
Under an for a Supp., applicant of certificate registration must make board application registration and if found cosmetologists duly to be qualified practice occupation cosmetologist or manicurist upon examination shall be issued a registration. certificate of
The defendant supplying beauty
shops,
particular
Russel’s
Salon,
Russel,
East Reauty
was entitled to assume that
and the
beauty
he
observed these
operators
employed,
laws and by reason
thereof Russel
operate
was licensed to
the business and his beauty
operators held certificates of
registration
or mani-
cosmetologists
curists and had
course of
completed
prescribed
study in their
Until the defendant had actual
occupation.
knowledge
the con-
theBy
been
in this
negligent
assumption.
he could not have
trary,
token,
op-
that
beauty
was entitled
assume
same
defendant
Russel,
and Loretta
plaintiff
erators
this
employed by
including
course of
knew the
char-
Jamison, by
study
precise
reason of their
acteristics
the chemical
or
used
products
they
preparations
in their
were
aware of the
they
fully
dangers
occupation;
chemicals,
Nail
Finger
uses of these
“Kenra
Polish Re-
including
mover,”
and in
handling
product
using
both in
itself
alleged
It is not
patrons
beauty shop.
new
product
beauty
Russel in his
the first time
purchased
shop for
[1934],
as in G.
Y.
C. P. Fire
Assn. v.
Sons
263 N.
Sonneborn
Relief
circumstances,
may have her If overpleaded action. the fingernail polish remover possessed op- characteristics here the beauty erators are to have it so presumed far as this knowledge defend- ant is concerned under the second allegations of the amended peti- tion.
If Russel comply did not with the and hired law beauty operators who were not licensed schooled in their occupation, and per- mitted them an imminently to use dangerous and ex- inherently plosive product in their occupation person of individuals patronizing beauty themselves, shop, handle it without him- *17 self as to instructing them the character of the product, his conduct would be a act or greater omission of culpable than magnitude simple negligence. In this event it be an would independent effi- cient cause of the intervening plaintiff’s injury. (Hickert v. Wright, 182 Kan. 2d 319 P. 152.) Since the defendant has not raised Russel, any question concerning the conduct of the decision need not rest on this point. in his brief the defendant demurrer this ruling
For purposes a one gallon remover in polish the fingernail selling concedes contends that defendant negligence. container was glass floor, which the bottle to the in dropping act of Jamison efficient break, independent to caused of his consequences defendant from as such shielded and negligence. the second allegations from the inferred reasonably may question in product delivery to the of business place beauty the defendant’s made from safely into safely came agents and his through employees Russel shop. control of this im- ownership and custody, possession, full at his inherently explosive product place minently dangerous of business. that Russel to whom he obligated anticipate defendant to
Is bulk, be- reason of the purchase who product sold for use in question beauty owner his product came the care, himself both highest degree not exert the would shop, to his agents, keep product through employees its mischief? Under the circum- prevent doing close to custody related, where Russel was accustomed stances heretofore through beauty operators in his business product use of in their registration occupation, prudent certificates of holding not have anticipated. defendant’s would so person position Russel, to defendant was entitled assume owner of this and use since duty handle such product, safely product, Russel by law. imposed upon Clark v. Powder the rule in Kan. 146 Pac. Applying 340, Russel, L. R. A. 1915 E Ann. Cas. 1917 B the owner of so Kenra Nail Polish inherently dangerous commodity Finger Remover, exert care highest required degree keep mischief-, close prevent it in and that custody doing duty ceased; never and Russel as such owner is liable for all the natural from of that probable consequences any which flow breach duty. purpose stating obligation Russel’s is not show him petition,
liable under second amended but to show that the de- Russel, fendant was entitled assume and rely acquired who business, use in his exert ownership high- est of care both degree himself and through employees
392 beauty operator, act of Russel’s the Thus, negligent agents. and break, it caused to which the bottle dropping in Jamison, injury plaintiff’s cause of intervening efficient independent
is an the selling negligence the defendant’s damage, attaches. liability no for which cause a remote bottle is glass the supplied of the defendant act words, the negligent other injury. of plaintiff’s the not condition, proximate it was but §68, Negligence, pp. Am. Jur., and 38 supra; Wright, (Hickert 724, 725.) the second presented by here circumstances facts and
On the Hooper, than Beldon v. case stronger this is a petition of carbon delivery disulphide safe 224 Pac. where 115 Kan. for use in his made the father was even bottles glass two There the son, negli- fifteen-year-old plaintiff. business bottles of glass the two druggist failing pack act gent remote excelsior held to be a in cartons with was carbon disulphide One bottle broke while injury damage. cause of plaintiff’s contents on his delivery spilled person son making was plaintiff set on fire and liquid in the automobile. The was clothing to be some inter- burned. The cause was said severely fire, kind, of some spark mediate caused “a agency iron, or kind.” something heated of steel or A very piece forth in the court’s fully opinion. review of case is more set Grace, are Many similarities to the instant case found in Cruzan 198 P. 2d the court held petition Kan. where de- murrable on the' that it stated an act of a third ground unrelated to entirely any of acts party alleged defendants. 2,000-acre The a ranch hand plaintiff employed was to work as on a ranch where the defendants’ business consisted of ranch- farming, ing agricultural and divers which work han- pursuits, required the allege plaintiff horses. was dling failed inexperienced horses, a ranch or in handling hand the court that it said must be assumed was plaintiff familiar general nature character the work he agreed perform. A horse that three-year-old and inclined to touchy run, fact, did run when a double-tree fell off away tongue wagon and hit the the heels. horse on young plaintiff alleged that was for one of the defendants to direct horses, which, harness a team up one of unknown plaintiff, was untamed and unbroken to work age and of the of three He further unknown to plaintiff, years. on the tongue left double-tree some had unfastened employee latter held to inter- independent, wagon. allege efficient cause of vening the accident which *19 of a fellow servant.
While the court rule that a recognized general servant dangers assumes the work risks and his employment, including servant, a that of the fellow decision did not rest on this opinion: was said in the point. although alleged appellee . did . it is not know horse un- was susceptible running away allegation broken and to there is no he did not recognize age; alleged alleged nor it is he could not have discovered the diligence; ap- the exercise reasonable he had been on the ranch facts weeks; proximately three the facts stated describe a situation not at all un- ordinary quite common ranch life to and one with which the ranch hand is familiar; alleged appellee agreed perform; they inhere the work facts range knowledge naturally were within the and were such as would call prudent inquiry by observation and ranch hand. case, we, however, “In the instant have an additional fact. While it is not clearly might petition open it been the is to the construction appellee was untamed horse one of the horses was ordered to use one employers. true, admitted, of his If that be and on demurrer it is we would say appellee right hesitate to did not have a to assume the horse broken reasonably to be safe used. necessary is question “It to rest the whether, instant decision on the circumstances, appellee under these handling assumed the risks incident to allegations petition
horses. Under the appear it does not the horse away young petition ran because it was and unbroken. squarely alleges subsequent, independent cause which caused the horse to 640, 641.) (pp. (Emphasis added.) run A material distinction in Wichita, Rowell City 162 Kan. 176 2d P. in the allegation petition that vagrant bottles defendants, left in the stadium which would fall or be thrown, was known to have previously occurred. defendants
While one is bound to anticipate and provide against what usually likely what is it happens happen, would impose too him heavy responsibility hold bound in like guard manner to unlikely what, what is unusual and against happen, as it is said, only sometimes remotely and slightly probable. A high would, degree of caution might, perhaps guard against injurious are consequences merely but is not possible, negligence, sense, to omit to do so. v. Boston & legal (Stone Railroad, Albany 394 Beldon supra; 1; Clark v. Powder 536, N. E. Mass. supra.) Hooper, affirmed. should be the trial court submitted respectfully
It is said accord with what is general I am dissenting: J., PRICE, Schroeder, merely but wish Mr. dissenting opinion Justice these few words: add of the second the allegations my opinion is that the sole proxi- one construction —and to but subject are of her fellow injuries plaintiffs mate cause of demurrer the floor. The bottle to gallon dropping employee sustained. properly has done well Schroeder Mr. concurring: J., Justice Jackson, rule of this the unusual court. him by task imposed difficult add an “Amen.” least I should at of the majority we Certainly, collect. a short shall include also to one of whether narrowed definitely has question been *20 appears in this case the defendant the alleged negligence cause of the the possible as second amended in dropping the act of Loretta or whether injury plaintiff's Jamison inflammable containing gallon “highly glass bottle fragile law, said, a matter of must be have substance” explosive insulating thus immunizing re- independent, been an It is suggested dissenting responsibility. defendant lieving Price that Jamison, Loretta our brothers Schroeder opinions bottle, cannot is to have be as- dropped who person the nature of the fluid in the been innocent of bot- to have sumed it case. may, tle. Be that as Beale, H. the situation can Joseph late be apologies With put defendant has a force in in this fashion: The motion (the put understand, did he should- of nail or polish remover); container foreseen, that force act or have be reasonably he over which he had no control (here, another force upon by acted possibly dropping the bottle handling it) thereby someone If should have been reasonable of the injury? foresight there or resulting injury force and of of some independent injury kind, force remained the proximate then defendant’s cause of the injury.
395 31-207, said, in part: In G. S. regulations keep- “That state fire marshal shall make rules and for the use, sale,
ing, storage, manufacture, handling, transportation, disposi- or other highly materials, dynamite, tion of gunpowder, petroleum inflammable crude any products, explosive tablets, or compounds, or inflammable fluids or any explosives torpedoes, any including explosive of a like nature or other firecrackers, may prescribe fireworks the materials and construction receptacles buildings any purposes to be used for of said .” Article 5 of the of the regulations state fire marshal deals with the labeling of containers for inflammable cleaning fluids. 1949, 21-2438,
G. S. defines a criminal offense as follows: “Grocers, druggists gasoline quantities and all other vendors of of two fifty gallons hereby hundred and required put gasoline by less are all kept them can, tank, hereafter for sale barrel, or sold recep- red or other tacle, receptacle “gasoline”; shall be labeled and vendors of kerosene in quantities fifty gallons of two hundred and put or less shall not kerosene in can, any tank, barrel, receptacle.” red or other
What danger was foreseen in the above statutes and regulations? It would seem safe to at least as a suppose, matter of pleading, foresee, defendant could or should foreseen, that some- one handling gallon “highly inflammable and explosive” fluid might likely drop fragile glass bottle and thereby cause in- It would jury. seem that the likelihood of such injuries occurring has led to the above regulations to containers of inflammable fluids.
Many authorities have cited in been and dis majority Two recent cases senting opinions. fairly involving situations in which defendant’s “force” acted upon by independent forces of may other found in Smith v. persons Kroger Grocery & 1; Baking 339 Ill. 90 N. 2d R. App. E. 20 A. L. 2d Small, and Hatch Wis. N. W. 2d 460. my opinion, ruling district court a de- sustaining
murrer to the second in the case at bar should be reversed.