Sterchi Bros. Stores v. Castleberry
182 So. 471
Ala. Ct. App.
1937
Check Treatment

*1 author evidence Newly discovered STORES, Inc., STERCHI BROS. v. CAS- merely im be, not must trial izing new TLEBERRY. cumulative, sufficient but peaching or trial. change the result probably Div. 557. 328, 140 So. State, 224 Ala. Scruggs v. Court of of Alabama. record, and entire Viewing the Oct. arguments due consideration giving Rehearing Denied Jan. very brief able in the say that moved we are in this filed Affirmed on Mandate June recognition this court holds under rights and human property rights the doctrine also holds Constitution. rights conflict, property that, two when the person. rights of yield to the must include not do But, rights human except property, private taking of forcible public, protection compensation. just then, without affirmed. Affirmed. Rehearing.

On

SAMFORD, Judge. rehearing appellant On plains that the statement of facts and con- clusions this court are incorrect Bryant, it is there stated: “Johnnie Deputy

was the Chief Talladega Sheriff of County, together deputies, two picket went line about 9:30 P. M.” The contention made is that the evidence finding does not warrant that the two accompanied Bryant men who were Johnnie deputies. The the State dis- Hayes Harvey closes that testified: “At Special Deputy that time I was Sheriff at * * * Bemiston. Sure did have Deputy And, Sheriff’s Commission.” he Hayes testified that further asked Joe Bryant go with them and to Johnnie Welch, in the arrest aid the defendant. Whe'ther these held commission as deputy They sheriffs or not immaterial. deputized by deputy, the chief county Talladega aiding making him in an arrest of the defendant. under section 3265 of the Code of Harvey Hayes Hayes and Joe deputy to assist the in making the arrest. The other conclusions of facts stated original opinion fully are borne out evidence, and the contentions made argu- in his brief but weight ments testimony.

Application overruled. *2 Barnett, & May Bradshaw all L. A. appellant. negligence negli- relied is the

gent repair, negli- failure or refusal to gent refrigerator, and the installation of negligence selling refrigerator. *3 frequently “It has been declared to be a in rule that no cause action tort of duty existing can arise from the breach of a by contract, virtue of there be be unless person injured tween the defendant and the privity what is termed 20 R. of contract.” p. C.L. § Of course the action here founded in is 514; tort. 24 R.C.L. v. Gulf States Jones Steel 88 So. 21. And the “a fact that seller warrants Jr., Simpson, Simpson R. T. T. R. quality condition or (the) the of a thing Ray, Bir- F. of Ben * * of impose sold does not in itself appellee. for mingham, any liability (it)' him to third way party who are no a to in the contract. privity In such a case is there no of contract person, the between seller and such third precludes any right (her) and this on his part any advantage to to benefit be de warranty.” from rived the R.C.L. Maryland, of to Use Winfield State Bond, of H. Gas, Light Consolidated Baltimore, Company & Power of 146 Md. 105,42 126A. A.L.R. 1237. think, And we that “in'or (in'such der make a vendor liable a case article, this) who sells an not in itself of imminently dangerous character, an it must averred that he had actual knowledge be of danger.” defect or the Huset v. RICE, Judge. Company, 120 F. 57 C.C.A. 61 L.R.A. 303. plaintiff Appellee, below, in the court (successful,' brought appears) suit The rule well is established that appellant, for claiming damages injury act, is result where the the of an injuries received as the result of imminently cause of which is in itself “bursting” “exploding” of a mechan- limb, dangerous fraud or to life and nor based refrigerator sold ical deceit, implied invitation, appellee. husband plaintiff privy is not a where the of the con question in refrigerator The was a Kel- defendant, an neg tract with action for vinator, nationally advertised product ligence will not lie. Laudeman v. Russell & party manufacturer who is not a to the the a suit; al., Ind.App. et Co. sold in and it was It has been “ordinarily, said bought it was which condition accepts purchased where a vendee ar manufacturer. ticle, becomes, the vendor reason of such refrigerator placed was with the acceptance, liability relieved from to third approval,” Castleberrys pur- “on and was respect to Bragdon it.” Castleberry, the Mr. husband chased Company, 109, 110, Perkins-Campbell 87 F. appellee, days after plaintiff, a trial of ten 567, 66 L.R.A. 924. 30 C.C.A. home. weeks his "or two more Castleberrys used And had been over, the fact that the Kelvinator year pipe when a small cracked more than and a year Shan by appellee for more one escaped. gas gas escaping This is used n purchase, alleged date before the to have caused the from the its suit, subject occurrence damages are claimed. 28á further, any not— been conclusiye if said counts had that same averred, amended state cause action under ‘if had been even same sold. forth, have set under the evi- imminently when dangerous

not-— Lynch (C.C. dence exceptions Co. as contained in the bill of International Harvester here, defendant,' up appellant, sent would A.) 60 F.2d jury given have been entitled have at law that to be We concede it request charge its affirmative immi to be who article “one sells find in its favor. another, notice nently without dangerous to overruling appellant’s For the error any person qualities, is liable its plaintiff’s (appellee’s) might have therefrom which injury suffers and, separately, plaint, for the errors in there reasonably anticipated, whether been *4 appellant’s overruling A, counts relations between were contractual C, D B, plaintiff’s complaint, and Lynch Harvester International not.” reversed, the cause and remand- Co., supra. ed. in- nothing find in the evidence But we Reversed and remanded. as the one dicating Kelvinator, such that a inherently is an article involved this here involved dangerous; qr that the one PER CURIAM. imminently dangerous. Giberti v. authority on Affirmed Sterchi Bros. Co., 70, Mfg. 266 Mass. 165 Barrett James 349, Castleberry, 182 236 Ala. So. Stores fact, pointed out herein- 19. In N.E. 471. above, conclusively established that it seems inherently imminently dan- nor it gerous. a case it well In such upon him an article takes seller of such obligation than that self no Giberti from his contract. which results Co., supra. Mfg. Barrett v. James 182 So. 480 distinguishable on law In a case not SMITH v. STATE. 'case, the involved from the instant Court Div. 8 Kentucky Appeals of held that the seller inherently stove, a cook was not Court Alabama. imminently dangerous, was not liable June buyer wife of negligent explosion stove due installa Bensinger Outfitting Co. v. Seaman’s tion. Adm’r, Ky. 280 S.W. see 213 Co., Huset v. v. Rhodes-Burford supra; also Osheroff Co., Ky. 262 S.W. Pitman Lynn Gas & Mass. Perhaps enough. we have said But is, of might add that it course—-with especially to counts A. & D. of the reference demurrer, complaint —triie demurred to are pleading of the averments strongly pleader. most construed Chewning, Ensley Ry. Co. v. Considering the of law down, hereinabove, all quoted, and set conclusion, represent our of which all, each, of the complaint the four counts subject to jury were submitted to interposed thereto. the demurrers