West Disinfecting Co. v. Plummer, 44 App. D.C. 345

West Disinfecting Co. v. Plummer

44 App. D.C. 345 | D.C. Cir. | 1916

Mr. Chief Justice Si-iepard

delivered the opinion of the Court:

Errors are assigned as follows:

That the court erred in refusing to direct a verdict for the defendant at the end of the plaintiff’s case, upon the ground that the acts of the defendant complained of were not the proximate cause of the injury of the plaintiff, and upon the further ground that there was no privity of contract between the plaintiff and the defendant herein.

. The ether assignments are on granting the plaintiff’s first and second prayer and refusing the defendant’s prayers, and for overruling the defendant’s motion in arrest of judgment.

1. The first assignment of error based upon refusal of the inotion. to direct a verdict for the defendant was waived by the defendant’s introduction of evidence. Main v. Aukam, 4 App. D. C. 51; Slye v. Guerdrum, 29 App. D. C. 551-553, and cases there cited.

*3552. Tliere was no error in giving the plaintiff’s first and second instructions. If one carelessly places upon the market a dangerous article, he must be charged with negligence to third persons as in the case of poisons. The defendant was charged, and the jury necessarily so found, that the disinfectant was sold with the representation of its harmlessness. Whether so or not, it was the duty of the defendant to label the can containing the fluid so as to show its dangerous character, or to represent the same to the party purchasing. A man who delivers an article which he knows to be dangerous, without notice of its nature and qualities, is liable for any injury which may reasonably be contemplated as likely to result, and which does in fact result, therefrom, to that person or any other, who is not himself in fault, and it matters not whether the person injured was the actual purchaser from the defendant, if his use of the same was that intended. As a matter of fact, the plaintiff may be regarded as the purchaser in this case. The proprietor of the lunch rooms was in Europe, and plaintiff was his general manager, charged with the duty of attending to all matters connected with the business. As such manager he made the purchase for the proprietor and undertook to use it in the manner intended for the proprietor’s benefit. This misrepresentation of the character of the fluid, or the failure to inform the plaintiff of its dangerous character, was the proximate cause of the injury, there being no other independent or efficient cause or wrong that can be legally said to have occasioned the same. The whole subject is reviewed by the Supreme Court of the United States, and the doctrine firmly established in Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 53 L. ed. 453, 29 Sup. Ct. Rep. 270.

3. Defendant’s prayer No. 1 was rightly refused. It was not supported by the evidence in the case, which showed that the sprayer was used by the person and in the manner that was intended on its sale. The second prayer, to the effect that plaintiff wTas warned as to the character of the fluid by its name and the nature of its uses or the presence of a label on the first can, was substantially contained in the charge given, and *356was also rightly refused. The jury found that the can was not labeled as dangerous, and also that defendant had represented it as harmless. Defendant’s prayer No. 4 was rightly refused. The fifth prayer of the defendant, relating to the defect in the sprayer, was properly refused, because the court did not present any such issue to the jury. The case was made to turn upon the character of the fluid and the failure of defendant to inform plaintiff of its dangerous character.

We find no error in the proceedings, and the judgment will be affirmed, with costs. Affirmed.