*1 of value money, thing or may recover No court by him lost in such transaction. be author- competent jurisdiction would upon the empowered enlarge ized or statute, cer- specific provisions of said so as so construed tainly it never be could law- outrageous and justify or condone undisputed testi- conduct such as less the defendants mony in this case discloses question. upon occasion committed al- Moreover, party could be if even lowed, justified, in the commission reasonably contend- acts, cannot such it be al- could be conduct he ed that only identical recover lowed to not himself, money, he lost thing of value allowed, (but armis, vi et could also also party injured here, from the to take belonged to said actually money which

party. carefully and at- this case we have In every excep-

tentively considered each rulings the court reserved to the tion we From the view throughout trial. reversible er- semblance of take To rulings the court. ror in of said approval, quote,- with our contrary we Attorney brief the remarks state, wherein General, representing the examination “Upon an is said: appear case it will record ap- most favorable'terms tried squarely before issue pellant and was wheth- its determination jury de- lost money er addition person they took fendants money belonging witness State’s game.” he entered which with

Affirmed.

8 So.2d DAVIES. CRANE CO. v. Div. 706. Appeals Alabama.

Court of 7, 1941.

Oct.

Rehearing 13,1942. Jan. Denied May Remanded

Reversed

473' *3 Sadler, Birmingham, ap- Sadler & pellant. Mudd, appellee. Birmingham, P. J. *4 Davies, Sr., pany, was branch which Mr. SIMPSON, Judge. manager. against This tort action damages to the (appellant) defendant the heat- house The was remodeled inter- the leasehold goods substantially household and to s'ystem installed therein house) by reason plaintiff (in doing est of the according plan, heating explosion boiler carpenter installing pipes work and rented dwelling boiler, of his house. valves installing and Mr. his father. house from heating and radiators. system, circu- known as a water closed hot was that complained wrong by a lation therein “booster being controlled sup- furnace, heating equipment, automatically by pump” room actuated by de- plies furnished manufactured and temperature. im- system were fendant put when minently inherently dangerous com- On the work was December 14th dangerous con- intended, which cold, to the use pleted. The weather became so not was known defendant dition night, gauges and ob- checking after plain- known, made was unknown but apparently in serving that , tiff owner or to Mr. satisfactory ascertaining working order and *5 plain- the judgment a for house. From Mandy’s already had fire that men had a appeal court, is taken. tiff the Davies, in circuit this furnace, Sr., re- burning in the Mr. plenished amount of wjth the fire a small respective counsel arguments of Oral to (about capacity) coke of furnace- 20% submission, upon their written original and system during the prevent freezing of the here, ably presented arguments and briefs exploded, night. night Later boiler that the and the to court the issues involved damage the resulting in to considerable the parties. of contentions furnishings. The was and house house its Appellant urges a be de- that reversal steam, escape to at the enveloped in heard of the trial clared because the refusal in explosion. The break was time the of special in- charges, written court of certain where the water line the of the boiler rear cluding general charge, affirmative and the it. from house reentered the expert testimony for the of allowing Mr. Davies, Sr. Davies, engineer of Mr. his experience, having received extensive pertinent will endeavor set out the We to engineer in civil mechanical education and upon evidence which the seeks to the universities of at well known recovery. i est his ’ previously. thirty years country about contemplated making al- Before certain pro in engaged has his Since then he been to house which was be terations the to many years present with his fession and for remodeled, Davies, Sr., Mr. consulted a employer, engages work which in structural representative Company, of Crane who had experience in the all kinds. has had of He upon the charac- called as to size and supervision operation of boilers and steam for the build- heating of suitable ter his structural work an incident and as to ing. representative This assured him that experience heating plants. in has had some just equipment had the suitable defendant carpentry special training He had has establishing proper a heat- for the house his .joinery. think and hold that and .We taking contemplated ing system. After the appear sufficiently to allow qualifications pur- plans remodeled for for the house the expert testimony as the cause the of designs complete laying out for a pose of 18, Stephens, 221 explosion. Ala. Walker v. therein, system pre- the heating defendant 668; T. Adams v. 127 W. Machine Co. So. plans prints plant, pared blue and 308, Turner, 50 Am. So. 136 sizes, piping layout, connection, showing the 28; Rep. Alabama Consol. Coal Iron& St. same, etc., the be and used other 162; Heald, 168 Ala. 53 v. Co. as to the installation of the instructions Foundry & Machine Co. Caldwell-Watson delivered them to Mr. and Watson, Ala. So. 859. v. cost of An estimate material Sr. testimony of Mr. given It was understood The him. that was witness, Boisclair, expert his radiators was should billed that of the boiler be system, boiler, friendly plumber, company with the through a defendant, inherently plumber. by in- as such was or suggesting a trinsically dangerous in fittings purchased was no pipes and were from aquastat safety or other through Virginia Bridge acting Com- reverse defendant through a upon billing direct proper but insisted to maintain circulation device defendant, tendency “friendly plumber”. ac- system. The through water plaintiff, de- cording that the established of this evidence further evidence only signed improper dangerous and sold an pump being actuated room booster Davies temperature, not circulate to be installed in water could differences; So, plumber friendly that the house. reason thermal whether inspired by circumlocution generated heat concentrated scheme were a policy ,or gradually genuine, reduced whether rule of water in the boiler which sheet, creat- its croWn thus is the level below the same. high pressure .ing in the boiler steam at non-liability rule held from boiler until which the water per manufacturer vendor to third or temperature become low room should privity negli sons not in of contract pump. Then enough to the booster actuate gence construction, in the manufacture or temperature when this was reached lower subject sale of the automatically articles handled is pump started forc- booster boiler, recognized well exceptions, one of which is ing cold water into the overheated whereupon steam, one who the ratio -sells or delivers an it flashed into article knows, (cid:127)which he expansion facts about 1700 to 1. As a should know, cracked, imminently casting result of the boiler to life or limb of explosion. possessed another who is hence the no such knowledge qualities, notice of its sought Evidence for the defendant any person liable to who suffers an explosion establish that the cause of the might therefrom which have been reason doubt, contrary theory although ably anticipated, whether contractual except that there advanced was some parties existed between the or not. relation Huset plan minor piping deviation from the *6 Threshing Co., v. I. Case Machine installation; J. piping this boiler was Cir., 865, 8 303; F. 120 61 L.R.A. Sterchi satisfactory use, in to others now similar Castleberry, 349, Bros. v. 236 Ala. 182 So. explosions ; having other such been recorded 474; Green, 427, Altorfer Bros. v. 236 Ala. plans system that the for the had been fur- 415; 183 Chrysler Corp., So. Miles v. 238 gratuitously, making up nished articles the 359, Ala. 191 245. So. See also Crane system having the been manufactured free Company Sears, 603, v. 168 Old. 35 P.2d only; of defect and in marketed sections 916; Carbide, etc., Corp., Grinnell v. 282 further sought Mr. to 509, 535; Mich. 276 N.W. McLeod v. operate system Mandy before Mr. had Linde Air Co., 397, Products 318 Mo. 1 completed inspection. his 122; Kentucky S.W.2d Independent Oil According to Slandy Schnitzlerk, Co. v. Ky. 507, 208 271 S.W. morning stated the following explosion 570, 39 A.L.R. 979. had, previous afternoon, that he operation system checked the of the and is law further declared that a found functioning properly, it that “he had article, of an plan manufacturer a under or completed inspection his and found the design which makes it dangerous for the system be satisfactory operating con- intended, subject use is to others- dition.” reasonably expected lawfully use it or to- The reasonable inference is that the vicinity probable of its use for plans specifications and the heating injuries proximately resulting, from the system prepared and boiler and recom manufacturer’s failure to exercise reason by the part mended defendant were a of the able care adoption in the plan of a safe single purpose to sell Mr. system Davies the This, design. course, provided the- for his house. But whether offered gratui danger is not known to the user and there tously purpose for of making the contributory is no part fault on his in its. consequence. is sale of little As we under attempted use. Restatement of the Law of law, negligent stand the designing of Torts, 398, pp. § 1084-1085. system is actionable damages if ensue proximate a result thereof as whether fur We are mindful of the argument able gratis Jaeger nished or not. v. Elizabeth learned appellant counsel for the law —and Co., 124 420, town Consol. Gas 11 N.J.L. negligence —that cannot be assumed from A.2d 746. the mere fact of and that facts can- It is not be sustained by building immaterial the de upon, inference * fendant, being wholesaler, a would not sell inference.

477 issue, system”. The under evi Nevertheless, forth well set as so jury by dence, clearly presented to (now Chief by Mr. Gardner Justice pre court and no the instructions Georgia Supreme Court Justice) of our appear. Best judicial made is error 273, Edmunds, 233 Ala. v. Company Power Rollins, 192 Ala. Co. v. Park & Amusement 258, 256, discrimination 275, “a 171 So. nice Ann.Cas.1917D, 417, 929. 534, 68 So. application of in the be exercised must causation, a theory a principle. As Furthermore, predicate for a as a explanation simply con conjecture variance, a ground on the such reversal conditions, but with known facts or sistent amendment, the same curable a reasonable as not them deducible objection special must been a there have may or more There be two inference. point variance. Re making the as to the an event plausible explanations to how as quest charge is affirmative it; yet, if the happened produced or what special objection enough. such hav not No application to evidence without selective made, point been is waived. Circuit them, they any conjectures one of remain 34, 1940, 7, Practice, Rule Code Court Title hand, evi only. there is On other if p. 1035; Walker, 241 Schaeffer v. Ala. points theory of one dence which So.2d causation, sequence of indicating logical a asserting special charges written effect, juridical and then is a cause non-liability operated be- determination, a notwith basis or “de- fore Mr. “turned over” plausible standing other the existence of Davies, Sr., in livered” the to Mr. support theories with or without being argumentative as- addition to See, also, R. Co. v. evidence.” Southern serting an incorrect statement law 665; Dickson, 211 Ala. Harbin facts, applied proven assume certain Moore, 264; Ala v. 175 So. presented the evidence. not facts Gladden, Ala.App. Co. v. bama Power dispose of observations hereinabove Our 438, 197 So. 374. assignments cogently argued error This that the evidence court thinks appellant. able counsel for point did to a adduced for further conclusion is that issues Our indicating theory logical of causation correctly presented clearly were to the effect, sequence of cause which made jury by charge trial court the able *7 necessary to refer the for the trial court judgment not be and that the below should jury. to the The evidence and the issue disturbed. presented clearly tendencies a con thereof prejudicial appearing, judg- error No the flict, charge properly so affirmative was the accordingly ment is affirmed. Bros, case, supra, 236 refused. Sterchi Affirmed. 350, page 182 So. 474. Ala. If to be conceded meritorious under Rehearing. On evidence, non-liability the the contention of SIMPSON, Judge. operated because the before by were proper tests made is answered appellant, rehearing, on Able counsel for Davies, Sr., tested proof that and found acerbity that we have with some asseverate apparent working order, and it in further evidence misapplied law to the in the the by proved admission the more the cogent argu- In deference their case. Mandy, it, that plumber, Mr. who installed ment, we will further delineate our views. completed his tests and the he had found would, course, purposeless be to in- It proper operating system to condition. be copy pleading, of the same herein a clude record. part a of the being a insistence that there was plain interpretation of the To us between the evidence and variance controlling one of complaint evidence negligence claimed transaction, certainly part phases a view, complaint In our untenable. thereof, recommending and fur- alleges wrong. sufficiently the actionable by plan Company nishing of the Crane .as Certainly, and under the evidence able plant heating a suitable depicting for the court, can charge of there be no re equipment and other The furnace clearly house. de error. The issue versible purpose of in- purchased for complaint were though described even fined plant in heating therein a accord- “boiler, stalling heating as article furnished plan. preparation with said ance supplies” than as “a rather equipment and 478 applicable (cid:127)should be delivery plan by the defendant can instrument in- construed, do, part herently dangerous but becoming and we as so when be .or boiler, applied parcel selling to its intended use in the of the business of usual and customary manner, supplies 888), equipment, (44 for the when heating C.J. supplied by furnished or the manufacturer house. or vendor who in the circumstances should n so, Being if the without a intrinsically dangerous quali- know of its proper safety' device, as installed fault, ties to a at user not who is not so plant by Company, heating Crane apprised. so, If it seems to us not an un- inherently imminently dangerous was an application principle reasonable put instrument intended when use its equipment, hold that if the boiler and when (and supported plain this fact is under the used in the designed, as were evidence), tiff’s character or its instrumentality supplied and were by quality being unknown and not made circumstances, and used under such there plaintiff, known would be to the there consequent would be liability liability injuries reasonably may which proximately therefrom, resülting providing contemplated likely be as result there part was no fault on the of the user any person, from to toor not himself (plaintiff) proximately contributing to such at fault. injury. proper application If this import principle, Of such the authorities are here and to us it seems undoubted- cited, ly so, inabove I. equally to-wit: Huset v. Case it is as certain the evi- J. Co., Cir., 865, Threshing pending Machine 8 120 F. adduced trial was sufficient dence 303; require 61 L.R.A. Bros. Stores v. Sterchi submission of the to the issue Castleberry, 349, 474; jury, 236 Ala. 182 So. was done the learned trial court. Green, 427, Altorfer Bros. v. original 183 We therefore maintain our view 415; Chrysler Corp., So. Miles v. 238 that defendant was not due the 359, Ala. 191 charge. See also Crane Co. affirmative Sears, 603, 916; v. 168 Okl. 35 P.2d Grin special charges of defendant claim- Carbide, etc., Corp., v. nell 282 Mich. liability boiler, exoneration from 535; 276 McLeod v. Linde Air N.W. etc., were used before “turned over” Co., 122; Products 318 1 Mo. S.W.2d or “delivered” to and before Kentucky Independent Oil Co. v. Schnitz made, final tests had been are ler, Ky. 507, S.W. A.L.R. again urged stating the court as 979; Torts, Restatement of the Law of propositions. legal correct 398, pp. Section 1084-1085. charges think But are we therefore cannot We accede to the view faulty respects: in several appellant piping and heating (1) concurring negligence The rule of plan furnished the defendant for use recognizes joint which tort part plays the house in the consideration *8 persons third at fault is feasors to not over of the case and that because forsooth the principle underlying The is looked: of law boiler, equipment, supplies were sold “Negligence, understood. to render a well by articles, defendant as unassembled liable, person of need not be the sole cause liability, hereinabove, rule of ap- does not injury. negli an It is sufficient that his ply. perceive we liability Nor do is gence, concurring with one or more ef by affected the fact that the articles were fault, causes, plaintiff’s other than ficient through “billed friendly plumber,” injury.” proximate of cause (Mandy). E. Corpus Section 485 Alabama Juris liability This rule of is referred by to Co., Great R. Co. v. Moundville Motor appellant as the “doctrine of manufactur- 305, 306; 633, 4 Ala.Dig., So.2d liability.” er’s It is so termed in decisions G^60, 61, Negligence, 90. courts, liability of the but under the law party plaintiff. brings A third not solely is not restricted manufacturers, to ignore charges The action. fact suppliers,

but extends to vendors and gen- stranger to the is a transaction erally, imminently of instru- way damage at fault in 'the to no ments supplied when furnished or under acquit They property. seek to the de his the circumstances treated hereinabove. liability of resulted fendant Sr’s., If such doctrine is Davies, premature to use have a of the reasonable application though our modern system, reason of an age, industrial even error logic defendant, and common' design, sense dictate known to boiler plaintiff, intrinsically" dangerous may there been would in- have juries proxi- contemplated which-may reasonably and as a when used be contem- as plated likely (concurring with as mate result thereof result therefrom to Davies, Sr.) person, the dam- or negligence alleged himself fault. not at The defendant ages were inflicted. Supreme The pretermitted Court alleged defective boiler whether the liable discussion underlying proposition, of this proximate was a con- was the sole cause or upon resting reversal the conclusion that proximate the claimed curring with cause evidence “the did not sustain material premature system misuse or use of complaint,” thereby averments en Davies, Sr. titling the defendant affirma charges effect was to mislead The charge. tive This holding is conclusive Sr., Davies, jury if believe that with this (Code court Title Sec. system, prematurely fired the there was 95), so ground judg stated liability, not the regardless whether or ment of the trial court is reversed and the imminently danger- cause remanded. with the other averred ous concurred Reversed and remanded. Davies, proxi- negligence (that Sr.) in mately plaintiff’s damages. causing the (2) charges are de- otherwise fective, think, assuming that we such as “turning had over” or to be actual Sr., Davies, “delivery” Mandy by Mandy (not some and that other 8 So.2d 585 competent person) must have been the one BROWN v. ACE MOTOR CO. to have made the final test. criterion 6 Div. 903. instrumentality intrinsi- is whether the Appeals supplied cir- Court cally dangerous, was under of Alabama. liable, rendering supplier cumstances April 14, 1942. proxi- plaintiff’s damages and whether the Rehearing May 12, Denied mately intrinsically dan- resulted from this re- gerous, instrument —and this defective there had gardless of whether or not been delivery an actual over turning irrespective and also final tests had been made of whether the competent person. some other impress charges stating two us as in- law, propositions their correct refusal being justified. opinion This court adheres to the that the

judgment should be affirmed.

Opinion extended.

Rehearing denied.

After Remandment.

PER CURIAM. Respectfully according weight full authority Supreme the decision of our Court, proper deemed to reassert was, is, opinion

our safety device, proper without a as installed and furnished Company, inherently was an Crane imminently dangerous instrument put when use, intended its to its character quality known to defendant and not made unknown known to the