Ebbert v. Philadelphia Electric Co.

Dissenting opinion by

Mr. Justice Drew:

What duty, if any, is imposed by law on vendors to inspect goods they sell? If I read the opinion of the majority correctly, it imposes the duty of inspection upon vendors of all articles not sold in sealed packages, wherever a defect would make the article sold dangerous for use. I think this holding goes far beyond the warrant of any satisfactory authority anywhere. As a general rule the vendor of an article manufactured by another has no obligation other than that in contract, expressly undertaken or implied by law.

1

There are, of course, exceptions. Most common is the situation

*271

where the vendor knows

2

or from indications obvious without inspection ought to know

3

that the article he sells is likely to cause harm. This is the rule stated in section 388, Restatement of Torts, cited in the majority opinion. That section is here quoted in full to show the significance of subparagraphs (a) and (b) which are omitted in the quotation appearing in the pi*evailing opinion:

“One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

“(a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied;

“(b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and

“(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so.”

*272

■ Tlie section can liave no application to the case before us. There is no evidence that the defect in the wringer, if it existed at the time of the sale, was either known or recognizable without inspection; indeed, it is not even so alleged.

The instances of liability remaining that might be considered exceptional have a common thread. They are all cases where the vendor has done more than make a sale. In each he has affirmatively done something and to his action negligence can be traced. Thus he is liable where he has undertaken to install the article and does so negligently,

4

*where he negligently sells the wrong article,

5

where the defect has arisen in the course of the vendor’s storage of the article,

6

where the article sold is a compound of others, the compounding having been done by the vendor,

7

or where the purchaser relies on the vendor’s tacit or express assurance that the article is safe.

8

But here defendant has done nothing but sell a washing machine and demonstrate generally how to use it. I can find no act of defendant that could be said to have been negligently performed. The demonstration was accurate. It did not disclose the defect, it is true. But it must be remembered that it was a dem

*273

onstration, not an inspection, that was being conducted. A demonstration, is for the purpose of instruction by means of a sample display of operation. No representation inheres in it. It is not an inspection and the customer does not understand it as such, nor does the vendor by demonstrating assume to make an inspection. And the fact that the vendor employs 100 service men has nothing to do with inspection. Service men make repairs after the machines are put to use. Salesmen sell and demonstrate as was the case here. Service men have no duty to perform until the machines sold are out of order; they then make repairs, free for a year after sale in this case, and for a charge thereafter. Consequently, I can find nothing in the case to indicate that the vendor or its demonstrator did or said anything that could have been negligent or that could have misled the plaintiff to her detriment. Defendant cannot, therefore, be held liable for any affirmative misconduct.

But the majority goes further and finds liability in the failure to act, in the failure to make an inspection for the defect that made the article dangerous. This is the rule as applied to manufacturers.

9

But I cannot agree that it should be imposed on vendors, and I see no limitation upon it in the opinion of the majority. The situations of vendor and manufacturer are entirely different. The manufacturer creates the instrumentality. He has it within his power to do so carefully. If he is careless he is in the position of having affirmatively acted in a manner to set up new risks to those-who use his products. The vendor, however, who does nothing but sell, does not create hazards. He does no more than pass

*274

them on unwittingly. He is not even aware of any particular need for caution. To hold him to a duty to inspect for defects that might make the article dangerous in use would put his liability on a parity with that of the manufacturer and would to all intents completely abrogate the rule of nonliability of vendors.

10

Every case in which a plaintiff has been injured by a defective article is one where it could be said defects made it dangerous. Hence, in every case a vendor would be bound to search for defects not known to him, not of his creation, and in circumstances which would not suggest any need for inspection.

As precedent for fastening this far-reaching duty upon vendors, the majority cite meager authority:

King Hardware Co. v. Ennis,

39 Ga. App. 355 , 147 S. E. 119 ;

Moore v. Jefferson Distilling Co., 12

La. App. 405, 123 So. 384 ;

Garvey v. Hamm,

136 App. Div. 815 , 121 N. Y. S. 442;

Guinan v. Famous Players-Lasky Corp.,

267 Mass. 501 , 167 N. E. 235 .

King Hardware Co. v. Ennis,

supra, not a decision of a court of final resort, while discussing the duty of the vendor to inspect, can well rest on the conclusive ground that the vendor expressly represented the article sold to be safe for use.

Moore v. Jefferson Distilling Co.,

supra, was subsequently reversed on appeal to the Supreme Court of Louisiana: 169 La. 1156 , 126 So. 691 .

Garvey v. Hamm,

supra, also not the decision of the highest court of its jurisdiction, without analysis or citation of authority, holds a department store liable for injuries caused the plaintiff by a needle concealed in the lining of a coat purchased.

*275

Guinan v. Famous Players-Lasky

holds defendant liable for injuries suffered by plaintiff when highly inflammable moving picture film caught fire. Plaintiff took delivery of the film at defendant’s place of business; defendant gave it over in a cotton sack when it should have been enclosed in a fireproof container. Plainly liability did not rest on a failure to inspect.

For the reasons outlined, I think defendant violated no duty to plaintiff and that this decision to the contrary is not supported by any satisfactory authority. It seems to me to place an unfair burden on business. Nor do I agree that recovery can be found on breach of warranty. The agreement to replace defective parts for the period of one year, is in no sense a warranty. It is a guarantee that defective parts will be replaced without charge and the interpretation of its plain meaning needs the aid of no precedent. If such aid is necessary it may be found in

Kress & Co. v. Lindsey,

262 Fed. 331, 335 . Accordingly I dissent from both grounds upon which recovery has been allowed.

I would reverse the judgment for plaintiff and enter judgment for defendant n. o. v.

1

Longmeid v. Holliday,

6 Exch. 761 [regarded by Bohlen, 44 Am. Law Reg. (N. S.) 308 , as a case where defendant was vendor merely] ;

Peaslee-Gandbert Co. v. McMath's Admr.,

148 Ky. 265 , 146 S. W. 770 ;

Pitman v. Lynn Gas Co.,

241 Mass. 322 , 135 N. E. 223 ;

Camden Fire Ins. Co. v. Peterman,

278 Mich. 615 , 270 N. W. 807 ;

Belcher v. Goff Bros.,

145 Va. 448 , 134 S. E. 588 ; Bohlen, Affirmative Obligations in the Law of Tort, 44 Am. Law Reg. (N. S.) 209 , 305.

2

Baker v. Sears, Roebuck & Co.,

16 Fed. Supp. 925;

Siler v. Morgan Motor Co.,

15 Fed. Supp. 468; see

Kusick v. Thorndike & Mix Inc.,

224 Mass. 413 . The rule that a vendor cannot be liable for defects in goods sold in original cartons is based on the fact that he cannot then know of the defect:

Toarte v. Morton Mfg. Co.,

290 Pac. 919 (Cal. App.). The rule is not inflexible. If from past experience with articles of the same sort he ought to know of defects he is liable even though the article was sold in a sealed carton:

Clark v. Army & Navy Co-operative Society

[1903], 1 3L B. 155. Similarly, if by his special training as a dealer in certain articles he ought to be alert to recognize their defects, he is liable if he does not: Restatement, Torts, section 402.

3

Clarke v. Army & Navy Co-operative Society

[1903], 1 K. B. 155-; see

Gerkin v. Brown, Co., 177

Mich. 45, 60, 143 N. W. 48 ; Restatement, Torts, section 388.

4

Empire Laundry Machine Co. v. Brady,

164 Ill. 58 , 45 N. E. 486 ;

Crandall v. Boutell,

95 Minn. 114 , 103 N. W. 890 ;

Cox v. Mason,

89 App. Div. 219 , 85 N. Y. S. 973.

5

Wright v. Howe,

46 Utah 588 , 150 Pac. 956 ;

Smith v. Clarke Hardware Co.,

100 Ga. 163 , 28 S. E. 73 ;

Atkiss v. New Staunton Coal Co.,

147 Ill. App. 241 .

6

Heinemann v. Barfield,

136 Ark. 456 , 207 S.

W.

58 ; see Restatement, Torts, section 401, comment (a).

7

George v. Skivington,

L. R. 5 Exch. 1.

8

Langridge v. Levy,

2 M. & W. 519;

Cunningham v. Pease House Furnishing Co.,

74 N. H. 435, 69 Atl. 120 ;

King Hardware Co. v. Ennis,

39 Ga. App. 355 , 147 S. E. 119 ; see Restatement, Torts, section 401: “A vendor of a chattel made by a third person which is' bought as safe for use in reliance upon the vendor’s profession of competence and care is subject to liability. . . .”

9

Donoghue v. Stevenson

(1932) A. C. 562;

Johnson v. Cadillac Motor Co.,

261 Fed. 878 ;

Kalash v. Los Angeles Ladder Co.,

1 Cal. (2d.) 229, 34 Pac. (2d) 481 ;

MacPherson v. Buiclc Motor Co.,

217 N. Y. 382 , 111 N. E. 1050 ;

Stultz v. Benson Lumber Co.,

49 Pac. (2d;) 848, (Cal. App.); see

Grodstein v. McGivern,

303 Pa. 555 .

10

The expansive possibility and tendency of the rule imposing this duty on manufacturers is pointed out in his book, The Growth of the Law, (1924 ed.) p. 77, by Mr. Justice Caedozo, the author of the opinion in

MacPherson v. Buick

Co., 217 N. Y. 382 , 111 N. E. 1050 , which gave the rule great currency in recent times. It is interesting to note that the rule is stated in the Restatement of Torts, section 395, as applicable to manufacturers, but no analogous rule is announced for vendors.