Abercrombie v. Union Portland Cement Co.

DUNN, J.

Appellant brought this action against respondent to recover damages Sustained by him by the use of certain cement manufactured by respondent and sold to appellant by one Charles D. Story. Appellant claims the right *233 to recover from respondent because of his reliance upon certain representations made hy respondent as to the excellent quality of the cement when properly mixed with other ingredients and used for the purpose for which cement is generally and commonly used and because of the failure of said cement to become hard, firm and compact, as respondent had represented in its advertisements. A general and special demurrer to this complaint was filed by respondent, which was overruled by the court, and thereupon trial was had before a jury, which returned a verdict against appellant. Judgment for costs was entered against appellant and he appealed.

Several errors are assigned by appellant which we think it will be unnecessary to examine, since respondent is pressing its demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action, and an examination of the complaint convinces us that the demurrer should be sustained.

Respondent contends that the complaint is fatally defective for the reason that it does not show a contractual relation between appellant and respondent.

The rule governing this class of cases, which we think is supported by the great weight of authority, is laid down in Cyc. as follows:

‘1 The liability of a vendor or manufacturer for negligence, except as regulated by contract, must arise from breach of a duty which he owes to the public.

“Although it has been said that the duty which he owes to the public, for breach of which one injured may recover, is limited to instruments and articles in their nature calculated to do injury, such as are essentially elements of danger, and to acts that are ordinarily dangerous to life and property; and that if the wrongful act be not imminently dangerous to life and property, the negligent vendor is liable only to the party with whom be contracted, it will appear on the contrary that the vendor or manufacturer may be held liable to persons with whom he has no contractual relation, for injury caused by mere negligence in the *234 manufacture of an article harmless in kind, but made dangerous by defect, and knowingly putting such article upon the market in the ordinary course of business without notice of such defeet. A more explicit statement of the law exonerates the vendor or manufacturer from liability for negligence to persons with whom he has no contractual relation, as a general rule, with three exceptions, as follows: (1) "Where the negligent act is imminently dangerous and is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life; (2) where the act is that of an owner, combined with an invitation to the party thereby injured, to use the defective appliance on such owner’s premises; (3) where the act consists in the sale and delivery of an article, with knowledge of undisclosed danger and without notice of its qualities whereby any person is injured in a way that might reasonably have been expected.” (29 Cyc. 478, 4 a and b; 24 R. C. L., p. 512, sec. 804; National Sav. Bank of the District of Columbia v. Ward, 100 U. S. 195 , 25 L. ed. 621; 2 Cooley on Torts, 3d ed., 1486; Huset v. J. I. Case Threshing Machine Co., 120 Fed. 865 , 57 C. C. A. 237 ; Bragdon v. Perkins-Campbell Co., 87 Fed. 109 , 30 C. C. A. 567 ; Kerwin v. Chippewa Shoe Mfg. Co., 163 Wis. 428 , 157 N. W. 1101 , L. R. A. 1916E, 1188. See, also, 24 R. C. L., p. 158, sec. 431.)

Appellant attempts to bring himself within the provisions of C. S., see. 5687, subd. 1, which reads as follows: “1. "Where the buyer, expressly or by implication, makes known to the seller, the particular purpose for which the goods are required, and it appears that the buyer reiies on .the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.”

The difficulty with this position of appellant, if there were no other, is that this provision of the Idaho law applies to a contractual relation between the seller and the buyer, and appellant is not suing the seller, but the manufacturer, with '•whom he has had no dealings so far as the complaint discloses. The complaint in the particular mentioned is fatally *235 defective. The judgment of the trial court must be affirmed, and it is so ordered. Costs awarded to respondent.

Rice, C. J., and Budge and Lee, JJ., concur. McCarthy, J., being disqualified, took no part.