Clement v. Crosby & Co.

Hooker, J.

The plaintiff brought an action to recover damages for a personal injury, received by her through burning, occasioned by the inflammable nature of a compound that she was using to polish a gas range. The defendants are the manufacturer of the compound, Crosby *295 & Co., a corporation, and'one Arthur O. G. Rommeck, a retailer, and the declaration states .that she was led to purchase from the latter through her agent, and to use it by reason of the invitation, solicitation, and representations of the defendant Crosby & Co., it being sold without notice or warning of its dangerous nature.

The defendants demurred to the declaration, stating the following grounds:

1. A misjoinder of causes of action.

2. A misjoinder of defendants.

3. A failure to state a cause of action against Crosby & Co.

The circuit judge overruled the demurrer of Crosby & Co., but sustained that of Rommeck. Crosby & Co. has removed the cause to this court by certiorari under the statute, Act No. 310, Pub. Acts 1905. j""lt*is obvious that this is a charge of concurring negligence of two persons, and that the separate act of each was a contributing cause to the injury. If the manufacturer is justly chargeable with knowingly making and putting upon the market a highly dangerous article, which did not contain intrinsic evidence of its dangerous character, without notice by label or otherwise of its dangerous character, he failed in his duty to such persons as should purchase it, and any person injured by it might have a cause of action against him, although he purchased it from a third party or retailer. The fact that he did so buy it would be no defense to the manufacturer, even if the retailer had full knowledge of the dangerous nature of the article, and sold it without warning. In such a case an action would lie against both jointly, or separate actions might be brought, and, if the only point raised by the demurrer was that these acts being separate this was a ease of a misjoinder of actions and parties, we should be compelled to overrule the demurrer. Churchill v. Holt, 127 Mass. 165 ; Bryant v. Bigelow Carpet Co., 131 Mass. 503 ; Hawkesworth v. Thompson, 98 Mass. 77 ; Colegrove v. Rail *296 road Co., 20 N. Y. 492 ; Chipman v. Palmer, 77 N. Y. 51 ; Slater v. Mersereau, 64 N. Y. 147 ; Masterson v. Railroad Co., 84 N. Y. 256 ; Boyd v. Watt, 27 Ohio St. 268 ; Matthews v. Railroad Co., 56 N. J. Law, 35 (22 L. R. A. 261).

The circuit judge has held that the declaration does not state a cause of action against Rommeck, and that question is not before us. Does it state a cause of action against Crosby & Co. ? The declaration states that the plaintiff bought from Rommeck some stove polish without any warning of its dangerous nature, that it was manufactured and put upon the market by defendant Crosby & Co. as a stove polish, and that— ‘ ‘ It was and then and there became the duty of the defendants and each of them to know the property and properties of the goods manufactured and sold by them, and that they should not manufacture and sell both or either of them dangerous and highly inflammable substances of such a composition and character as to be liable to ignite, catch fire, explode, and spontaneously to burn, and thereby to bring pain, suffering, and injury upon and to persons innocently and properly using the same, who are ignorant of the constituent parts of said product which was and is artfully and deceitfully kept from the knowledge of the purchasing public, as well as the dangers or risks of the use of said compound product and composition, 6-5-4, so furnished to plaintiff by and through the instrumentality of the defendants.”

We are of the opinion that the statement that it was the duty of Crosby & Co. to know the property and properties of an article manufactured, and put upon the market by it, as a stove polish, and that it should not manufacture and sell dangerous and highly inflammable substance of such a composition and character as to be liable to ignite, explode or spontaneously burn, and not to deceitfully withhold information of such dangers from the public, is a sufficient allegation of defendant’s duty, although it does not allege that defendant’s product was all of that character. There are authorities that hold that one who *297 carelessly places upon the market a dangerous article may be chargeable with negligence to third persons as in case of poisons. Barney v. Burstenbinder, 7 Lans. (N. Y.) 210; Davis v. Guarnieri, 45 Ohio St. 470 ; Hall v. Rankin, 87 Iowa, 261 . And in case of a dangerous machine. Schubert v. J. R. Clark Co., 49 Minn. 331 (15 L. R. A. 818, 45 Alb. Law J. 497 ); Carter v. Towne, 98 Mass. 567 ; Wellington v. Oil Co., 104 Mass. 64 . See 1 Thompson on Negligence, § 821; Elkins, Bly & Co. v. McKean, 79 Pa. 493, 502 . George v. Skivington, L. R. 5 Exch. 1.

This declaration might charge some of these things more positively, but, even if a scienter be necessary (which we do not determine), it is necessarily implied by the allegation of deceitful and artful 'withholding of knowledge from the public.

As to want of warning from Crosby & Co., the allegation substantially amounts to such a charge. It states the manufacture of a dangerous compound, and placing it upon the market, at the same time deceitfully and willfully concealing from the public its dangerous ele4 ments and properties; that these are such as to make it liable to spontaneous combustion, explosion, etc.; that plaintiff purchased the same without any warning — i. e., from either defendant. This is to be taken in connection with the charge of concealment. It amounts to a charge of fraudulent putting upon the market within the rule stated by defendant’s counsel:

“A manufacturer can become liable to subsequent purchasers who do not stand in relations of privity with him, in two cases only, to wit: (a) When the manufactured, with the actual knowledge of defects in his product, willfully and fraudulently places same. on the market. (6) When the article sold is one which is per se dangerous to human life.”

We are of the opinion that this declaration contains, in substance, the essential allegations of a cause of action, and that the order of the learned circuit judge should not be reversed. In saying this, we do not say whether this *298 article is one which was per se dangerous. It is enough that the declaration alleges that it was dangerous. If not dangerous per se, the question is open to proof.

The order is affirmed.

McAlvay, O. J., and Montgomery, Ostrander, and Moore, JJ., concurred.