Ebbert v. Philadelphia Electric Co.

Opinion by Mr. Justice Maxey, This is an action in trespass for damages arising from personal injuries. The victim was Esther E. Ebbert; the instrumentality was an electrically driven wringer attached to an electric washing machine. The two rollers of the wringer were equipped with a “release bar” marked at each end “Touch Release,” which when pushed doAvn by human touch was designed to cause the rollers to spring apart four or five inches to release anything caught therein. Its status in this case is that of a “safety device.” Mrs. Ebbert’s finger tips were drawn between the rollers while she was “feeding” a bathrobe into the rollers. She pressed the release but the “safety device” failed to function and her entire hand was drawn between the rollers and severely injured. She and her husband then brought this suit against the defendant, a retail dealer, the wringer’s vendor. The jury returned a verdict in favor of Mrs. Ebbert in the sum of $1,000 and in favor of the husband in the sum of $108. A motion for judgment for defend *259 ant n. o. v. was refused. Appeals were taken to the Superior Court and there the judgments were affirmed (126 Pa. Superior Ct. 351, 191 A. 384). Appeals to this court were then allowed. In plaintiff’s statement of claim it is set forth that the defendant expressly warranted the washing machine and wringer to he free from áll mechanical defects, and that “by a light sharp blow or touch,” the safety device would release the rollers instantly. The negligence charged was (a) “in selling . . . a washing machine and wringer which was mechanically and inherently dangerous, in that the shuttle in the safety device . . . was bent, out of line, so that it did not engage one arm of the device which released the rollers; (b) in failing to inspect the wringer . . . for . . . easily discoverable mechanical defects before delivering the same to the plaintiffs; (c) . . .; (d) . . .; (e) in inducing plaintiffs to purchase the machine and wringer by making unfounded and false warranties and representations as to its mechanical perfection and safety upon which . . . the plaintiff, Esther E. Ebbert, had the right to and did rely.” The defendant by affidavit filed denied the alleged warranting of the machine as free from all mechanical defects and that any salesman had authority so to warrant that the wringer could be operated without danger' to anyone who inserted their fingers into the roller. It was averred further that the washer and wringer were not manufactured by the defendant, but the defendant was merely engaged in its sale as a dealer and that if there were any defects these were of manufacture and not the result of any negligence on defendant’s part. The written contract of sale dated September 25,1934, provided, inter alia, that “the defendant guaranteed the appliance against defects of manufacture for a period of one year from date . . . and will replace free, any part which an examination by the company shall disclose to be defective.” Between the time of delivery, *260 September 25th and December 12, 1934, Mrs. Ebbert used this machine once a week, during which eleven weeks, until on the latter date, she had no occasion to attempt to use the release bar. On December 12th, when to save her hand from injury she put the release bar to the test, it failed her. A witness who had been a washing machine service man for eighteen years testified in behalf of the plaintiffs that the safety device did not work because the cam shaft operated by the “touch release bar” was bent in such a way that it engaged only one of the release bars which held the “safety catches” but that it did not engage the other. The machine contained two of these bars, each connected with a safety catch at opposite ends of the enclosed chamber. If the device functioned properly the cam shaft would draw these bars towards the center releasing the safety catch at each end, which in turn removed the pressure from the top roller and as a result the roller sprang upward. But as on one end the cam shaft was “bent so far away that it did not engage with the rod” the pressure was released from only one end of the roller and as a result this end sprang up one-half inch while the other end remained tight against the lower roller. The witness stated further that it would not be possible to bind the cam shaft into the improper position it was in without the use of tools. No tool marks were visible on the cam shaft. He said the defect he found “looked to” him “as though it is a defect in the manufacture.” He was asked on cross-examination to account for the fact that the safety device worked at the time of the sale demonstration but did not work on the date of the accident. He replied: “That is possible. If you hit it hard, it might jar it loose on one side.” He was asked as to “the possibility that there was some wear in there and it would release at one time and not at a subsequent time.” He answered: “I do not believe it, but you might hit it *261 there and it not being engaged, and the next time it would be pulled down.” Defendant called as a witness its director of the electric appliance sales who testified that they bought the washers direct from the factory to sell at retail to customers, that they have employees who “service” these washers, and that the washers are inspected only for appearance to make sure they are not damaged by the railroad. He was asked: “What instruction do you give the salesmen? A. We ask the salesmen to instruct the customer, the buyer of every washer, about its use, and that includes the touch release.” There was offered no testimony as to whether or not the washer in question was in proper working order when it was sold to the plaintiffs. Judge Brown in refusing defendant’s motion for judgment n. o. v. said: “The chamber containing the safety device was open at the bottom and a mere glance at the cam shaft would have disclosed the imperfect condition.” This record presents these questions: (1) Were there factual issues requiring submission to a jury? (2) If there were and if the jury resolved those issues in favor of the plaintiffs, did an action lie against the vendor of the wringer or should it have been brought against the manufacturer? (3) Is there any legal basis for recovery in this case? As to No. 1, both the trial judge and the Superior Court held that there were sufficiently supported issues of fact. Speaking for the Superior Court, Judge Parker aptly said: “While the salesman demonstrated the action of the safety device when he installed the machine and it then worked, he demonstrated from the opposite side of the wringer from that on which the wife plaintiff was standing when she was injured. . . . Proof of the factum probandum . . . may not be based upon mere conjecture or guess work (Freedman v. Wagner & Kar peles, 73 Pa. Superior Ct. 180), yet it was not necessary to exclude every other possible cause which the ingenu *262 ity of counsel might suggest: Madden v. Great A. & P. Tea Co., 106 Pa. Superior Ct. 474, 162 A. 687; Gallinas v. Work Co., 288 Pa. 443, 456, 136 A. 223. . . . The test to be applied was whether the circumstances shown were such as would satisfy a reasonable and well balanced mind that the defective condition of the cam existed when the machine was delivered to plaintiffs: Strobel v. Park, 292 Pa. 200, 207, 140 A. 877. Taking into account the fact that the defendant offered no evidence in contradiction of plaintiffs’ evidence we are convinced that the evidence was sufficient to meet the legal requirements for such proof.” He also held that the question of Mrs. Ebbert’s contributory negligence was for the jury. We agree with both of these conclusions. As to question No. 2, appellant contends for the acceptance of a rule that the vendor of a manufactured article has no obligation to the vendee, in respect to that article, other than an obligation expressly undertaken, unless the article is inherently dangerous. Appellant says: “A washer and wringer are not appliances that are inherently dangerous and injury results only when the user fails in precaution.” The phrase “inherently dangerous” is found in many reported cases, but there are situations like that now presented to us, in which the phrase is of little practical use. * As modern mechanisms multiply, the futility of invoking this phrase in the adjudication of cases becomes increasingly apparent. Machines whose normal functions are not to injure, possess harmful potencies when constructed defectively or operated carelessly. An automobile is such a machine. Old-fashioned wringers excited no apprehensions of danger. While they oc *263 casionally pinched fingers and while their functions were exactly the same as modern electrically driven wringers, their dangerous potentialities were far less. When in the rollers of the former, the operator’s fingers were enmeshed, she could immediately “shut off the power” (which came from her other arm) or quickly put the wringer “in reverse.” With an electrically driven wringer, the operator must rely on a “safety device,” such as failed in the instant case. Likewise (hv way of example), the old-fashioned icebox contained no mechanism or chemicals which presented any possibilities of danger to persons using it. Yet electrically and chemically equipped modern refrigerators may, as is well known, become dangerous instrumentalities when they fail to function. The difference in the possible dangers lurking respectively in two different mechanisms whose functions are identical is, like most differences, one of degree. A vendor “demonstrating” an old-fashioned wringer would not need to be as skillful or as careful as a vendor “demonstrating,” to promote a sale, an electrically driven wringer. A “demonstration” of a simple old-fashioned wringer was probably not necessary. Since there are many varieties of machines used for work normally not dangerous, and since many machines used for such work become dangerous when not constructed with care, each case must be decided on its own special facts, and verbal formulas which were useful in solving the legal problems in the era of the “simple life” cannot now be judicially accorded their former importance. The public safety and security against the fatal or injurious consequences of negligence in demonstrating and testing mechanical devices for common public use and in which lurk obvious possibilities of danger is a consideration to which courts cannot be indifferent. An imperative social duty requires a vendor of a mechanical device to take at least such easily available precautions as are reasonably likely to prevent *264 serious injury to those who by using such a device may be exposed to dangers arising from its defective construction. Appellant in support of its position cites cases which are distinguishable from the case at bar. One of these is West v. Emanuel, 198 Pa. 180, 47 A. 965. In that case recovery was sought against a druggist because he sold a proprietary headache powder in an original package to a customer who apparently died from the effects of taking it. It was held that there was no cause of action since a druggist is not required to analyze the contents of each bottle or package he receives. It would, for example, be utterly impracticable and unreasonable to require grocers to open and analyze the contents of every can of food they sell. The purchaser in such cases does not expect any such precaution to he taken and relies wholly upon the integrity, good faith and care of the person who put up the food in the cans. The rule of the nonliability of vendors in “original package” cases is firmly established in the law. It is expressly recognized in section 401 of the Restatement of the Law of Torts, which declares that dealers of goods sold in original packages are not liable for “defective condition” unless such condition would be disclosed by “even a cursory inspection.” Appellant quotes section 402 (page 1089) of the Restatement of the Law of Torts, in which it is said that “a wholesale or retail dealer who sells in their original packages goods bought from reputable manufacturers, acts as a conduit through which the goods pass from manufacturer to consumer, who buys them in reliance upon the manufacturer’s reputation for competence and care. A vendor of such goods is therefore under no duty to subject them to rigid inspection or tests before selling.” The inapplicability of that statement to the state of facts before us is obvious. By no sanctioned verbal license could the defendant in the instant case be considered a “mere conduit” from the manufacturer to the *265 buyer. It did not sell the wringer in the “original pack ageIt took upon itself the duty of subjecting the wringer to ■ “inspection and tests” before selling. It is a legitimate inference that the cost of such inspection and tests was added to the price of the equipment. Defendant’s director of appliance sales testified: “We have service men to take care of appliances, something over 100 of them, but they take care of all appliances, refrigerators, washers and all.” We must assume that the work of these service men, i. e., testing and demonstrating appliances is essential work, that their salaries and wages are absorbed in the purchase price and that therefore a purchaser having paid the vendor for these tests and demonstrations, has a right to recover from the vendor for injuries resulting from inadequately tested machines the latter sold. To the question propounded: “Had defendant a duty to inspect the article for defects?” the answer is: The defendant assumed this duty and was paid for discharging it. This is one of those cases in which the action was properly brought against the vendor. The purchaser did not have to look to the manufacturer for redress. The vendor may call upon the manufacturer to answer to it for the manufacturer’s default, if it sees fit to do so. In King Hardware Co., v. Ennis (Ga.), 147 S. E. 119, a dealer sold a gasoline stove to plaintiff’s husband. It was “demonstrated” and warranted “safe.” There was a defective pipe, permitting a leakage of gas, and an explosion occurred. For resulting injuries plaintiff sued. A verdict for plaintiff was sustained. The Supreme Court of Georgia said: “We think it may be reasonably inferred from all the facts alleged that the defect was one which a reasonably prudent dealer should have, discovered before placing, it upon the market and delivering it to a customer. . . . It is a matter of common knowledge that cooking stoves do not come in sealed packages, but are readily subject to be exposed, and usually are exposed, if not demonstrated, in *266 the process of selling. It is well known that dealers selling such articles do as a matter of fact pretend to know something of their construction, and of the manner of their manipulation, and the case is different from those instances where the dealer receives and transmits an article in an unbroken package, with no occasion to investigate or to become acquainted with its character [citing cases].” To the same effect are Moore v. Jefferson Distilling Co., 12 La. App. 405, 123 So. 384; Garvey v. Namm, 136 App. Div. 815, 121 N. Y. S. 442; Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 167 N. E. 235. Section 388 of the Restatement of the Law of Torts reads as follows: “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) . . . (b) . . . (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so.” On page 1041, “suppliers” are defined as including “vendors, lessors, donors or lenders irrespective of whether the chattel is made by them or by a third person.” We think that a “supplier” who under the situation presented by this case fails to determine by adequate tests (for which it was compensated as heretofore noted) whether or not an electrically driven wringer was in a dangerous condition for use, is as responsible morally and legally to one who is injured because of such failure as is a supplier who “fails to exercise reasonable care to inform them [i. e., the vendees] of its dangerous condition.” Our decision is that the instant case is not one in which the wronged party’s only redress for a defect in the manufacture of an article is in an action against *267 the manufacturer. The vendor here is not a mere commercial “conduit” with no legal responsibility for the condition of the goods it “channels.” Closely related to question No. 2, as to the liability of a vendor to a vendee under the circumstances present here for injuries resulting from a defect in manufacture, is question No. 3, which, as is well expressed by Judge Parker in his opinion, follows: “Is an action in trespass available to the plaintiffs to remedy the wrongs alleged to have been suffered by them?” The trial court and the Superior Court predicated defendant’s liability on breach of the warranty pleaded. Appellant contends that “under this guarantee there was only one obligation upon the defendant and that was [a qualified] obligation to replace defective parts.” If we concede that this guarantee is open to the interpretation appellant puts upon it, it must be conceded that it is equally open to the interpretation appellee puts upon it, and “it is an elementary proposition that a written contract should in case of doubt be interpreted against the party who has drawn it”: Hempfield Twp. Sch. Dist. v. Cavalier et al., 309 Pa. 460, 463, 164 A. 602. This means that whatever doubt there may be in this guarantee, the benefit of it belongs to appellee. The Superior Court held that “we have here an express warranty against mechanical defects and the dealer thereby assumed the responsibilities of the manufacturer for the working conditions of the wringer. . . . It was clearly within the contemplation of the parties that the machine would so operate that it would, upon a mere touch, release the rollers and avoid serious injury.” The Superior Court’s opinion clearly distinguishes the instant case from Hill & MacMillan, Inc., v. Taylor, 304 Pa. 18, 155 A. 103, cited by appellant. It quotes from 2 Williston on Sales, section 614a, page 1545, in support of the proposition that the plaintiffs were entitled to recover consequential damages for personal injuries for breach of the warranty that was a *268 part of the contract of sale. Reference is also made in Judge Parker’s opinion to the case of Node v. Coca-Cola Bottling Works, 102 Pa. Superior Ct. 515, 156 A. 537. Williston on Sales, Vol. 1, section 197, page 373, expresses the following: “. . . The action upon a warranty was in its origin a pure action of tort. There is no doubt that to-day the obligation of a warrantor is generally conceived of as contractual, and there can be no doubt also that a seller may expressly promise to be answerable for some alleged quality of the articles sold, or that if he makes such a promise for good consideration he enters into a contract. This, however, does not either upon authority or reason exhaust the possibilities of express warranties. It should not be the law, and by the weight of modern authority, it is not the law that a seller who by positive affirmation induces a buyer to enter into a bargain can escape from liability by denying that his affirmation was an offer to contract. A positive representation of fact is enough to render him liable. The distinction between warranty and representation which is important in some branches of the law is not appropriate here. The representation of fact which induces a bargain is a warranty.” In Dushane v. Benedict, 120 U. S. 630 (cited in the Superior Court’s opinion), the Supreme Court of the United States said: “The damages recoverable for a breach of warranty, or for a false representation, include all damages, which, in the contemplation of the parties, or according to the natural or usual course of things may result from the wrongful act.” In Boston Woven Rose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N. E. 657, 51 L. R. A. 781, Chief Justice Holmes (then of the Supreme Judicial Court of Massachusetts) said: “Whether the false warranty be called a tort or a breach of contract the consequence which ensued must be taken to have been contemplated, and was not too remote.” While not differing with the trial court and the Superior Court in basing defendant’s liability on breach *269 of warranty, we think an equally solid basis for recovery is defendant’s inadequate performance of the duty of inspection and demonstration; The jury found this inadequate performance on evidence which (it is true) was none too persuasive, but which, nevertheless, we must, in view of the verdict, accept as a fact. This duty, thus inadequately performed, defendant assumed, and its assured and expected thorough discharge was doubtless one of the inducements for the purchase of the washing machine and wringer. The test to determine whether there is liability in an action of tort is in the answer to the question whether the defendant by an act or omission injured another by disregarding a duty imposed by law in respect to that other. Judge Cardozo said in MacPherson v. Buich Motor Co., 217 N. Y. 382, 111 N. E. 1050, 1053 : “We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.” One duty imposed by law is to use due diligence to avoid causing harm which an individual has no legal right to inflict upon another. This duty is breached by any legally harmful act or omission which might have been foreseen and avoided, especially when the person injured is one for whose safety and protection the defendant was at the time under some special obligation to act with due foresight. Holmes in “The Common Law,” page 145, says: “Most liabilities in tort . . . are founded on the infliction of harm which the defendant had a reasonable opportunity to avoid at the time of the acts or omissions which were its proximate cause.” In the instant case the defendant took upon itself for a consideration the duty of demonstrating and adequately testing an electric wringer, whose failure to function in an emergency, as the defendant had given *270 plaintiff reason to believe it would, indicates that the test was negligently made and that this negligence was the proximate cause of the proven injuries. In Bisson v. Kelly, 314 Pa. 99, 110, 170 A. 139, we said: “The duty defendant breached was a duty imposed by law, not a duty self-imposed by contract. It is a primary social duty of every person to take thought and have a care lest his action result in injuries to others. This social duty the law recognizes and enforces, and for any injury resulting from any person’s lack of elementary forethought, the law holds that person accountable. A normal human being is held to foresee those injuries which are the consequence of his acts of omission or commission which he, as a reasonable human being, should have foreseen.”. The judgments are affirmed. Footnotes [*] We pointed out in Silveus v. Grossman, 307 Pa. 272, 276, 161 A. 362, the impracticability of the test of “inherently dangerous” as applied to work entrusted to an independent contractor and as determinative of the liability of the man who so entrusts such work to another.