Kerwin v. Chippewa Shoe Manufacturing Co.

SibbecKER, J. Tbe plaintiff claims that tbe defendant sboe company is liable to bim under tbe rule wbicb bolds a manufacturer or dealer in articles liable to persons other than .tbe immediate purchaser for injuries caused by tbe wrongful and negligent conduct of tbe manufacturer or dealer. Tbe general rule of liability of a manufacturer or seller of an article to persons other than bis immediate purchaser was considered and applied in Hasbrouck v. Armour & Co. 139 Wis. 357, 121 N. W. 157. It was there held that, as a general rule, a manufacturer or dealer of an article is not liable to persons other than tbe immediate purchasers of such articles, for want of any contractual relationship and privity between tbe manufacturer and tbe persons buying from tbe manufacturer’s immediate purchaser. Tbe court also recognized tbe well established exceptions to this rule under which it has been held that tbe law imposes a duty on a manufacturer or seller of an imminently dangerous article, in favor of tbe user or consumer of such article, to exercise care for their protection commensurate with tbe peril and dangers involved. Under tbe following exceptional facts and circumstances a manufacturer or dealer was considered to be liable to third persons if such article causes an injury wbicb was reasonably to be anticipated: (1) “A manufacturer or dealer who puts out, sells, or delivers, without notice to others of its dangerous qualities, an article wbicb invites a certain use, and which article is not inherently dangerous, but wbicb by reason of negligent construction be knows to be imminently dangerous to life and limb, or is manifestly dangerous when used as it is intended to be used.”' (2) “A manufacturer or dealer who puts out and sells articles inherently dangerous, without notice of their dangerous nature, or with a misleading notice, or negligently in any other way.” (3) “A manufacturer or dealer who makes and sells an article intended to preserve or affect human life is liable to third persons sustaining injury caused by bis negligence in preparing, compounding, labeling, or directing tbe use of tbe article.” [432] It is clear from the facts alleged in tbe complaiht tbat the last foregoing (3) class of cases does not embrace this case. It remains to be ascertained whether the facts alleged constitute a cause of action which is embraced in either of the other two classes above specified. It is obvious from the allegations of the complaint that the presence of a nail in the sole of the shoe plaintiff wore is the danger complained of in this case as the proximate cause of his injury. The allegations of the complaint must be interpreted in view of this fact. The allegations to the effect that plaintiff desired and could only wear shoes having sewed soles and that the defendant Rovelsky warranted the shoes to be such shoes cannot affect the responsibility of the manufacturer. Much stress is placed in argument on the allegation that the defendant knew, or in the exercise of reasonable care should have known, that nails were used in soling the shoes and that such nails were imminently dangerous to the life, limb, and health of the wearer, in that such nails would, without the knowledge of the wearer, “penetrate through the skin into the flesh of the foot, causing and resulting in infection, blood-poisoning, and the consequences thereof.” We must interpret these allegations in their ordinary significance in the light of common knowledge. It is obvious that a nail used to fasten a shoe sole is not of an inherently dangerous nature. To say otherwise would be a contradiction of the universal experience of mankind in wearing “nail-soled shoes.” Can it then be said that a nail used to fasten on a shoe sole, in a deceptive or negligent manner in the construction of the shoe, rendered the shoe so imminently dangerous to the life, limb, and health of the wearer that the defendants ought to have anticipated that it naturally and probably would produce such an injury? The facts alleged do not present a case of such an inherent danger in the material used or the manner of manufacturing the shoe. Nor do the facts stated show that the alleged negligent manner of constructing the shoe made it an imminently dangerous ar433 tide in the light of the nature of the defect and the uses and purposes for which it was designed. Under these facts and circumstances of the case it must be held that the complaint fails to state a cause of action against the defendant Chippewa Shoe Manufacturing Company, and the court properly sustained the demurrer to the complaint. By the Court. — The order appealed from is affirmed. KeRWIN, J., took no part.