Hatcher, James T.

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University of Kentucky

Kentucky Law JournalVolume 20 | Issue 2 Article 101932Negligence--Liability of Manufacturer to User ofGoodsJames T. HatcherUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Consumer Protection Law Commons, and the Torts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationHatcher, James T. (1932) "Negligence--Liability of Manufacturer to User of Goods," Kentucky Law Journal: Vol. 20 : Iss. 2 , Article 10.Available at: https://uknowledge.uky.edu/klj/vol20/iss2/10STUDENT NoTEsbut need not be by stealth, if the criminal intent is apparent. Butregardless of its nature, there must always be a taking. Alexander v.Commonwealth, 14 Ky. 290, 20 S. W. 254; Ross v. Commonwealth, 14 Ky.259, S3 S. W. 214. It may be by a non-human agency, i. e. not neces-sarily with the hands. Commonwealth v. Shaw, 4 Allen (Mass.) 308,81 Am. Dec. 706. The taking must also be without the owner's consent.State v. England, 8 Jones (N. C.) 399, 80 Am. Dec. 334.There must be some asportation or carrying away of the propertyand it must be under the dominion and control of the trespasser, eventhough it be but for an instant. Adams v. Commonwealth, 153 Ky. 88,154 S. W. 381; Thompson v. State, 94 Ala. 535, 10 S. 520, 33 Am. St.Rep. 145.Since Larceny at common law was confined to goods and chattels,it is now the rule that the thing taken must be personal property.Blackburn v. Clark, 19 Ky. L. Rep. 659, 41 S. IV. 430. It must be some-thing the law regards as property and of some value, but the leastvalue to the owner is sufficient. Wilson v. State, 1 Port. (Ala.) 118;Commonwealth v. Cabot, 241 Mass. 131, 135 N. E. 465.For there to be larceny the goods taken must be the property ofanother than the taker. Love v. State, 78 Ga. 66, 3 S. E. 893. Specialproperty in another is sufficient and possession is enough as againstothers than the owner. Ward v. People, 3 Hill (N. Y.) 395; Triplett v.Commonwealth, 28 Ky. at 978, 91 S. W. 281; Commonwealth v. Rourke,10 Cush. (Mass.) 397, 399.Lastly, there must be a felonious intent or animus furandi whichexists both at the time of taking and of carrying away. State v.Holmes, 17 Mo. 379, 57 Am. Dec. 269. Taking by mistake is not lar-ceny. Criswell v. State, 24 Tex. App. 606, 7 S. W. 337. Neither is itlarceny to take under a bona fide claim of ownership no matter howunfounded. Ross v. Commonwealth (Ky.) 20 S. W. 214; People v.Schultz, 71 Mich. 315, 38 N. W. 868; Triplett v. Commonwealth, 28 Ky.974, 91 S. W. 281. Ignorance here does not excuse as it might seem,but it does negative a criminal intent.JAsEs LYNE.NEGLIGENCE-LIAILITY OF MANUFACTURER TO USER OF GooDs.-Plain-tiff purchased a bottle of pop in X's place of business and drank partof its contents. A quantity of arsenic troxide wrapped in tinfoil wasin the bottle; as a consequence plaintiff became ill and received perma-nent internal injuries. Judgment for the plaintiff was reversed on theground that plaintiff failed to show that X procured the pop from thedefendant. However the following rule of law was laid down by thecourt: "One who puts articles inherently or intrinsically dangerousto life on the market owes the duty of care to all those persons whoought to have been reasonably foreseen as likely to use them". Nehi.Bottling Company v. Thomas, 236 Ky. 684, 33 S. NV.* (2nd) 701 (1930).The liability of manufacturers or vendors to the ultimate user ofarticles was first recognized in its present form of application in JudgeSanborn's decision in Huset v. J. I. Case Threshing Machine Co., 120178 KENTUCKY LAw JouRNALFed. 865 (1903) where the negligence on the part of the manufacturerwas the placing of defective covering over the cylinder on a threshingmachine. Prior to that time manufacturers were only liable to thirdpersons when the instrumentality of injury was a dangerous article.Thomas v. Winchester, 6 N. Y. 397 (1852), belladonna mislabeled asextract of dandelion. Judge Sanborn's opinion, however, paved the wayfor a long line of decisions which recognized liability in cases of "non-dangerous" articles. After stating the general rule of non-liability ofmanufacturers to third pdrsons he stated three exceptions to this rule.The first exception only is applicable and need be stated here:"An act of negligence of a manufacturer or vendor which is imminentlydangerous to the life or health of mankind and whch is committed inthe preparation or sale of an article intended to preserve, destroy oraffect human life, is actionable by third persons who suffer from thenegligence." This basis of liability has been quoted in Nehi BottlingCo. v. Thomas, supra; Payton's Admr. v. Childers Electric Co. et aL,228 Ky. 44, 14 S. W. (2nd) 208 (1929); and the case has been cited inthe decisions of numerous other courts.One of the most outstanding opinions ever delivered on this subjectwas that of Judge Cardozo in MacPherson v. Buick Motor Co., 217 N. Y.382, 111 N. E. 1050 (1916). The defect was in a wheel on an auto-mobile. Until that time certain categories had been enumerated inwhich to place articles treated by the courts as dangerous, whichenumeration was most difficult and unsatisfactory to apply. Theseclasses were there disregarded and it was held that, "If the nature ofthe thing is such that it is reasonably certain to place life and limb inperil when negligently made it is then a thing of danger." Thismeth6d of determining when liability exists had been used by the Ken-tucky courts in recent decisions. Coca Cola Bottling Works v. Shelton,214 Ky. 118, 282 S. W. 778 (1926), where a bottle of pop was over-charged with carbon gas. The same test has been used by the courtsin other states. Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So.64 (1931), where a bottle of pop was capped with a fly in it; Colbert v.Holland Furnace Co., (Ill.) 164 N. E. 162 (1928), where the air gratingin the floor was defectively installed; White Sewing Machine Co. v.Feisel, 162 N. E. 633 (1927), where a defective plug was used on theend of a cord thru which electricity passed.In many cases the courts have attempted to classify the articlesthat are treated as dangerous. In Olds Motor Works v. Shaffer, 145 Ky.616, 140 S. W. 1047 (1911), the court stated that a manufacturer isliable to third persons, "(1) When he is negligent in the manufactureand sale of an article intrinsically or inherently dangerous to health,life or limb, or (2) when the maker sells an article for general usewhich he knows to be imminently dangerous and unsafe and conceals tothe purchaser defects in its construction from which injury mightreasonably be expected to happen to those using it." In that case the,defect was an automobile with a defectively attached rumble seat and,was held to come within the second condition. This case probably hasSTUDENT Noms 179been cited more than any other Kentucky case on the subject, and hasbeen followed in Ky. Ind. Oil Co. v. Schnitzler, Adm'r., 208 Ky. 508, 271S. W. 570 (1925). Because of the impractibility of applying this testby placing the different articles in their proper class this distinguish-Ing process is highly undesirable. The courts usually prefer to take thefirst exception stated by Judge Sanborn and treat that as the basis ofliability. Osheroff v. Rhodes-Burford Co., 203 Ky. 408, 262 9. W. 583,(1924).Practically every Kentucky opinion rendered in this field of negli-gence contains the words, "imminently, inherently or intrinsically"dangerous, and many of them make that the test of liability. This ismost unfortunate. The extreme difficulty in determining just what thecharacter of the article, the act of the defendant, and the relation ofthe parties must be to permit a proper application of these adverbs asa test will be seen in the cases. Articles treated as "imminently orinherently" dangerous: a brake rod on a railroad coach, Ward v. Pull-man Co., 138 Ky. 554, 128 S. W. 606 (1910); an automobile, Olds MotorWorks v. Shaffer, supra; gasoline poured into a retailer's kerosenetank, Ky Ind. Oil Co. v. Schnitzler, Adm'r., supra; a steering wheel ona farm tractor, Goullon v. Ford Motor Co., 44 Fed. (2nd) 310 (1930);hair dressing, Cahill v. Inecto, Inc., 203 N. Y. S. 1 (1924). Articlestreated as not "Imminently or inherently" dangerous: an elevator,Slmons v. Gregory, 120 Ky. 116, 85 S. W. 751 (1905); combustible oilin an oil engine, Berger v. Standard Oil Co., 126 Ky. 155, 103 S. W. 245(1907); a defectively installed cook stove, Besinger Outfitting Co. v.Seamans, Adm'r.. 213 Ky. 157. 208 S. W. 941 (1926); a gas flatiron,.Pitman v. Lynn Gas d Electric Co., 241 Mass. 322, 35 N. E. 233 (1922);defective circus seats, Lareabee v. Des Moines Tent and Awning Go.et al., 189 Iowa 319, 178 N. W. 373 (1920).The law on this subject seems to be rather definitely settled. As aconsequence of the past quarter century development, very littleremains of that former immunity of manufacturers from liability fornegligence in the fabrication of "non-dangerous" articles. "Things ofdanger" in this field of the law are what a growing civilizationdemands them to be. Therefore it seems that more just and consistentdecisions would result If the courts applied the test laid down by JudgeCardozo rather than the one followed in the principle case (NehiBottling Go. v. Thomas).JAs. T. HATCHm.SURETY-CONTRACTOR's BoND-LiABILITY TO M ATEIAITE .- In theMay, 1931, issue of the Kentucky Law Journal there may be found acase comment on the case of Standard Oil Co. v. National Surety Co.,234 Ky. 764; 29 S. W. (2d) 29. This case was cited as controlling inthe case of Aetna Casualty & Surety Co. v. United States Gypsum Co.,239 Ky. 247; 39 S. W. (2d) 234.By the terms of the bond in the latter (and principal) case thesurety was bound to a hotel company in the sum of $241,197, the con-dition being: "If the principal (contractor) shall faithfully perform

Negligence--Liability of Manufacturer to User of Goods

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Negligence--Liability of Manufacturer to User of Goods

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