Opinion
No. 32733.
May 24, 1937.
1. PLEADING.
Plea of general issue put plaintiff to proof of material allegations in his declaration.
2. NEGLIGENCE.
A person buying articles not constituting food, drink or medicine taken internally, but substances intended for use on external objects, such as fertilizers, cannot hold seller liable for injury resulting from use thereof, if bought by seller from reputable manufacturer or dealer.
3. NEGLIGENCE.
Evidence in farmer's action for injuries caused by contact of his hands with commercial fertilizer purchased from defendant held insufficient to take to jury question of defendant's liability, in absence of proof that defendant manufactured fertilizer or knew it was improperly prepared, that it was in fact dangerous, or that defendant knew how farmers put out fertilizers.
APPEAL from the circuit court of Simpson county. HON. EDGAR M. LANE, Judge.
Edwards Edwards, of Mendenhall, for appellant.
The court erred in sustaining the motion for a peremptory instruction.
Section 4981, Code of 1930, defines sulphuric acid when in any preparation containing an amount of free or unneutralized acid in a concentration of ten per centum or more to be a "dangerous substance." Ammonia is also defined to be a dangerous substance by this section.
Section 4035, Code of 1930, requires the following: "Every lot or parcel of commercial fertilizer or fertilizer material sold, offered or exposed for sale or distribution within this state shall bear in a conspicuous place on the outside thereof, a tag, containing a plainly printed statement in the English language clearly and truly certifying: (a) the net weight of the contents of the package, lot or parcel; (b) the name, brand, or trade mark; (c) the name and principal address of the manufacturer or person or firm responsible for placing the commodity on the market, etc."
Under paragraph (c) above, the defendant held itself out to the public that it was responsible for placing the commodity on the market, and we say this for the reason the defendant did not print the name of the manufacturer on the tag as required by statute and now it cannot be permitted to deny manufacture of the fertilizer. Defendant is estopped by statute from the benefit of any plea or evidence in support of any plea denying that it manufactured the sulphate of ammonia in this case.
One who puts out as his own a chattel manufactured by another is subject to the same liability as though he were its manufacturer.
Swift Co. v. Hawkins, 164 So. 231; A.L.I., Restatement of Torts, sec. 400; Burkhardt v. Armour Co., 115 Conn. 249, 161 A. 385, 90 A.L.R. 1260; Slavin v. F.H. Leggett Co., 114 N.J. Law, 421, 177 A. 120; Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N.E. 474; Fleetwood v. Swift Co., 27 Ga. App. 502, 108 S.E. 909.
The power to grant a peremptory instruction should be exercised with great caution and should not be exercised except in cases wherein there is no room for doubt and should not be given where the "evidence taken as wholly true proves, or fairly tends to prove, the case by any or all of the conclusions properly and legally deducible therefrom."
Alabama Great Southern Ry. Co. v. Daniel, 66 So. 730; Swan v. Liverpool, London Globe Ins. Co., 52 Miss. 704; Perry v. Clarke, 5 How. 500.
In addition to the law announced in the case of Swift Co. v. Hawkins, 164 So. 231, estopping the appellee from claiming that it was not the manufacturer, and the statute, section 4035, Code of 1930, we have the admission in the special plea filed by the appellee that it purchased the fertilizer in bulk and sacked it and sold it to appellant. The declaration charged one continuous sequence of negligent acts which consisted in the negligent manufacture, sacking and sale without warning, which three negligent acts all joined together constituted one cause of action in tort.
24 R.C.L., page 508, par. 801, page 512, par. 804.
In the case at bar we have two inherently dangerous substances, ammonia and sulphuric acid.
24 R.C.L. 515, par. 807.
In the case at bar the appellee knew or could have known by the exercise of reasonable care and caution that the custom for many years in the State of Mississippi is that farmers generally all over the country put out commercial fertilizers with their hands. This fact was proven in the case.
Every person is held to the natural consequences of his acts and when one has created a peril he cannot excuse himself upon the excuse that he did not intend or expect an injury.
20 R.C.L. 15, par. 11; 41 A.L.R., pages 38-40; Kentucky Independent Oil Co. v. Schitler, 271 Ky. 507, 39 A.L.R. 979; Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N.E. 474; Swift Co. v. Hawkins, 164 So. 231.
Green, Green Jackson, of Jackson, for appellant.
Sulphate of ammonia is not an inherently dangerous substance so as to impose liability upon a retailer who bought in due course from a reputable wholesaler and was ignorant of any defect there in existence.
Restatement of the Law of Torts, Negligence, Sec. 388; Wheeler v. Laurel Bottling Works, 111 Miss. 442, 71 So. 744; 13 A.L.R. 1183; 17 A.L.R. 672; 41 A.L.R. 40; Lenz v. Standard Oil Co., 186 A. 330; Cliff v. California Spray-Chemical Co., 257 P. 102; Baker v. Sears Roebuck Co., 16 F. Supp. 925; Walstrom Optical Co. v. Miller, 59 S.W.2d 895; Smith v. Kresge Co., 79 Fed. 2d 361; Bird v. Ford Motor Co., 15 F. Supp. 590; Hruska v. Parke, Davis Co., 6 F.2d 536; 45 C.J. 888; Sections 4035, 4051 and 4981, Code of 1930; 24 R.C.L. 507; Kress v. Lindsey, 262 Fed. 331, 13 A.L.R. 1170; Pillars v. Reynolds Tobacco Co., 117 Miss. 490, 78 So. 365; Green v. Brown, 159 Miss. 893, 133 So. 154; Cudahy Packing Co. v. Baskin, 170 Miss. 834, 155 So. 218; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726; Woolworth v. Haney, 170 So. 150; 105 A.L.R. 1502; Fisher v. Bottling Works, 84 F.2d 261.
Appellee not being a manufacturer is not under the liability for the alleged defect.
Swift Co. v. Hawkins, 174 Miss. 253, 164 So. 231; Restatement, Secs. 399, 402; Burkhardt v. Armour Co., 115 Conn. 249, 161 A. 385, 90 A.L.R. 1260; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726; Slavin v. Leggett, 114 N.J. Law 421, 177 A. 120; Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108 N.E. 474; Fleetwood v. Swift Co., 27 Ga. App. 502, 108 S.E. 909; Noble v. Sears Roebuck Co., 12 F. Supp. 181; Hercules Powder Co. v. Calcote, 161 Miss. 860, 138 So. 583; Pate Auto Co. v. Westbrook Elevator Co., 142 Miss. 419, 107 So. 552; Huset v. Case Threshing Mch. Co., 120 Fed. 865, 61 L.R.A. 303; Penny v. Morris, 163 So. 124, 173 Miss. 710; Wheeler v. Laurel Bottling Works, 111 Miss. 492, 71 So. 743; Ford Motor Co. v. Myers, 117 So. 362, 161 Miss. 73; Kilcrease v. Motor Co., 149 Miss. 703, 115 So. 193; Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454; Royal Feed Milling Co. v. Thorn, 142 Miss. 92, 107 So. 282; Dulaney v. Jones, 100 Miss. 835, 57 So. 225; Dunagan Whitaker Co. v. Montgomery, 117 Miss. 666, 78 So. 580; Rainwater v. Bottling Co., 131 Miss. 315, 95 So. 444; Masonite Corp. v. Dennis, 168 So. 613; Masonite Corp. v. Hall, 170 Miss. 158, 154 So. 295.
Appellant wholly failed to prove his case.
Masonite Corp. v. Dennis, 168 So. 613; DuPont, etc., Powder Co. v. Duboise, 236 Fed. 690; Patton v. T. P. Ry. Co., 179 U.S. 658, 45 L.Ed. 361.
Appellant, plaintiff in the court below, brought suit against appellee, defendant there, for alleged injuries caused by contact of appellant's hands with commercial fertilizer sold him by the appellee.
Appellant, in his declaration, alleged that appellee was engaged in the manufacture, packing, sale, and distribution of commercial fertilizers, and had been so engaged for many years in Mississippi and adjoining states; that appellant purchased fertilizer from one of appellee's agents in March, 1936, in the town of Magee, in Simpson county, Miss., which was manufactured, sacked or packed, labeled, branded, and tagged by appellee, and on said tags was printed the following: "100 lbs High Grade Sulphate of Ammonia, Guaranteed Analysis, Nitrogen 20 per cent. Sold by Virginia-Carolina Chemical Corporation, Jackson, Mississippi." It was further alleged in the declaration that about the 9th day of March, 1936, appellant opened a sack of this fertilizer, and noticed that it contained yellow lumps, and that he began crushing these lumps in order to mix it with another type of fertilizer, using his hands for that purpose, and as he squeezed said lumps a yellow fluid ran out of said lumps onto his hands, and that after he had been so engaged for approximately one hour his hands began to itch, sting, and burn to such an extent that he immediately went and washed his hands, and after this appellant did not touch this fertilizer again, but on the following morning his hands had become so swollen, red, and inflamed that he went to a physician to be healed, who dressed his hands; that his middle finger on the left hand at the knuckle, and the forefinger on the right hand around the knuckle, rotted to the bone and became putrid, red, inflamed, and swollen, and that, although he went to several physicians who prescribed for him, this condition grew worse from day to day, all of which was caused by the sulphuric acid in the fertilizer, and that he is yet under treatment of physicians. He further alleged that the direct and proximate cause of his injuries was the willful, gross, and wanton negligence of appellee in the manufacture of the fertilizer, in improperly mixing ammonia with the sulphate acid, and negligently sacking and selling said improperly mixed chemicals. It was further alleged that appellee well knew the general custom of the farmers to handle with their hands commercial fertilizers, or could have anticipated that sulphate of ammonia, as was there sacked, was an inherently dangerous substance, and its failure to give the public notice of its dangerous qualities constituted a violation of its legal duty to the appellant and the general public.
There was filed a motion to remove this cause to the federal court on account of diversity of citizenship, which motion was overruled.
The appellee filed a plea of the general issue, with notice thereunder that it is not now, and has never been, a manufacturer of commercial sulphate; that it is a retailer and obtains its supply in the open market upon a guaranteed analysis of nitrogen content, and that it was not responsible for the injuries of the appellant.
Appellee also filed a special plea stating that it had no part in the manufacture of the fertilizer and that it bought the same upon a guaranteed nitrogen content, and that, so far as they knew, there had not been any injury.
Appellant filed a replication to this special plea, and also to the notice under the plea of the general issue.
On the trial there was not shown any analysis of the fertilizers handled by the appellee, nor was there any proof that the appellee was engaged in the manufacture of fertilizers, or had any knowledge of the alleged dangerous condition, or the preparation of the elements constituting a fertilizer.
The appellant testified in his own behalf, and had the physicians who treated him to also testify as to his injuries, from which there appears to have been a dangerous condition of his fingers, and that he was put to much expense and delay in being restored to a normal condition.
It appeared from the testimony of the appellant and his witnesses that this brand of fertilizer had been handled by farmers for many years, and that no previous injury had been sustained by any of them. The appellant was thirty-eight years old, and had been engaged in farming all his lifetime and had handled this brand of fertilizer, and other brands, for many years without any injury until the one in the case at bar. Appellant introduced a professor of chemistry who testified as to the effect of improperly mixed ingredients contained in this fertilizer sold by the appellee. This chemist did not analyze the fertilizer, or show how it was prepared and how it was produced.
By the plea of the general issue, the appellant was put to the proof of establishing the material allegations in his declaration, and yet he did not prove that the appellee manufactured the fertilizer involved in the case at bar, or that it had any knowledge of its being improperly prepared, or that it was, in fact, dangerous, other than the proof from the injury itself.
The fertilizer was put out by an employee of the appellant, and he testified that he used gloves in so doing, and received no injury.
There is also no proof that the appellee knew how the farmers put out fertilizers.
We think the appellant, having elected to proceed in tort, failed to prove any actionable tort upon the part of the appellee.
A person who buys articles not constituting food, drink or medicine, to be taken internally, cannot hold the seller liable for injury if such articles were bought from a reputable manufacturer or dealer. A distinction must be borne in mind between those substances constituting food, drink or medicine, to be taken internally, and those intended for use on external objects. A manufacturer of fertilizer is not under the same liability as a warrantor as those selling foodstuffs, drink or medicine, to be taken into the body.
We are of the opinion that the appellant's evidence, asuming all it tends to prove, is insufficient to make a case of liability, consequently the circuit judge was correct in granting the peremptory instruction for the appellee.
Affirmed.