Donald C.
MacPherson, Respondent, v. Buick Motor Company, Appellant
217 N.Y. 382 (1916)
Cardozo, J. The
defendant is a manufacturer of automobiles.
It sold an automobile to a retail dealer. The retail dealer resold to
the plaintiff. While the plaintiff was
in the car, it suddenly collapsed. He
was [*385] thrown out and injured. One of the wheels was made of defective wood,
and its spokes crumbled into fragments.
The wheel was not made by the defendant; it was bought from another
manufacturer. There is evidence, however, that its defects could have been
discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of
the defect and willfully concealed it.
The case, in other words, is not brought within the rule of Kuelling v.
Lean Mfg. Co. (183 N. Y. 78). The charge is one, not of fraud, but of
negligence. The question to be
determined is whether the defendant owed a duty of care and vigilance to any
one but the immediate purchaser.
The foundations of this branch of the law, at least in this state, were
laid in Thomas v.
Thomas v.
These early cases suggest a narrow construction of the rule. Later cases, however, [***9]
evince a more liberal spirit.
First in importance is Devlin v. Smith (89 N. Y. 470). The
defendant, a contractor, built a scaffold for a painter. The painter's servants
were injured. The contractor was held
liable. He knew that the scaffold, if
improperly constructed, was a most dangerous trap. He knew that it was to be used by the
workmen. He was building it for that
very purpose. Building it for their use,
he owed them a duty, irrespective of his contract with their master, to build
it with care.
From Devlin v. Smith we pass over intermediate cases and
turn to the latest case in this court in which Thomas v.
It may be that Devlin v. Smith [***10] and Statler v. Ray Mfg. Co.
have extended the rule of Thomas v.
[*388] Devlin v. Smith was decided in
1882. A year later a very similar case
came before the Court of Appeal in
We hold, then, that the principle of Thomas v.
From this survey of the decisions, there thus emerges a definition of
the duty of a manufacturer which enables us to measure this defendant's
liability. Beyond all question, the
nature of an automobile gives warning of probable danger if its construction is
defective. This [*391]
automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong,
injury was almost certain. It was as
much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by
persons other than the buyer. This was apparent from its size; there were seats
for three persons. It was apparent also
from the fact that the buyer was a dealer in cars, who bought [***17] to resell.
The maker of this car supplied it for the use of purchasers from the
dealer just as plainly as the contractor in Devlin v. Smith
supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom
it might be said with some approach to certainty that by him the car would not
be used. Yet the defendant would have us
say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a
conclusion. Precedents drawn from the
days of travel by stage coach do not fit the conditions of travel to-day. The principle that the danger must be
imminent does not change, but the things subject to the principle do
change. They are whatever the needs of
life in a developing civilization require them to be.
In reaching this conclusion, we do not ignore the decisions to the
contrary in other jurisdictions. It was
held in Cadillac M. C. Co. v. Johnson (221 Fed. Rep. 801) [**1054]
that an automobile is not within the rule of Thomas v.
In
There is nothing anomalous in a rule which imposes upon A, who has
contracted with B, a duty to C and D and others according as he knows or does
not know that the subject-matter of the contract is intended for their
use. We may find an analogy in the law
which measures the liability of landlords.
If A leases to B a tumbledown house he is not liable, in the absence of
fraud, to B's guests who enter it and are injured. This is because B is then under the duty to
repair it, the lessor has the right to suppose that he will fulfill that duty,
and, if he [*394] omits to do so, his guests must look to him
(Bohlen, supra, at p. 276). But
if A leases a building to be used by the lessee at once as a place of public
entertainment, the rule is different.
There injury to persons other than [***22] the lessee is to be foreseen, and foresight
of the conse quences involves the creation of a duty ( Junkermann v.
Tilyou R. Co., 213 N. Y. 404, and cases there cited).
In this view of the defendant's liability there is nothing inconsistent
with the theory of liability on which the case was tried. It is true that the court told the jury that
"an automobile is not an inherently dangerous vehicle." The meaning,
however, is made plain by the context.
The meaning is that danger is not to be expected when the vehicle is
well constructed. The court left it to the jury to say whether the defendant
ought to have foreseen that the car, if negligently constructed, would become
"imminently dangerous." Subtle distinctions are drawn by the
defendant between things [**1055] inherently dangerous and things imminently
dangerous, but the case does not turn upon these verbal niceties. If danger was to be expected as reasonably
certain, there was a duty of vigilance, and this whether you call the danger
inherent or imminent. In varying forms
that thought was put before the jury. We
do not say that the court would not have been justified in ruling as a matter
of law that the car was a [***23]
dangerous thing. If there was any
error, it was none of which the defendant can complain.
We think the defendant was not absolved from a duty of inspection
because it bought the wheels from a reputable manufacturer. It was not merely a
dealer in automobiles. It was a
manufacturer of automobiles. It was responsible
for the finished product. It was not at liberty to put the finished product on
the market without subjecting the component parts to ordinary and simple tests
( Richmond & Danville R. R. Co. v. Elliott, 149 U.S. 266,
272). Under the charge of the trial judge nothing more was [*395]
required of it. The obligation to
inspect must vary with the nature of the thing to be inspected. The more probable the danger, the greater the
need of caution. There is little analogy
between this case and Carlson v. Phoenix Bridge Co. (132 N. Y.
273), where the defendant bought a tool for a servant's use. The making of tools was not the business in
which the master was engaged. Reliance
on the skill of the manufacturer was proper and almost inevitable. But that is not the defendant's
situation. Both by its relation to the
work and by the nature of its business,
[***24] it is charged with a
stricter duty.
Other rulings complained of have been considered, but no error has been
found in them.
The judgment should be affirmed with costs.
Willard
Bartlett, Ch. J. (dissenting). The
plaintiff was injured in consequence of the collapse of a wheel of an
automobile manufactured by the defendant corporation which sold it to a firm of
automobile dealers in Schenectady, who in turn sold the car to the
plaintiff. The wheel was purchased by
the Buick Motor Company, ready made, from the Imperial Wheel Company of Flint,
Michigan, a reputable manufacturer of automobile wheels which had furnished the
defendant with eighty thousand wheels, none of which had proved to be made of
defective wood prior to the accident in the present case. The defendant relied upon the wheel
manufacturer to make all necessary tests as to the strength of the material
therein and made no such tests itself.
The present suit is an action for negligence brought by the subvendee of
the motor car against the manufacturer as the original vendor. The evidence
warranted a finding by the jury that the wheel which collapsed was defective
when it left the hands of the defendant.
[***25] The automobile was being
prudently operated at the time of the accident and was moving at a speed of
only eight miles an hour. There was [*396]
no allegation or proof of any actual knowledge of the defect on the part
of the defendant or any suggestion that any element of fraud or deceit or
misrepresentation entered into the sale.
The theory upon which the case was submitted to the jury by the learned
judge who presided at the trial was that, although an automobile is not an
inherently dangerous vehicle, it may become such if equipped with a weak wheel;
and that if the motor car in question, when it was put upon the market was in
itself inherently dangerous by reason of its being equipped with a weak wheel,
the defendant was chargeable with a knowledge of the defect so far as it might
be discovered by a reasonable inspection and the application of reasonable
tests. This liability, it was further
held, was not limited to the original vendee, but extended to a subvendee like
the plaintiff, who was not a party to the original contract of sale.
I think that these rulings, which have been approved by the Appellate
Division, extend the liability of the vendor of a manufactured article
[***26] further than any case which has
yet received the sanction of this court.
It has heretofore been held in this state that the liability of the
vendor of a manufactured article for negligence arising out of the existence of
defects therein does not extend to strangers injured in consequence of such
defects but is confined to the immediate vendee. The exceptions to this general rule which
have thus far been recognized in New York are cases in which the article sold
was of such a character that danger to life or limb was involved in the ordinary
use thereof; in other words, where the article sold was inherently dangerous.
As has already been pointed out, the learned trial judge instructed the jury
that an automobile is not an inherently dangerous vehicle.
The late Chief Justice Cooley of Michigan, one of the most learned and
accurate of American law writers,
[*397] states the general rule
thus: "The general rule is that a contractor, manufacturer, vendor or furnisher
of an article is not liable to third parties who have no contractual relations
with him for negligence in the construction, manufacture or sale of such
article." (2 Cooley on Torts [3d ed.], 1486.)
The leading English [***27]
authority in support of this rule, to which all the later cases on the
same subject refer, is Winterbottom v. Wright (10 Meeson &
Welsby, 109), which was an action by the driver of a stage coach against a
contractor who had agreed with the postmaster-general to provide and keep the
vehicle in repair for the purpose of conveying the royal mail over a prescribed
route. The [**1056]
coach broke down and upset, injuring the driver, who sought to recover
against the contractor on account of its defective construction. The Court of Exchequer denied him any right
of recovery on the ground that there was no privity of contract between the
parties, the agreement having been made with the postmaster-general alone. "If the plaintiff can sue," said
Lord Abinger, the Chief Baron, "every passenger or even any person passing
along the road, who was injured by the upsetting of the coach, might bring a
similar action. Unless we confine the
operation of such contracts as this to the parties who enter into them, the
most absurd and outrageous consequences, to which I can see no limit, would
ensue."
The doctrine of that decision was recognized as the law of this state
by the leading New [***28] York case of Thomas
v. Winchester (6 N. Y. 397, 408), which, however, involved an
exception to the general rule. There the defendant, who was a dealer in
medicines, sold to a druggist a quantity of belladonna, which is a deadly
poison, negligently labeled as extract of dandelion. The druggist in good faith used the poison in
filling a prescription calling for the harmless dandelion extract and the
plaintiff for whom the prescription was put up was poisoned by the [*398]
belladonna. This court held that
the original vendor was liable for the injuries suffered by the patient. Chief Judge Ruggles, who delivered the
opinion of the court, distinguished between an act of negligence imminently
dangerous to the lives of others and one that is not so, saying: "If A.
build a wagon and sell it to B., who sells it to C. and C. hires it to D., who
in consequence of the gross negligence of A. in building the wagon is
overturned and injured, D. cannot recover damages against A., the builder. A.'s obligation to build the wagon
faithfully, arises solely out of his contract with B. The public have nothing to do with it. * * * So, for the same reason, if a horse be
defectively shod [***29] by a smith, and
a person hiring the horse from the owner is thrown and injured in consequence
of the smith's negligence in shoeing; the smith is not liable for the
injury."
In Torgeson v. Schultz (192 N. Y. 156, 159) the defendant
was the vendor of bottles of aerated water which were charged under high
pressure and likely to explode unless used with precaution when exposed to
sudden changes of temperature. The
plaintiff, who was a servant of the purchaser, was injured by the explosion of
one of these bottles. There was evidence
tending to show that it had not been properly tested in order to insure users
against such accidents. We held that the
defendant corporation was liable notwithstanding the absence of any contract
relation between it and the plaintiff "under the doctrine of Thomas v.
Winchester (supra), and similar cases based upon the duty of the
vendor of an article dangerous in its nature, or likely to become so in the
course of the ordinary usage to be contemplated by the vendor, either to
exercise due care to warn users of the danger or to take reasonable care to
prevent the article sold from proving dangerous when subjected only to
customary usage." [***30] The character of the exception to the general
rule limiting liability for negligence to the original parties to the contract
of sale, was still more clearly stated by Judge
[*399] Hiscock, writing for the
court in Statler v. Ray Manufacturing Co. (195 N. Y. 478, 482),
where he said that "in the case of an article of an inherently dangerous
nature, a manufacturer may become liable for a negligent construction which,
when added to the inherent character of the appliance, makes it imminently
dangerous, and causes or contributes to a resulting injury not necessarily
incident to the use of such an article if properly constructed, but naturally
following from a defective construction." In that case the injuries were
inflicted by the explosion of a battery of steam-driven coffee urns,
constituting an appliance liable to become dangerous in the course of ordinary
usage.
The case of Devlin v. Smith (89 N. Y. 470) is cited as an
authority in conflict with the view that the liability of the manufacturer and
vendor extends to third parties only when the article manufactured and sold is
inherently dangerous. In that case the builder of a scaffold ninety feet high
which was [***31] erected for the
purpose of enabling painters to stand upon it, was held to be liable to the
administratrix of a painter who fell therefrom and was killed, being at the
time in the employ of the person for whom the scaffold was built. It is said that the scaffold if properly
constructed was not inherently dangerous; and hence that this decision affirms
the existence of liability in the case of an article not dangerous in itself
but made so only in consequence of negligent construction. Whatever logical force there may be in this
view it seems to me clear from the language of Judge Rapallo, who wrote the
opinion of the court, that the scaffold was deemed to be an inherently
dangerous structure; and that the case was decided as it was because the court
entertained that view. Otherwise he
would hardly have said, as he did, that the circumstances seemed to bring the
case fairly within the principle of Thomas v. Winchester.
I do not see how we can uphold the judgment in the [*400]
present case without overruling what has been so often said by this
court and other courts of like authority in reference to the absence of any
liability for negligence on the part of the original [***32] vendor of an ordinary carriage to any one
except his immediate vendee. The absence
of such liability was the very point actually decided in the English case of Winterbottom
v. Wright (supra), and the illustration quoted from the
opinion of Chief Judge Ruggles in Thomas v. Winchester (supra)
assumes that the law on the subject was so plain that the statement would be
accepted almost as a matter of course.
In the case at bar the defective wheel on an automobile moving only
eight [**1057] miles an hour was not any more dangerous to
the occupants of the car than a similarly defective wheel would be to the
occupants of a carriage drawn by a horse at the same speed; and yet unless the
courts have been all wrong on this question up to the present time there would
be no liability to strangers to the original sale in the case of the
horse-drawn carriage.
The rule upon which, in my judgment, the determination of this case
depends, and the recognized exceptions thereto, were discussed by Circuit Judge
Sanborn of the United States Circuit Court of Appeals in the Eighth Circuit, in
Huset v. J. I. Case Threshing Machine Co. (120 Fed. Rep. 865) in
an opinion [***33] which reviews all the
leading American and English decisions on the subject up to the time when it
was rendered (1903). I have already
discussed the leading New York cases, but as to the rest I feel that I can add
nothing to the learning of that opinion or the cogency of its reasoning. I have examined the cases to which Judge
Sanborn refers, but if I were to discuss them at length I should be forced
merely to paraphrase his language, as a study of the authorities he cites has
led me to the same conclusion; and the repetition of what has already been so
well said would contribute nothing to the advantage of the bench, the bar or
the individual litigants whose case is before us.
[*401] A few cases decided since his opinion was
written, however, may be noticed. In Earl
v. Lubbock (L. R. 1905 [1 K. B. Div.] 253) the Court of Appeal in
1904 considered and approved the propositions of law laid down by the Court of
Exchequer in Winterbottom v. Wright (supra), declaring
that the decision in that case, since the year 1842, had stood the test of
repeated discussion. The master of the
rolls approved the principles laid down by Lord Abinger as based upon sound
reasoning; [***34] and all the members of the court agreed that
his decision was a controlling authority which must be followed. That the Federal courts still adhere to the
general rule, as I have stated it, appears by the decision of the Circuit Court
of Appeals in the Second Circuit, in March, 1915, in the case of Cadillac
Motor Car Co. v. Johnson (221 Fed. Rep. 801). That case, like this,
was an action by a subvendee against a manufacturer of automobiles for negligence
in failing to discover that one of its wheels was defective, the court holding
that such an action could not be maintained.
It is true there was a dissenting opinion in that case, but it was based
chiefly upon the proposition that rules applicable to stage coaches are archaic
when applied to automobiles and that if the law did not afford a remedy to
strangers to the contract the law should be changed. It this be true, the change should be
effected by the legislature and not by the courts. A perusal of the opinion in that case and in
the Huset case will disclose how uniformly the courts throughout this
country have adhered to the rule and how consistently they have refused to
broaden the scope of the exceptions. I
think [***35] we should adhere to it in
the case at bar and, therefore, I vote for a reversal of this judgment.