beings, 18 provender for cattle,14 and in the case of the negligent furnishing of unwholesome food by an innkeeper or restaurant keeper.15 The principle is illustrated by a recent English case, where it appeared that the seller of a tin containing disinfectant powder knew that it was likely to cause danger to a person opening it, unless special care was taken, and the danger was not such as presumably would be known to or appreciated by the buyer, unless warned of it. The court held that, independently of any warranty, there was cast on the seller a duty to warn the buyer of the danger.16 Again, where it appeared in an action against the seller to recover for injuries received from the explosion of a siphon of aerated water that such siphons were likely to explode unless first subjected to an adequate test, and that certain other siphons also charged and sold by the defendant had exploded under circumstances in which like siphons might be expected to be placed before using, it was held that the question of the defendant's negligence must be submitted to the jury, and a dismissal of the complaint without so doing is erroneous.1 17 801. Discovery and Disclosure of Danger Generally. In the absence of any express or implied warranty or fraudulent representation or concealent, which itself implies a scienter, it seems that the liability of the seller to the buyer is predicated on his actual or constructive knowledge of the defect in the article sold rendering it imminently dangerous, and his resulting duty to disclose the same to the buyer; 18 still he may be charged with knowledge of discoverable perils incident to his wares and with the duty of imparting information 13. Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715; Craft v. Parker, etc., Co., 96 Mich. 245, 55 N. W. 812, 21 L.R.A. 139 and note; Neiman v. Channellene Oil, etc., Co., 112 Minn. 11, 127 N. W. 394, 140 A. S. R. 458; Tomlinson v. Armour, 75 N. J. L. 748, 70 Atl. 314, 19 L.R.A. (N.S.) 923 and note. Note: 111 A. S. R. 714. See FOOD, vol. 11, p. 1118 et seq. As to the implied warranty of wholesomeness in case of a sale of provisions for consumption by man, see supra, par. 467 et seq. 15. Merrill v. Hodson, 88 Conn. 314, 91 Atl. 533, Ann. Cas. 1916D 917 and note, L.R.A.1915B 481 and note. See INNKEEPERS, vol. 14, p. 510. 16. Clark v. Army, etc., Co-operative Soc., [1903] 1 K. B. 155, 72 L. J. K. B. 153, 88 L. T. N. S. 1, 19 Times L. Rep. 80, 3 British Rul. Cas. 435. 17. Torgesen v. Schultz, 192 N. Y. 156, 84 N. E. 956, 127 A. S. R. 894, 18 L.R.A. (N.S.) 726. 18. National Cotton Oil Co. V. Young, 74 Ark. 144, 85 S. W. 92, 4 Ann. Cas. 1123, 109 A. S. R. 71; 14. French v. Vining, 102 Mass. Giroux v. Stedman, 145 Mass. 439, 14 132, 3 Am. Rep. 440. See also N. E. 538, 1 A. S. R. 472; Farrell v. National Cotton Oil Co. v. Young, 74 Manhattan Market Co., 198 Mass. 271, Ark. 144, 85 S. W. 92, 109 A. S. R. 71, 4 Ann. Cas. 1123. As to whether there is an implied warranty of wholesomeness in the case of a sale of provender for animals, see supra, par. 469. 84 N. E. 481, 126 A. S. R. 436, 15 Ann. Cas. 1076, 15 L.R.A. (N.S.) 884. As to necessity of a scienter as a basis of a charge of fraud, see supra, par. 635. thereof to buyers.19 If a dealer or merchant, whether he be a wholesale dealer or a retail dealer, or the original buyer of the article, or the person who makes the sale to the consumer, knows that the article is inherently or imminently dangerous in the use for which it is intended, because of its inflammable or explosive qualities, it is his duty to label or mark the package containing the article in such a way as to indicate its dangerous contents.20 While a retailer is not liable for concealed dangers incident to goods manufactured or packed by others, inasmuch as he has no opportunity ordinarily to inform himself thereof, the manufacturer as a rule will be charged with notice of the quality of the article that he himself has made, and cannot excuse himself upon the ground that he did not know its dangerous qualities. There is and should be a difference between the liability of the manufacturer and the liability of the dealer in this class of cases. The manufacturer should be and is held to a higher degree of care than the dealer in putting on the market dangerous compounds, because he knows or should be charged with notice of the quality and contents of the article that he manufactures; and, being the originator of it, should be required to give notice of the danger in its use, if it is dangerous. But the dealer who buys from the manufacturer occupies practically the same position as does the buyer from the dealer, and is not presumed to know the formula by which the article is made, or whether it is inherently dangerous or not.3 802. Articles Manufactured or Packed by Others.-The distinction between the liability of the manufacturer and the liability of the seller consists in this: the seller is under no obligation to test articles manufactured or packed by others for the purpose of discovering latent or hidden dangers. The dealer who purchases and sells an article in 19. Wolcho v. Rosenbluth, 81 Conn. 358, 71 Atl. 566, 21 L.R.A. (N.S.) 571; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440; Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 682, 15 L.R.A. (N.S.) 855; Krahn v. J. L. Owens Co., 125 Minn. 33, 145 N. W. 626, 51 L.R.A.(N.S.) 650; Torgesen v. Schultz, 192 N. Y. 156, 84 N. E. 956, 127 A. S. R. 894, 18 L.R.A.(N.S.) 726; Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S. W. 155, Ann. Cas. 1917B 572, L.R.A.1916B 877 and note. 20. Peaslee-Gaulbert Co. V. McMath, 148 Ky. 265, 146 S. W. 770, Ann. Cas. 1913E 392, 39 L.R.A. (N.S.) 465. 1. See the following paragraph. 148 Ky. 265, 146 S. W. 770, Ann. Cas. 1913E 392, 39 L.R.A. (N.S.) 465; Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 32 A. S. R. 559, 15 L.R.A. 818. See also Wolcho v. Rosenbluth, 81 Conn. 358, 71 Atl. 566, 21 L.R.A. (N.S.) 571; Watson V. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152, 110 A. S. R. 157, 1 L.R.A. (N.S.) 1178; Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 682, 15 L.R.A. (N.S.) 855. 3. Peaslee-Gaulbert Co. v. McMath, 148 Ky. 265, 146 S. W. 770, Ann. Cas. 1913E 392, 39 L.R.A. (N.S.) 465. 4. See the preceding paragraph. 5. Howes v. Rose, 13 Ind. App. 674, 42 N. E. 303, 55 A. S. R. 251; Clement v. Rommeck, 149 Mich. 595, . common and general use in the usual course of trade and business, without knowledge of its dangerous qualities, is not under a duty to exercise ordinary care to discover whether it is dangerous or not. He may take it as he finds it on the market. He is not required to investigate its qualities, or endeavor to ascertain whether it is dangerous for the use intended before he can absolve himself from liability in the event injury results from its use. There are many necessary articles and things in common and general use throughout the country that are dangerous unless used with care, but the dealer who buys and sells them in the open market in the usual and ordinary course of his business, and who makes no representations or concealments, and who does not know that the article is explosive or dangerous in its ordinary use, is not to be made liable merely because some person is injured or killed while handling it. Accordingly it is held that a druggist is not guilty of negligence in selling to customers proprietary medicines in the package and under the label of the proprietor or patentee, without making an analysis of the contents. Similarly it is held that a retail seller of soap is not liable to a consumer for an injury by a needle imbedded in a cake by the manufacturer, where he did not know of its presence, which could not have been ascertained by him in the exercise of ordinary care. And, likewise, it has been held that a wholesale dealer who buys a standard paint dryer in the open market without knowledge that it is explosive or inflammable if used with ordinary care is not bound to ascertain its qualities or warn consumers of possible danger in its use, or liable to one for injury by an explosion when he attempts to transfer it from one receptacle to another by artificial light." 803. Dangers Known or Apparent to Buyer.-The ground of liability is the seller's superior knowledge of the dangerous characteristics of the article sold; 10 and where it appears that the person injured was as fully cognizant of the peril as was the defendant seller or manufacturer there can be no recovery.11 Accordingly in an action to recover 113 N. W. 286, 119 A. S. R. 695, 13 6. Peaslee-Gaulbert Co. v. McMath, 148 Ky. 265, 146 S. W. 770, Ann. Cas. 1913E 392, 39 L.R.A. (N.S.) 465. 7. West v. Emanuel, 198 Pa. St. 180, 47 Atl. 965, 53 L.R.A. 329. 8. Hasbrouck v. Armour, 139 Wis. 357, 121 N. W. 157, 23 L.R.A. (N.S.) 876. 9. Peaslee-Gaulbert Co. v. McMath, 148 Ky. 265, 146 S. W. 770, Ann. Cas. 1913E 392, 39 L.R.A. (N.S.) 465. 10. Berger v. Standard Oil Co., 126 Ky. 155, 103 S. W. 245, 11 L.R.A. (N.S.) 238. See NEGLIGENCE, vol. 20, p. 11 et seq., as to knowledge as an element of negligence generally. 11. Bragdon V. Perkins-Campbell Co., 87 Fed. 109, 58 U. S. App. 91, 30 C. C. A. 567, 66 L.R.A. 924; Gibson v. Torbert, 115 Ia. 163, 88 N. W. 443, 91 A. S. R. 147, 56 L.R.A. 98; Berger v. Standard Oil Co., 126 Ky. 155, 103 S. W. 245, 11 L.R.A. (N.S.) 238; White v. Oakes, 88 Me. 367, 34 Atl. 175, 32 L.R.A. 592; Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 126 A. S. R. 436, 15 Ann. Cas. 1076, 15 L.R.A. (N.S.) 884; O'Neill v. James, 138 Mich. 567, 101 N. W. 828, 110 A. S. R. 321, 5 Ann. for injuries caused to an employee of the purchaser by the explosion of a bottle of champagne cider, where it appeared that the plaintiff knew that the champagne cider, as ordinarily manufactured and sold, was charged with a gas, and there was no evidence from which it might be inferred that the defendant had knowledge that the bottle was improperly charged, and it appeared by the evidence that the apparatus used in charging the bottle was a proper one, it was held to be the duty of the trial court to direct a verdict in favor of the defendant.1o And it has been held that where a photographer sends a messenger to purchase a certain chemical, notice given to the messenger by the seller that the chemical sold him is different from and more dangerous than the one ordered is notice to the photographer.18 Likewise in case of the sale of a dressed chicken by a retail dealer which the buyer purchased after personal inspection, and without reliance on the superior knowledge and selection of a fit one by the seller, it has been held that the fact that the seller, who in fact had no knowledge that it was unfit for food, could have discovered its unwholesome condition by the exercise of reasonable care and diligence does not render him liable on the ground of negligence for injuries suffered by the buyer on account of its unwholesomeness. 14 No liability attaches to a seller for injuries to a buyer for lack of instruction as to the safe method of handling an article called for by and sold to him, where he has reached the age of discretion, and is apparently in possession of his mental faculties, and there is nothing connected with the transaction, or previously known to the seller, indicating that the would-be buyer cannot safely be intrusted with the article.15 As in other cases involving liability for negligence, the contributory negligence of the buyer may preclude his recovery against the seller.16 Ann. Cas. 177, 68 L.R.A. 342. 13. Conrad v. Graham, 54 Wash. 641, 103 Pac. 1122, 132 A. S. R. 1137. Cas. 177, 68 L.R.A. 342; Clement v. Rommeck, 149 Mich. 595, 113 N. W. 286, 119 A. S. R. 695, 13 L.R.A. (N.S.) 382 and note; Wyllie v. Palm- 14. Farrell V. Manhattan Market er, 137 N. Y. 248, 33 N. E. 381, 19 Co., 198 Mass. 271, 84 N. E. 481, L.R.A. 285; Birdsinger v. McCormick 126 A. S. R. 436, 15 Ann. Cas. Harvesting Mach. Co., 183 N. Y. 487, 1076, 15 L.R.A. (N.S.) 884. The 76 N. E. 611, 5 Ann. Cas. 586, 3 court distinguishes such a case from L.R.A. (N.S.) 1047; Liggett, etc., one where a druggist sells poisons Tobacco Co. v. Cannon, 132 Tenn. labeled as a harmless medicine, saying: 419, 178 S. W. 1009, Ann. Cas. 1917A "The ground on which the apothecary 179, L.R.A.1916A 940; Crigger v. is liable is that he deals in poisons. Coca-Cola Bottling Co., 132 Tenn. That is quite different from dealing 545, 179 S. W. 155, Ann. Cas. 1917B in food which may become poisonous. 572, L.R.A.1916B 877 and note. See NEGLIGENCE, vol. 20, pp. 14, 15, as to comparative knowledge in the law of negligence. 12. O'Neill v. James, 138 Mich. 567, 101 N. W. 828, 110 A. S. R. 321, 5 That rule does not, in our opinion, apply to the sale of articles of food.' 15. Gibson v. Torbert, 115 Ia. 163, 88 N. W. 443, 91 A. S. R. 147, 56 L.R.A. 98. 16. Conrad v. Graham, 54 Wash. Seller's Liability to Others than Buyer 804. In General.-It is stated as a rule of law that a manufacturer or seller is not liable to third persons who have no contractual relations with him for negligence in the construction, manufacture, or sale of articles manufactured or sold.17 In one of the earlier cases, which serves very well to illustrate the rule, it appeared that a balance wheel, already made and in hand, having defects which weakened it, was sold by the defendant to a person who bought it for his own use. The defects in the wheel were pointed out to the buyer, and fully understood by him. The wheel was used by the buyer for some years, and was then taken into the possession of the plaintiff's intestate, who used it for his own purposes. While so in use, it flew apart by reason of its original defects, and the plantiff's intestate was killed. The court held that there could be no recovery.18 To this rule, however, the courts have very generally recognized an exception in the case of articles of sale that are "inherently" or "imminently" dangerous. As it ordinarily is stated, an act of negligence of a manufacturer or seller which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third persons who suffer from the negligence regardless of privity of contract. 19 It 641, 103 Pac. 1122, 132 A. S. R. 1137. See NEGLIGENCE, vol. 20, p. 99 et seq., as to the general effect of contributory negligence. 17. Bragdon V. Perkins-Campbell Co., 87 Fed. 109, 58 U. S. App. 91, 30 C. C. A. 567, 66 L.R.A. 924; Huset v. J. I. Case Threshing Mach. Co., 120 Fed. 865, 57 C. C. A. 237, 61 L.R.A. 303; Heindirk v. Louisville Elevator Co., 122 Ky. 675, 92 S. W. 608, 5 L.R.A. (N.S.) 1103; Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 126 A. S. R. 436, 15 Ann. Cas. 1076, 15 L.R.A. (N.S.) 884; Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785, L.R.A.1916D 1006; Heizer v. Kingsland, etc., Mfg. Co., 110 Mo. 605, 19 S. W. 630, 33 A. S. R. 482. 15 L.R.A. 821; Losee v. Clute. 51 N. Y. 494, 10 Am. Rep. 638; McCaffrey v. Mossberg, etc., Mfg. Co., 23 R. I. 381, 50 Atl. 651, 91 A. S. R. 637, 55 L.R.A. 822; Liggett, etc., Tobacco Co. v. Cannon, 132 Tenn. 419, 178 S. W. 1009, Ann. Cas. 1917A 179, L.R.A. 1916A 940; Kerwin v. Chippewa Shoe Mfg. Co., 163 Wis. 428, 157 N. W. 1101, L.R.A.1916E 1188. Notes: 2 L.R.A. (N.S.) 303; 19 L.R.A. (N.S.) 924; 48 L.R.A. (N.S.) 213; 1 Ann. Cas. 756; Ann. Cas. 1914A 877; Ann. Cas. 1915D 853. 18. Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 543. 19. National Sav. Bank v. Ward, 100 U. S. 195, 25 U. S. (L. ed.) 621; Huset v. J. I. Case Threshing Mach. Co., 120 Fed. 865, 57 C. C. A. 237, 61 L.R.A. 303; Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, Ann. Cas. 1913B 689, 37 L.R.A. (N.S.) 560; State v. Fox, 79 Md. 514, 29 Atl. 601, 47 A. S. R. 424 and note, 24 L.R.A. 679; Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 32 A. S. R. 559, 15 L.R.A. 818; Neiman v. Channellene Oil, etc., Co., 112 Minn. 11, 127 N. W. 394, 140 A. S. R. 458; Cunningham v. C. R. Pease House Furnishing Co., 74 N. H. 435, 69 Atl. 120, 124 A. S. R. 979, 20 L.R.A. (N.S.) 236; Coughtry v. Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387; Kuel |