frequently has been held that one who furnishes or sells a dangerous medicine or drug to a druggist for the purpose of having the latter sell it to his customers and others is, on the latter's making such sales, liable to the same extent as if he had sold it himself without the intervention or aid of such druggist. The rule has been well stated as follows: "One who sells and delivers to another an article intrinsically dangerous to human life or health, such as a poison, an explosive, or the like, knowing it to be such, without notice to the purchaser that it is intrinsically dangerous, is responsible to any person who is, without fault on his part, injured thereby." 2

805. Meaning of Phrase "Imminently Dangerous."-The words "imminently dangerous" as used by the courts in this class of cases do not mean that the article must be at all times and under all conditions imminently dangerous such as poisons, explosives or the like. This would be entirely too narrow a construction to place upon the meaning of these words as used in the opinions, and the disposition of the cases in which they are used shows that they were used in a broad and liberal sense. Many articles are very simple and safe in their use and construction, and under no conditions could they be regarded as dangerous in their use. On the other hand, there are a great many things in common use that are dangerous, unless they are safely and properly constructed. And the recent cases as a general rule, though the authorities are not in entire accord, recognize that an automobile if defectively constructed may fall within the rule. It is also generally established that the ultimate consumer may sue the manufacturer of foodstuffs where dangerous and poisonous latent ingredients have caused sickness. And as regards the liability of the manufac

ling v. Roderick Lean Mfg. Co., 183 N. Y. 78, 75 N. E. 1098, 111 A. S. R. 691, 5 Ann. Cas. 124, 2 L.R.A. (N.S.) 303 and note; Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S. W. 155, Ann. Cas. 1917B 572 and note, L.R.A.1916B 877; Weiser v. Holzman, 33 Wash. 87, 73 Pac. 797, 99 A. S. R. 932; Peters v. Johnson, 50 W. Va. 644, 41 S. E. 190, 88 A. S. R. 909, 57 L.R.A. 428.

Notes: 85 A. S. R. 375; 48 L.R.A. (N.S.) 216; 1 Ann. Cas. 756.

1. Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 20 A. S. R. 324, 5 L.R.A. 612; Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350, 4 A. S. R. 548; Peters v. Johnson, 50 W. Va. 644, 41 R. C. L. Vol. XXIV.-33.

513

S. E. 190, 88 A. S. R. 909, 57 L.R.A. 428.

Note: 111 A. S. R. 713.

2. Weiser v. Holzman, 33 Wash. 87, 73 Pac. 797, 99 A. S. R. 932.

3. Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, Ann. Cas. 1913B 689, 37 L.R.A. (N.S.) 560.

4. Cadillac Motor Car Co. v. Johnson, 221 Fed. 801, 137 C. C. A. 279, Ann. Cas. 1917E 581 and note, L.R.A. 1915E 287 and note; Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, Ann. Cas. 1913B 689 and note, 37 L.R.A. (N.S.) 560 and note; MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, Ann. Cas. 1916C 440, L.R.A.1916F 696.

Notes: 48 L.R.A. (N.S.) 216; Ann. Cas. 1917E 584.

5. Parks v. C. C. Yost Pie Co., 93

turer the principle is not to be restricted, it has been held, to liability for personal injuries suffered by an ultimate consumer or user, but has been extended, in case of the negligence of the manufacturer or packer of deleterious foods or the like, to injuries suffered by a remote purchaser such as a grocer or restaurateur in respect to his business, due to his resale of such products."

806. Basis of Liability Generally.-The liability of one who sells an article imminently dangerous, to a person not in privity of contract with him, is founded in tort and not in contract. And as is shown heretofore a warranty by the seller of the quality or condition. of the subject matter of sale does not inure to the benefit of third persons. The foundation of liability here, as elsewhere, is the superior knowledge of the manufacturer or seller as to the peril embodied in the article sold. 10 And when it is said that a manufacturer or seller of an article is not liable to a remote transferee thereof, the implication is that he had no superior knowledge and owed no duty of information to such transferee. It has been observed that the real ground of liability of the seller to an ultimate consumer is, more properly speaking, a duty one owes to the public not to put out articles to be sold upon the markets for use injurious in their nature, of which the

11

Kan. 334, 144 Pac. 202, L.R.A.1915C 179; Meshbesher v. Channellene Oil, etc., Mfg. Co., 107 Minn. 104, 119 N. W. 428, 131 A. S. R. 441; Tomlinson v. Armour, 75 N. J. L. 748, 70 Atl. 314, 19 L.R.A.(N.S.) 923 and note; Catani v. Swift, 251 Pa. St. 52, 95 Atl. 931, L.R.A.1917B 1272; Mazetti v. Armour, 75 Wash. 622, 135 Pac. 633, Ann. Cas. 1915C 140, 48 L.R.A. (N.S.) 213 and note.

Notes: 16 Ann. Cas. 492; Ann. Cas. 1913B 1116; Ann. Cas. 1915C 144.

See FooD, vol. 11, p. 1123.

As to the implied warranty of wholesomeness in the sale of foods for home consumption, see supra, par. 467 et seq.

6. Neiman v. Channellene Oil, etc., Mfg. Co., 11 Minn. 11, 127 N. W. 394, 140 A. 3. R. 458; Mazetti v. Armour, 75 Wash. 622, 135 Pac. 633, Ann. Cas. 1915C 140, 48 L.R.A. (N.S.)

213.

Note: Ann. Cas. 1913B 1116.

7. Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, Ann. Cas. 1913B 689, 37 L.R.A. (N.S.) 560. 8. See supra, par. 431 et seq.

9. See NEGLIGENCE, vol. 20, p. 14, as to comparative knowledge as affecting the law of negligence.

10. Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 52 A. S. R. 146, 31 L.R.A. 220; Woodward v. Miller, 119 Ga. 618, 46 S. E. 847, 100 A. S. R. 188, 64 L.R.A. 932; Skinn v. Reutter, 135 Mich. 57, 97 N. W. 152, 106 A. S. R. 384, 63 L.R.A. 743; Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 32 A. S. R. 559, 15 L.R.A. 818; Krahn v. J. L. Owens Co., 125 Minn. 333, 145 N. W. 626, 51 L.R.A. (N.S.) 650; Heizer v. Kingsland, etc., Mfg. Co., 110 Mo. 605, 19 S. W. 630, 33 A. S. R. 482, 15 L.R.A. 821; 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.

Note: 19 L.R.A. (N.S.) 926.

11. Heindirk v. Louisville Elevator Co., 122 Ky. 675, 92 S. W. 608, 5 L.R.A. (N.S.) 1103; O'Neill v. James, 138 Mich. 567, 101 N. W. 828, 110 A. S. R. 321, 5 Ann. Cas. 177, 68 L.R.A. 342; Heizer v. Kingsland, etc., Mfg. Co., 110 Mo. 605, 19 S. W. 630, 33 A. S. R. 482, 15 L.R.A. 821.

general public have not means of inspection to protect themselves.12 Thus if the owner of hogs, knowing them to be afflicted with a dangerous infectious disease, sells them to live stock dealers who, in ignorance of the condition of the animals, sell them to a third person who, without negligence, puts them with other hogs, the original seller is liable to the last buyer, not only for the value of the hogs purchased, but for the value of those which contract the disease and die.18 Again, one who manufactures a patent or proprietary medicine, concealing its contents from the public, and selling it to druggists, to be by them offered for sale to the public, in bottles containing directions for its use, specifying the quantity in which it should be taken, is answerable to one who purchases it of the druggist and is injured by taking it in the quantities specified in the accompanying directions, if it appears that the medicine contained a drug of which the taker was not aware, and which, in his condition, if the directions given were followed, would probably produce the injurious consequences by him suffered.14

807. Seller's Knowledge of Danger or Defect.-The necessity of bringing home to the manufacturer or seller, as a prerequisite to his liability to third persons, knowledge of the dangerous condition of the article sold depends, it seems, on the character of the article sold, and a distinction is made between cases (1) when he is negligent in the manufacture and sale of an article intrinsically or inherently dangerous to health, limb, or life; (2) when he sells an article for general use, which he knows to be imminently dangerous and unsafe, and conceals from the buyer defects in its construction, from which injury might reasonably be expected to happen to those using it. Under the first class fall articles such as poisons or dangerous drugs, that are labeled as containing innocent or harmless ingredients; and in this class of cases it is not essential to a recovery by the injured party against the maker that knowledge of his mistake or negligence should be brought home to him. His liability rests upon the broader ground that persons dealing in articles intrinsically and inherently dangerous must use a high degree of care in putting them on the market, for the protection of the health and lives of those who may naturally and reasonably be expected to use them. And for his negligence or carelessness alone, without any fraud, deceit, or eoncealment, he may be held accountable in damages to any person injured by their use.15 But in the other class of cases, where the article itself

12. Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S. W. 155, Ann. Cas. 1917B 572, L.R.A.1916B 877. See also Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, Ann. Cas. 1913B 689, 37 L.R.A. (N.S.) 560. 13. Skinn v. Reutter, 135 Mich. 57, 97 N. W. 152, 106 A. S. R. 384, 63

L.R.A. 743.

14. Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 20 A. S. R. 324, 5 L.R.A. 612.

15. Olds Motor Works v. Shaffer, 145 Ky. 166, 140 S. W. 1047, Ann. Cas. 1913B 689, 37 L.R.A. (N.S.) 560. See DRUGS AND DRUGGISTS, vol. 9, p. 696.

is not inherently or intrinsically dangerous to health or life, a third party, seeking to hold the maker liable for injuries suffered by him in the use of the article, must show that the maker knew it was unsafe and dangerous, and either concealed the defects or represented that it was sound and safe, and the mere fact that he may have been guilty of the want of reasonable care in the manufacture will not render him liable.16 Thus it is held that a manufacturer of soap who sells only to dealers is not liable in tort for injury to a consumer who purchased from a dealer by a needle which was in some way imbedded in a cake of soap without his knowledge, which cake was sold with others in the usual way to the dealer; and it is immaterial that purity of the product was guaranteed.17 So, as in case of liability directly to the buyer, 18 a seller of articles manufactured or packed by others is not held liable for injuries to third persons if he had no notice actual or constructive of the dangerous character of the articles.19 Still even in the class of cases where the article is rendered dangerous solely by reason of a defect in manufacture, direct notice of the defects complained of need not be brought home to the manufacturer or maker; otherwise it would defeat in almost every instance the meritorious rule of law charging the maker with liability, as it is seldom that evidence could be obtained tending to show that he had actual notice, and the maker will not be permitted to shield himself from responsibility upon the theory that he did not have notice of the defect in the article, when the evidence shows that it was so plain that notice of it could not have escaped his attention.20 To illustrate the principle: if a painter using a stepladder is injured by its breaking because of its being made of poor, crossgrained, and decayed lumber, he may recover damages of its manufacturer, if the latter knew, or ought to have known, of its condition, and that it was dangerous to one using it, and sold it to the plaintiff's employer, or to a retail dealer with knowledge that the latter would sell it. So it has been held that the manufacturer of an automobile who attaches to it a rumble seat so insecurely that it is

16. Cadillac Motor Car Co. v. Johnson, 221 Fed. 801, 137 C. C. A. 279, Ann. Cas. 1917E 581, L.R.A.1915E 287; Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, Ann. Cas. 1913B 689, 37 L.R.A. (N.S.) 560; Hasbrouck v. Armour, 139 Wis. 357, 121 N. W. 157, 23 L.R.A. (N.S.) 876. Note: 48 L.R.A.(N.S.) 214.

17. Hasbrouck v. Armour, 139 Wis. 357, 121 N. W. 157, 23 L.R.A. (N.S.) 876.

18. See supra, par. 802.

19. Peaslee-Gaulbert Co. V.

Math, 148 Ky. 265, 146 S. W. 770, Ann. Cas. 1913E 392, 39 L.R.A. (N.S.) 465.

Note: 48 L.R.A. (N.S.) 214.

20. Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, Ann. Cas. 1913B 689, 37 L.R.A. (N.S.) 560. See also Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 32 A. S. R. 559, 15 L.R.A. 818.

Note: 48 L.R.A. (N.S.) 216.

1. Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 32 A. S. R. Mc- 559, 15 L.R.A. 818.

likely to break off when occupied by a passenger is liable to a stranger for injuries caused by its so doing, if he knew or was charged with notice that the seat was imminently dangerous, and concealed that fact from the buyer. And the same has been held true as regards the liability of a manufacturer of an automobile to third persons where he was negligent in the use of a defective wheel, the defect being discoverable by a proper inspection, though he purchased the wheel from a reputable manufacturer. On the other hand where a buyer of an automobile from a retail dealer was injured by the breaking of a wheel, the wood of which was dead or "dozy," and it appeared that the manufacturer purchased the wheels for its cars from third persons, it was held that the manufacturer was not liable to such buyer, where he did not in fact know of the defective condition of the wheel, though he could have discovered its condition if he had used care in its inspection. It has also been held in a recent case that chewing tobacco is not to be classed as a food and that therefore the manufacturer is not liable for injury to a consumer, who purchases through a retailer, because of the incorporation into the product of a poisonous insect, if he had no knowledge or reasonable means of knowledge from anything brought to his attention of its existence.

808. Misrepresentation or Concealment of Danger.-If a tradesman sells or furnishes an article, representing it to be safe for the uses it is designed to serve, when he knows it to be dangerous because of concealed defects, he commits a wrong, independent of his contract, and renders himself liable to another person, without notice of such defects, for any injury which may be reasonably contemplated as likely to result, and which does in fact result, therefrom to that person, or to any other without notice. Accordingly it has been held that although a folding bed is not within the rule as to dangerous instrumentalities, this fact does not relieve the seller from liability for injury to a third person, if such seller, in making the sale, represents the bed to be safe, knowing it to be really unsafe for the pur

2. Olds Motor Works v. Shaffer, Ann. Cas. 1917A 179, L.R.A.1916A 145 Ky. 616, 140 S. W. 1047, Ann. 940. Cas. 1913B 689, 37 L.R.A. (N.S.) 560.

3. MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, Ann. Cas. 1916C 440, L.R.A.1916F 696.

4. Cadillac Motor Car Co. v. Johnson, 221 Fed. 801, 137 C. C. A. 279, Ann. Cas. 1917E 581, L.R.A.1915E 287 and note.

5. Liggett, etc., Tobacco Co. v. Cannon, 132 Tenn. 419, 178 S. W. 1009,

6. Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 52 A. S. R. 146, 31 L.R.A. 220; 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; Peterson v. Standard Oil Co., 55 Ore. 511, 106 Pac. 337, Ann. Cas. 1912A 625.

Notes: 111 A. S. R. 708; 19 L.R.A. (N.S.) 932; 48 L.R.A. (N.S.) 218.