
    WOOD v. E. & H. T. ANTHONY & CO.
    (Supreme Court, Appellate Division, Second Department.
    January 9, 1903.)
    1. Breach op Warranty—Special Use—Damages.
    Where powder for use in a flash lamp was bought in reliance on warranties of the manufacturer and seller that it contained no explosive compound and was safe for use in ordinary flash lamps, damages for injuries received by the buyer from the explosion of the powder in an ordinary flash lamp were recoverable in an action for a breach of warranty,
    2. Same—Tort—Complaint—Amendment.
    A complaint seeking to recover such damages for the breach of warranty sounded in tort, and therefore an amendment thereto, in which the negligence of the manufacturer was also alleged, was not objectionable as converting an action of contract into one of tort.
    3. Same—Scienter.
    A scienter need not be alleged or proven in an action to recover such damages for the breach of warranty.
    
      Appeal from trial term, Orange county.
    Action by Revilo C. Wood, as guardian ad litem of Harry C. Wood, a minor, against E. & H. T. Anthony & Co. From an order allowing plaintiff to serve an amended complaint, defendant appeals. Affirmed. ' •
    See 78 N. Y. Supp. 1143.
    Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and HIRSCHBERG, JJ.
    Samuel H. Evins (Noah C. Rogers, on the brief), for appellant.
    Caleb Birch, Jr., for respondent.
   HIRSCHBERG, J.

The action was commenced on May 13, 1901, and was tried in November of that year. The complaint alleged in substance that the defendant, a domestic corporation, manufactured and sold in packages a certain' powder called “Anthony’s Pure Metallic Magnesium,” which it warranted to buyers and users to be entirely free from explosive compounds, and .to be safe for use with any of the ordinary flash lamps; that the plaintiff’s ward, in reliance upon the warranty, purchased a package of the powder from one of the defendant’s sales agents; that the warranty was false; „ and that, while the. minor was using the powder in an ordinary flash lamp, it exploded because of the presence of explosive compounds, inflicting upon him severe personal injuries. The judgment de-" manded was for damages for the injuries so inflicted. A verdict was rendered in favor of the plaintiff, but it was set aside by the trial court as inadequate. A second trial was had in April, 1902, but, before any evidence was given, the plaintiff’s counsel was informed - by the court that no recovery could be had for personal injuries in an action for breach of warranty on contract, and in effect that the plaintiff could not recover the damages alleged under the complaint as it was then framed, whereupon, as the plaintiff states in the affidavit on which his present motion is based, “in view of the fact that plaintiff’s sole claim is for personal injuries because of a breach of such warranty (in the complaint as it now stands),” his counsel obtained leave to withdraw a juror, and, having subsequently applied at special term for an order permitting an amendment to the complaint, alleging, in addition to the facts constituting the warranty and its breach, negligence on the defendant’s part in the manufacture and sale of the powder under the alleged false representations of its nonexplosive, character, obtained the order allowing such amendment, which is now the subject of review.

On the part of the appellant it is claimed that the amendment should not have been allowed because the original complaint did not state a good cause of action. I am inclined to the opinion that the complaint did state a good cause of action, and that the damages asserted were recoverable under it. It is undoubtedly true that the measure of damages for breach of warranty on the sale of personal property is generally the difference in value of the article sold as it was and as it was represented to be, but in exceptional cases other damages of a special nature are within the contemplation of the parties, and, “where an article is warranted fit for a particular purpose, the purchaser can recover the damages caused by an attempt to use it for that purpose.” 2 Sedg. Meas. Dam. § 766. The same principle applies to a warranty that an article may be used without danger of injury to the person arising from the presence of dangerous substances. In this case, the personal danger to be apprehended by prospective purchasers from the use of an explosive powder in a lamp was the thing which the defendant anticipated, and as an inducement to a sale of the compound, by allaying such apprehension, the assurance of its harmlessness was given. Whether a remote purchaser could recover for the breach of the warranty need not be considered, inasmuch as the complaint alleged that the purchase in this instance was made from the defendant through its sales agent.

The principle under consideration, has been often applied in adjudicated cases. In Langridge v. Levy, 2 Mees. & W. 519; Id., 4 Mees. & W. 337,—the defendant sold a gun to the plaintiff’s father for the use of himself and his son, representing it to be manufactured by a certain person and to be well made. The representations were untrue. The gun burst in the hands of the plaintiff, and the defendant was held liable for the personal injury thereby occasioned. In Page v. Ford, 12 Ind. 46, a boiler exploded which had been warranted sound, and the damages allowed included the injury to property damaged or destroyed by the explosion. And in Sinker v. Kidder, 123 Ind. 528, 24 N. E. 341, under similar circumstances, the damages included the rental value of a mill in which the explosion occurred during the time it was idle in consequence thereof. In Passinger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753, the principle was applied by the court of appeals to an action for breach of warranty on a sale of seed, and the rule was enforced that where there is a special warranty and a breach, the plaintiff is entitled to such damages as were the natural and necessary consequences of the breach. See, also, White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; Beeman v. Banta, 118 N. Y. 538, 23 N. E. 887, 16 Am. St. Rep. 779. In Milburn v. Belloni, 39 N. Y. 53, 100 Am. Dec. 403, it was held that a sale of coal dust, to be used in the manufacture of brick, with a warranty that it was free from soft coal dust, accompanied with the information that, if mixed with soft coal dust, it would destroy the brick proposed to be manufactured, rendered the seller liable for the injury to the brick sought to be manufactured, by the presence of such soft coal dust. In Bruce v. Horse Co., 47 App. Div. 273, 62 N. Y. Supp. 96, this court applied the principle to an action for breach of warranty in the sale of a horse, and held that where there was a warranty that the horse was “sound, kind, and true, and gentle and quiet in harness, and suitable for use by plaintiff in his profession as a physician, to drive in harness as a carriage horse,” the purchaser was entitled to recover for both injury to his person and to his property occasioned by the kicking, bolting, and running arvay of the animal.

The appellant further insists that the amendment has converted an action on contract into one of tort. It may be that the complaint as now framed may be construed either as for breach of warranty or for negligence, and that the plaintiff may be required at a proper time and in suitable proceedings to make his election. It certainly doés not purport to state or to unite two causes of action. The original complaint sounded in tort, and the damages sought were for the wrong done to the plaintiff by the sale and warranty. In discussing the question of damages recoverable in such actions, it is said in Sedgwick on Elements of Damages, at page 251:

“An action upon a warranty may be an ordinary action of contract, or it may be an action of tort. The former case arises whenever the suit is upon an express understanding as to quality, and it is evident that in the cases just considered the underlying idea is that the plaintiff shall recover the benefit of a broken contract. But an action on a warranty may, and quite as often does, sound in tort, as in case of false representations as to quality, etc., made by the seller, with a view to induce the purchaser to buy. Here the tort consists in the falsehood followed by damage.”

In such an action a scienter need not be alleged or proved (Shippen v. Bowen, 122 U. S. 575, 7 Sup. Ct. 1283, 30 L., Ed. 1172), and this must be especially true' of a case where the injurious article falsely warranted has been manufactured by the vender. The gist of the claim in such a case is the injury resulting from the personal act of the defendant, equally whether such act was occasioned by design or by culpable negligence.

What has been said practically disposes of all the questions raised by the appellant, except as to the terms upon which the motion was granted. The terms imposed upon the respondent were certainly much less than what should generally be required on the amendment of a pleading after trial, but in view of the ruling of the court at the second trial and the peculiar circumstances under which the motion was accordingly made, and especially in view of the opinion herein expressed as to the right of the plaintiff to prove his damages under the original complaint, they cannot be considered as unjust.

I think, under the circumstances, that the proper disposition of the appeal would be to affirm the order, without costs.

Order affirmed, with $10 costs and disbursements. All concur.  