
    Ellsworth M. Statler, Respondent, v. George A. Ray Manufacturing Company, Appellant.
    Fourth Department,
    March 4, 1908.
    Negligence — injury by explosion of boiler — obligations of manufacturer to general public — contractual relation of parties immaterial — appeal — statement of facts in charge — failure to except.
    A defectively constructed steam boiler is an article imminently dangerous to human life and one who manufactures and sells the same is liable for injuries received by its explosion irrespective of any contractual relation between the parties. In such case the negligence is based upon a failure to perform a duty oWed to all persons in whose presence the boiler is to be used, not upon a duty owed to the purchasers only.
    When there is no exception to the charge of a trial judge stating that certain facts must concur in order to charge a defendant with negligence, the correctness of the charge in that respect is conceded, and on appeal those facts must be regarded as the basis upon which questions of law raised by motions for a nonsuit at the close of the evidence and for a new trial upon the minutes must be determined.
    Kruse, J., and McLennan, P. J., dissented, with opinion.
    Appeal by the defendant, the George A. Bay Manufacturing ■Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of March, 1907, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 8th day of March, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Tabor, for the appellant.
    
      George P. Keating, for the respondent.
   Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought to recover damages fqr personal injuries alleged to have resulted from negligence.

A boiler exploded, scalding and burning the plaintiff. The defendant constructed the boiler and it is sought to make it liable for defects therein which caused the accident.

The defendant denied that the explosion was the result of defective construction, and claimed it was defective operation of the boiler that caused it to explode. It also claimed it was not liable for any defective construction under the rule laid down in Kuelling v. Roderick Lean Mfg. Co. (88 App. Div. 309 ; 183 N. Y. 78).

The case was submitted to the jury and a verdict was rendered for the plaintiff for $6,500. The jury were instructed by the court that the plaintiff could not recover if the accident was the result of a defective operation of the boiler; it must have resulted from its defective construction. The finding must have been, therefore, that defective construction was the cause of the accident. The case was further submitted to the jury upon the assumption that there was no contractual relation between the plaintiff or his company, which was using the boiler, and the defendant; that it "was constructed by the defendant and by it sold to Russell & Watson and by them to the plaintiff’s company ; that it was constructed and furnished for the purpose of being installed and used by the plaintiff’s company in the Inside Inn, at St. Louis, the plaintiff being the president and general manager of his company, and the right to recover, if any existed, was, by the court, made to depend upon a finding-by the jury that the defendant omitted ordinary care and prudence in placing the bottom in the boiler and neglected to properly solder it, and by reason of that defect the boiler became an instrument imminently dangerous to life or limb, and that the boiler was in this condition when it left defendant’s manufactory, and was known by the defendant, or could have been discovered, by the exercise of ordinary diligence in making an inspection, to be in such condition, and that the defendant knew and intended the boiler to be used in the manner it was being used at the time the accident occurred, and such defective condition was unknown to the purchasers or to the plaintiff’s company, the defect being so concealed that it could not be readily discovered by the exercise of ordinary prudence or reasonable diligence, and the accident resulted from such defect.

In one part or another of the. charge all these elements were embodied in, a statement of what facts must concur to authorize a verdict for the plaintiff, so far as defendant’s negligence was concerned. If all these elements were found the jury might render a verdict for plaintiff, otherwise not.

I do not find any exception to these statements, as embodying correctly the facts entitling the plaintiff to recover,' so far as defendant’s negligence was concerned.

The defendant must, therefore, he deemed to have assented to the correctness of the charge in this respect, and any error therein cannot be alleged as a reason for reversal of the judgment and order. There were, however, motions for a nonsuit at the close of plaintiff’s evidence, and the close of the whole' evidence, on the ground among others that no negligence was shown on the part of the defendant, and exceptions were taken to the denial of those motions. There was also a motion for a new trial upon the minutes, upon all the grounds stated in section 999 of the Code of Civil Procedure, which was denied, and from which order an appeal has been taken. These exceptions and appeal from the order very likely raise the question of law whether the plaintiff was entitled to recover by reason of any negligence of the defendant proven in this case, especially in view of the law laid down in Kuelling v. Roderick Lean Mfg. Co. (supra).

For the purposes of this question wre must assume, I think, that upon sufficient evidence the jury found the facts embodied in the statement by the court to the jury, already quoted, and these facts must be regarded as the basis upon which the question of law is to be determined.

The case above referred to is known as the farm roller case. The defect there was in the tongue, and the "facts as to the construction were alleged as follows: It was made of cross-grained black or red oak which was "unfit for that purpose". It had a knot in it and in addition a large knot hole just' in front of' the point at which the evener and whiffletrees were attacliéd. " The "defendant concealed this knot hole with a plug of soft .wood nailed" in, and then the knot, the plug, the hole, the cross grain of the wood, and the kind of wood used were covered up and concealed by the defendant with "putty and paint so that the defects could not be seen by inspection. The tongue was placed in the roller so that the knot and plug were on the underside. The roller was by reason of-these defects dangerous to the life and limbs of any person who should use it, and the defects made the tongue so weak that it broke at the time of the accident, and was the cause "thereof. The complaint charged this construction and sale was intentional,-willful, malicious, negligent and fraudulent. That ease was tried at first as an action for negligence purely, and a verdict rendered for plaintiff. The Appellate Division reversed, and ordered a new trial. Dp on a second trial a nonsuit was granted. The Appellate Division affirmed (94 App. Div. 613), and then the .Court of Appeals reversed, and ordered a new trial again. An opinion was written when the case was first in the Appellate Division, and two opinions were written in the Court of Appeals. There seems to be some disagreement in view of these three opinions as to how the law was left. Six judges sat in the case in the Court of Appeals. Babtlett, J., and Yann, J., both wrrote for reversal. The report states that three other judges concurred, and one other concurred with Babtlett, J., only. . I assume that three judges concur in both opinions. I do not see, however, that it is very material. Both opinions agree that the case was not one for negligence, but for intentional, wrongful, fraudulent concealment of the defects in the tongue of the roller, and as such was maintainable. Whether an action for negligence could be maintained on the facts was not discussed or decided. Babtlett, J., in his opinion, expressly stated that no opinion was expressed as to the liability for negligence in the absence of fraud or deceit. Coming back to the Appellate Division, where the case was considered, by us as one of negligence merely, in the absence of fraud or deceit, we held that it could not be maintained. After an exhaustive examination and discussion of the authorities, Presiding Justice McLennan, writing the opinion, says: “ There ought to be no misunderstanding as to the precise question involved. The cases cited all hold that a recovery by a third party may be had where the latent defect relates to an article, implement or product which in and of itself is imminently dangerous to human life; as was said in Loop v. Litchfield [42 N. Y. 351], poison, gunpowder, a torpedo, spring gun, loaded rifle, etc., are articles which in their nature are calculated to do in j nry to mankind; but as we interpret those decisions they do not hold that such rule applies to implements which in and of themselves are absolutely harmless, but which' are rendered thus dangerous only by reason of a latent defect. * * * We think the Court of Appeals has uniformly sought to maintain • the distinction and to hold that in cases where the article manufactured is in and of itself, independent of the defect, imminently dangerous to human life, a recovery may be had against the contractor or manufacturer by any person injured because of concealed defects in such article, without reference to whether or not privity of contract exists; but that on the other hand, where the article is not in and of itself imminently dangerous, and where the entire danger results because of some latent defect, the manufacturer is not liable to third persons for injuries sustained by reason of such defect,”

As to this exposition of the law, relating to a negligence case purely, we were not reversed by the Court of Appeals, That court held that the action was not one of negligence but for an intentional, wrongful, fraudulent concealment of the defect complained of, and for such a wrong the manufacturer was liable to a third party as to whom no contractual relation with the manufacturer existed. In the present case while the complaint alleged that the defendant, knowing the boiler was defective, unlawfully, wrongfully and wickedly, as well as negligently, installed it, where the accident occurred, and the defect was latent and concealed, yet on the trial 'counsel expressly disclaimed that there was any fraud or deceit, and that was eliminated from the case. As tried, therefore, the case was one for negligence merely, and the right to recover was claimed to rest, not upon any contractual relations between the parties, but. upon the negligence of the defendant in failing to perform a duty which it owed to the public, irrespective of any contract, under a line of cases commencing with Devlin v. Smith (89 N, Y. 470) and followed by Davies v. Pelham Hod Elevating Co. (65 Hun, 573 ; see, also, 76 id. 289; 82 id, 613; affd., 146 N. Y. 363); Kahner v. Otis Elevator Co. (96 App. Div. 174; affd., 183 N. Y. 512); Barrett v. Lake Ontario Beach Imp. Co. (68 App. Div. 601; revd., 174 N. Y. 310); Connors v. Great Northern Elevator Co. (90 App. Div. 311; affd., 180 N. Y. 509) and others.

The Barrett and Connors Cases (supra) passed through our cohrt in this department. Devlin v. Smith (supra) was cited and distinguished in the opinion of this court in Kuelling v. Roderick Lean Mfg. Co. (supra). A well-defined distinction exists between the cases in the above list and Ruelling v. Roderick Lean Mfg. Co. (supra). The roller would be liable to injure but a single person, while the scaffolds and elevators and toboggan slide were erections for the use of the public, or of many persons, and were liable to injure many people.

It is said this case has the distinguishing feature in this respect of the cases in the above list. The boiler was to be, and was, installed in a public place where many people would be present and liable to be injured by an explosion resulting from the defects.

One person was killed and, several- injured by the accident in question. More than this, a steam boiler comes very near belonging to the list of articles spoken of as, imminently dangerous in and of themselves, viz., poison, gunpowder, á torpedo, spring gun, loaded rifle, etc It seems to me the case of Kuelling v. Roderick Lean Mfg. Co is not decisive of the present case, and that a recovery here was propeily allowed upon the theory upon which this case was submitted to the jury. The defectively constructed boiler was an article imminently dangerous to human' life. The natural and necessary effect of the manufacturer’s negligence would be, as it was, a misfortune to many persons not parties to the contract. The negligence was imminently dangerous to human life. The duty of defendant was not one owed to the purchasers alone, but to the public at large in whose presence it was to be and was installed and used. In Connors v. Great Northern Elevator Go. Mr. Justice Spring, in writing the opinion, said : e' When the defendant turned over the steam shovel and its appliances to the Lake Carriers’ Association to be uséd in unloading grain, it knew that the grain was to be taken out by a large number of scoopers. It impliedly invited these men to go into the hold of the freighter with the assurance that it had furnished appliances which rendered the performance of the work reasonably safe so .far as such tackle was concerned. Its obligation to the men who did the work was to furnish fitting appliances. They had a right to assume that this had been done. The defendant to be sure, made its agreement with the Lake Carriers’ Association, and there was no privity of contract between the elevator association and the plaintiff’s intestate, in that he was not in its employ.. The Inability of the defendant is not contractual in its character. (Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310, 314.) It undertook to furnish appliances for a particular work, the negligent performance of which duty, it knew imperiled the lives of many men. Having for an adequate compensation undertaken to furnish this tackle with full knowledge of its use, it assumed a responsibility to those who were injured while it was being operated precisely as intended.”

I think these motions for nonsuit were properly denied. I have thus disposed of the main question in this case, and there remains to be considered only the exceptions taken on the trial. There are many of these. I have examined them with care. Some of them are perhaps well taken. In the course of so lengthy a trial there would naturally be some mistakes made, but I think there are none of sufficient importance to affect defendant’s rights, or to call for a reversal of the judgment or order.

The motion for a new trial was, therefore, properly denied, and the judgment and order should be affirmed.

All concurred, except McLennan, P. J., and Kruse, J., whq dissented in a memorandum by Kruse, J.

Kruse, J. (dissenting):

I agree with Mr. Justice Williams that the Court of Appeals in the case of Kuelling v. Roderick Lean Mfg. Co. (183 N. Y. 78) did not in its reversal of that case declare the law of liability for negligence of a manufacturer of an article to be otherwise than as expounded and declared in the opinion written by the presiding justice when the case was in this court (88 App. Div. 309) and quoted by Mr. Justice Williams in his opinion. I also agree that the ground of liability in the Knelling case, as finally determined by the Court of Appeals, was predicated upon an intentional, wrongful and fraudulent concealment by the manufacturer of the defect in the article manufactured and placed on the market, and bought and used by the injured person, but it seems to me equally clear that under the rule of that case the judgment in this case must be reversed. This is not a case of deceit or of fraudulent concealment of a latent defect. No such question was submitted to the jury. Counsel for the plaintiff explicitly stated on the trial that he did not make any claim of fraud and deceit; that he did not think they could establish that, and the case was submitted to the jury on the ground of negligence.

A careful reading of the opinions of the Court of Appeals in the Knelling case leads me to conclude that it was regarded as essential to sustain a recovery under such circumstances that the injury must have resulted from the defendant’s willful and fraudulent ■ deceit and concealment.

I, therefore, vote for reversal.

McLennan, P. J., concurred.

Judgment and order affirmed, with costs.  