
    Dubbs v. Zak Brothers Co.
    (Decided January 12, 1931.)
    
      Messrs. Shuler, Smith & Ungerleider, for plaintiff in error.
    
      Mr. G. J. Bannich, for defendant in error.
   Levine, J.

Error is prosecuted to this court from the judgment of the common pleas court, wherein a demurrer to the second amended petition of the plaintiff, Henry H. Dubbs, was sustained. The petition seeks to recover damages On the ground that defendant in error, Zak Brothers Company, sold to plaintiff in error a pair of- shoes which were defective, in that an interflap in one of the shoes projected downward in the forepart of the shoe, on the inner side thereof, and that the flap rendered the shoes unfit for ordinary wear.

The petition alleges that the shoes were unskillfully manufactured, and that defendant was careless and negligent in failing to reasonably inspect or examine the shoes or to warn plaintiff of the defect.

Plaintiff relies upon the proposition of law, that, where a dealer sells an article to another which is not only not fit for the purpose for which he sells it, but, owing to some defect therein, is dangerous for the use for which it is purchased, and this condition is discoverable by the exercise of reasonable care upon the part of the dealer, who is under the duty of making proper inspection, and he either fails to make the inspection, or negligently makes the same, he is liable to the buyer for injuries resulting to him from the use of the article.

We are cited to the case of Gerkin v. Brown & Sehler Co., 177 Mich., 45, 143 N. W., 48, 53, 48 L. R. A. (N. S.), 224, wherein the court allowed a recovery of damages against defendant for injuries due to the dye on a fur collar rubbing against the neck of plaintiff and poisoning him. We quote from the language of the court in that case: “When the fact is once established and demonstrated by experience that a certain commodity apparently harmless contains concealed dangers, and when distributed to the public through the channels of trade and used for the purposes for which it was made and sold is sure to cause suffering to, and injure the health of, some innocent purchaser, even though the percentage of those injured be not large, a duty arises to and a responsibility rests upon the manufacturer and dealer with knowledge to the extent, at least, of warning the ignorant consumer or user of the existence of the hidden danger. Failing to do so, the dealer, as well as the manufacturer, who has the knowledge and does not impart it, is liable to a subsequent, ignorant purchaser * * * for injuries sustained through such hidden dangers. This is by reason of the duty the dealer owes to the public generally, which includes all whom it may concern, to give notice of any concealed dangers in the commodity in which he traffics, and to exercise a reasonable precaution for the protection of others.”

We are also cited to Garvey v. Namm, 136 App. Div., 815, 121 N. Y. S., 442, wherein the court allowed a recovery for injuries against a dealer in ladies’ garments, in favor of the purchaser, for injuries received by said purchaser while attempting to wash said garment, in which a needle was embedded, it appearing that an inspection of the garment would have revealed the presence of the needle.

There is no dearth of law on that subject, and the propositions stated by counsel for plaintiff in error are correct in an abstract way. We fail to conceive the application of the principle enunciated to the present case. It is quite clear from the recital of the petition itself that the shoes were not defectively manufactured. At most, all that could be claimed is that the particular shoes did not fit the particular customer’s feet. He is, of course, the best judge of whether the shoes fitted him or whether they pinched him. The retail dealer in shoes must rely on the customer’s judgment as to whether the shoes feel comfortable. If, after buying the shoes, the customer finds that the same cause discomfort, there is a simple way out of it, namely, to refuse to wear the shoes.

A different case would be presented if for instance it appeared that, while fitting the shoes purchased from the dealer, the customer’s foot came in contact with a projecting nail, which caused injury. Such a case would be quite similar to the case wherein a needle was permitted to remain in a garment purchased from a dealer, wherein the New York courts allowed a recovery. Nothing of that sort is alleged in the petition.

Giving the petition its most favorable interpretation, it will appear that the essence of the complaint is that the particular shoes did not fit the particular feet of the particular customer. The dealer had a right to assume the purchaser would exercise ordinary judgment, and that, if he found that the shoes caused him discomfort, he would not wear those shoes;. If the customer persists in wearing the shoes and allowing the pinching and discomfort, and the injuries result therefrom, he has himself to blame and none other.

We agree that the judgment of the common pleas court is correct, and the same is therefore affirmed.

Judgment affirmed.

Weygandt, J., concurs.

Vickery, P. J., not participating.  