Mr. Justice Pam
delivered the opinion of the court.
While the record does not show the argument advanced by defendant in the court below in support of its motion for a directed verdict, yet it is fair to presume that there, as here, it relied in the main on the contention that even though the jury could, from the facts in evidence, reasonably have concluded that the defendant furnished the car containing the white lead, and further, that it knew the purpose for which the car was to be used, yet inasmuch as plaintiffs were not parties to the contract and there was no privity between plaintiffs and the defendant, the former could not be heard to complain of that fact, notwithstanding it was negligent. Plaintiffs, in their contention, do not claim to have been parties to the contract, nor that there was any privity between themselves and the defendant, but insist that as the defendant knew the purpose for which this car was to be used, there was a duty imposed upon it by law, to furnish a car suitable for the said purpose, and that consequently it was liable for its failure to perform such duty, not only to the person with whom it had contracted to furnish said car, but to any person who might be injured because of its failure to perform that duty; that the failure to perform that duty was an original wrongful act which would naturally, in the ordinary course of events, prove injurious tp some other person or persons, for which it would be liable if there was no intervention by any independent agency contributing to the injury.
There is no controversy between the parties that the plaintiffs could not maintain this action by reason of any contract of carriage. The question at issue is the right of plaintiffs to recover for the original wrongful act of the defendant, independently of contract. The principle of law that an action of tort may lie for a breach of duty imposed by law independently of any contract is abundantly supported by authority. In Cooley on Torts (2nd ed.), p. 76, it is said:
“If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent.”
And again the same author says on page 83:
“There is a maxim that ‘fraud is not purged by circuity, ’ and this is true of any wrongful act.”
This principle of law was also well set forth in the case of Davidson v. Montgomery Ward & Co., 171 Ill. App. 355. There, as in the case at bar, plaintiff was not a party to the contract and it was therefore contended that he could not sue. In the course of a well-considered opinon, many authorities are cited, among which is the case of Cunningham v. C. R. Pease House Furnishing Co., 74 N. H. 435, in reference to which Mr. Justice Baldwin, the writer of the opinion, said (p. 370):
“This was an action which was brought by a daughter to whose mother the representations were made. The plaintiff’s evidence in the case tended to show that certain manufacturers of a stove blacking advertised it in Nashua, stating that it was for sale by the defendants; the plaintiff’s mother saw the advertisement, called at the defendant’s store and asked a clerk if the blacking they were advertising was intended for stovepipes or for stoves. He replied that it was intended for stoves, and said, ‘The warmer the stove, the better it works. ’ She replied, ‘Won’t that be fine; I can black my stove without letting my fire go out. ’ Belying upon the representations that the blacking could be safely used on a hot stove, the mother bought a can. Two days later, the plaintiff, a member of her mother’s family, used some of the blacking on a hot stove and an explosion resulted, causing the injuries complained of. The plaintiff and her mother were blamelessly ignorant of the fact that the blacking contained naphtha. In the opinion the court says: ‘The defendant’s position is like that of one who “puts destructive * * * materials in situations where they are likely to produce mischief.” Ricker v. Freeman, 50 N. H. 420, 432. Such a person must respond in damages to those who are injured because of his acts, if he either knew or ought to have known that the materials were dangerous and that the persons injured might come in contact with them. Hobbs v. Company, ante [74 N. H.] 116; Scott v. Shepherd, 3 Wils. 403; S. C. 2 W. Bl. 892; Cooley on Torts, 78. (Italics ours.)
“ ‘Although the defendants probably did not have the plaintiff in mind when they sold the blacking to her mother, they knew the mother bought it to use on her stove and that other members of the family were likely to use it, consequently the plaintiff can recover, if her mother could have recovered, had she been injured instead of the plaintiff.’ * * *”
Another case cited was that of Thomas v. Winchester, 6 N. Y. 397, wherein a dealer in drugs sold another druggist a jar of belladonna, labeling it “Extract of Dandelion,” from which the second druggist filled a prescription for ‘ ‘ Extract of Dandelion. ’ ’ The patient took the medicine containing the belladonna, and an action by him against the first seller of the deadly drug was sustained. Therefore, in the case at bar, if there were facts in evidence from which the jury might say or might reasonably infer that defendant knew, or in the exercise of ordinary care should have known, that the car in question contained a poisonous substance known as white lead, and furthermore, knew, or. should have known, the purposes for which said car was to be used, then it was its duty, as a matter; of law, to anticipate the consequences that might naturally and properly follow its act in furnishing such a car for the purposes intended, viz., that anyone buying the refuse might feed same to his live stock. If the jury might further infer from the evidence that plaintiffs, sustained injury from said act on the part of the defendant, by which they were damaged, and that said injury was a natural and probable consequence of such act, then under the principle of law above cited, defendant would be liable for the said injury. After a careful review of the evidence, we are of the opinion that the jury might reasonably have inferred from said evidence that defendant had, or in the exercise of reasonable care should have had, knowledge that the car designated by the defendant in which to ship this cattle feed contained a poisonous substance known as white lead, and that when it designated said ear for use by the plaintiffs, it had, or should have had, knowledge of the purposés for which it was intended. Therefore, as already stated, it was its duty, as a matter of law, to anticipate the consequences that might naturally and properly flow from its act in furnishing such car to the consignor for shipment of the cattle feed. "We are further of the opinion that there was evidence from which the jury might reasonably have inferred that the injury sustained by the plaintiffs, for which damages are sought, was the consequence that the defendant should have anticipated would naturally and probably flow from the act complained of, and furthermore, that there was no evidence of the intervention of an independent agency contributing to said injury.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Pam
delivered the opinion of the court.
While the record does not show the argument advanced by defendant in the court below in support of its motion for a directed verdict, yet it is fair to presume that there, as here, it relied in the main on the contention that even though the jury could, from the facts in evidence, reasonably have concluded that the defendant furnished the car containing the white lead, and further, that it knew the purpose for which the car was to be used, yet inasmuch as plaintiffs were not parties to the contract and there was no privity between plaintiffs and the defendant, the former could not be heard to complain of that fact, notwithstanding it was negligent. Plaintiffs, in their contention, do not claim to have been parties to the contract, nor that there was any privity between themselves and the defendant, but insist that as the defendant knew the purpose for which this car was to be used, there was a duty imposed upon it by law, to furnish a car suitable for the said purpose, and that consequently it was liable for its failure to perform such duty, not only to the person with whom it had contracted to furnish said car, but to any person who might be injured because of its failure to perform that duty; that the failure to perform that duty was an original wrongful act which would naturally, in the ordinary course of events, prove injurious tp some other person or persons, for which it would be liable if there was no intervention by any independent agency contributing to the injury.
There is no controversy between the parties that the plaintiffs could not maintain this action by reason of any contract of carriage. The question at issue is the right of plaintiffs to recover for the original wrongful act of the defendant, independently of contract. The principle of law that an action of tort may lie for a breach of duty imposed by law independently of any contract is abundantly supported by authority. In Cooley on Torts (2nd ed.), p. 76, it is said:
“If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent.”
And again the same author says on page 83:
“There is a maxim that ‘fraud is not purged by circuity, ’ and this is true of any wrongful act.”
This principle of law was also well set forth in the case of Davidson v. Montgomery Ward & Co., 171 Ill. App. 355. There, as in the case at bar, plaintiff was not a party to the contract and it was therefore contended that he could not sue. In the course of a well-considered opinon, many authorities are cited, among which is the case of Cunningham v. C. R. Pease House Furnishing Co., 74 N. H. 435, in reference to which Mr. Justice Baldwin, the writer of the opinion, said (p. 370):
“This was an action which was brought by a daughter to whose mother the representations were made. The plaintiff’s evidence in the case tended to show that certain manufacturers of a stove blacking advertised it in Nashua, stating that it was for sale by the defendants; the plaintiff’s mother saw the advertisement, called at the defendant’s store and asked a clerk if the blacking they were advertising was intended for stovepipes or for stoves. He replied that it was intended for stoves, and said, ‘The warmer the stove, the better it works. ’ She replied, ‘Won’t that be fine; I can black my stove without letting my fire go out. ’ Belying upon the representations that the blacking could be safely used on a hot stove, the mother bought a can. Two days later, the plaintiff, a member of her mother’s family, used some of the blacking on a hot stove and an explosion resulted, causing the injuries complained of. The plaintiff and her mother were blamelessly ignorant of the fact that the blacking contained naphtha. In the opinion the court says: ‘The defendant’s position is like that of one who “puts destructive * * * materials in situations where they are likely to produce mischief.” Ricker v. Freeman, 50 N. H. 420, 432. Such a person must respond in damages to those who are injured because of his acts, if he either knew or ought to have known that the materials were dangerous and that the persons injured might come in contact with them. Hobbs v. Company, ante [74 N. H.] 116; Scott v. Shepherd, 3 Wils. 403; S. C. 2 W. Bl. 892; Cooley on Torts, 78. (Italics ours.)
“ ‘Although the defendants probably did not have the plaintiff in mind when they sold the blacking to her mother, they knew the mother bought it to use on her stove and that other members of the family were likely to use it, consequently the plaintiff can recover, if her mother could have recovered, had she been injured instead of the plaintiff.’ * * *”
Another case cited was that of Thomas v. Winchester, 6 N. Y. 397, wherein a dealer in drugs sold another druggist a jar of belladonna, labeling it “Extract of Dandelion,” from which the second druggist filled a prescription for ‘ ‘ Extract of Dandelion. ’ ’ The patient took the medicine containing the belladonna, and an action by him against the first seller of the deadly drug was sustained. Therefore, in the case at bar, if there were facts in evidence from which the jury might say or might reasonably infer that defendant knew, or in the exercise of ordinary care should have known, that the car in question contained a poisonous substance known as white lead, and furthermore, knew, or. should have known, the purposes for which said car was to be used, then it was its duty, as a matter; of law, to anticipate the consequences that might naturally and properly follow its act in furnishing such a car for the purposes intended, viz., that anyone buying the refuse might feed same to his live stock. If the jury might further infer from the evidence that plaintiffs, sustained injury from said act on the part of the defendant, by which they were damaged, and that said injury was a natural and probable consequence of such act, then under the principle of law above cited, defendant would be liable for the said injury. After a careful review of the evidence, we are of the opinion that the jury might reasonably have inferred from said evidence that defendant had, or in the exercise of reasonable care should have had, knowledge that the car designated by the defendant in which to ship this cattle feed contained a poisonous substance known as white lead, and that when it designated said ear for use by the plaintiffs, it had, or should have had, knowledge of the purposés for which it was intended. Therefore, as already stated, it was its duty, as a matter of law, to anticipate the consequences that might naturally and properly flow from its act in furnishing such car to the consignor for shipment of the cattle feed. "We are further of the opinion that there was evidence from which the jury might reasonably have inferred that the injury sustained by the plaintiffs, for which damages are sought, was the consequence that the defendant should have anticipated would naturally and probably flow from the act complained of, and furthermore, that there was no evidence of the intervention of an independent agency contributing to said injury.
Defendant cannot shield itself from responsibility by claiming that the plaintiffs were not parties to the contract tinder which this car was furnished, because defendant was charged with the knowledge that not only the person with whom it had contracted might sustain injury, but that any other person who would buy the feed transported in said car would sustain injury. Defendant was a common carrier, charged, under the law of our State, with the duty to furnish suitable cars for the transportation of persons and their property; and plaintiffs, purchasing said cattle feed at Wheeling, had the right to believe that defendant had performed such duty.
Defendant, further contends that the consignor, with whom it had contracted for furnishing the car in question, had taken upon itself the duty of cleaning the car, thereby relieving it of any responsibility in connection therewith. The only evidence to support such contention was that of two employees of the consignor who testified that they always cleaned the cars furnished for cattle feed, and that on the occasion in question they cleaned the car with shovels and brooms. This testimony, however, was not evidence of an agreement on the part of the consignor to clean the car, nor was it conclusive on the question whether or not the car was clean when loaded, but was merely evidence of facts which might have been taken .into consideration by the jury had they been permitted to pass upon the issues. Moreover, even though the consignor had agreed to clean said car, that would not relieve the defendant, as far as the plaintiffs are concerned, of its duty, imposed by law, to furnish a car suitable for the purpose for which it was intended. The act of the consignor in cleaning the car was the act of the defendant. Chicago & A. R. Co. v. Davis, 159 Ill. 53, 58.
Defendant further maintains that plaintiffs had knowledge of the presence of this whitish substance in the bottom of the car and in the cattle feed removed therefrom; that in failing to take measures to ascertain the nature thereof, they were not in the exercise of ordinary care, thereby contributing to the injuries sustained. On this point, taking into consideration the evidence that three persons besides the plaintiffs, who had noticed this whitish substance on the bottom of the car and in the refuse, bought it for the purpose of feeding the same to their cattle, and did so, the question whether or not plaintiffs acted as ordinarily prudent men would have acted under like circumstances, was also one of fact for the jury and not a question of law for the court.
Defendant further contends that, this being an action to recover damages for an injury arising out of the sale of feed for animal consumption, the rule of caveat emptor applies, and that under the facts in evidence the plaintiffs cannot recover. In our view of the issues as heretofore expressed, this contention is without force.
For the reasons hereinabove assigned, we are of the opinion that the issues should have been submitted to the jury, and that the trial court erred in directing a verdict for the defendant. Accordingly, the judgment will be reversed and the cause remanded.
Reversed and remanded.