State v. M. Fox & Son

Botd, J., delivered the opinion of the Court. A demurrer to the declaration filed in this case was sustained by the Superior Court of Baltimore City. Judg ⁵²¹ ment was entered on the demurrer and an appeal taken to this Court. It therefore becomes necessary for us to ascertain what facts are alleged as the basis of the suit— they being admitted by the demurrer to be true.

The plaintiffs allege that the defendants are dealers in horses and proprietors of a livery and sale stable, and had in their possession a mare which was “ affected with a contagious and infectious disease called ‘ glanders,’ a disease which is not only fatal to horses, but which may easily be communicated to human beings who happen to be brought into contact with horses suffering therefrom”; that the defendants well knowing that the mare was suffering from said disease, the dangerous character of the disease, and that it was dangerous to human life, in disregard of the statutes of this State relative thereto, negligently and wilfully exposed the mare for sale, and did sell her to one William H. Hartlove for the sum of $75; that said William H. Hartlove, “ not knowing of the true condition of said mare, or that she had said disease, but relying upon and believing the assurance given him by the defendant, that she was suffering from nothing worse than a bad cold, paid for said mare, took her away and placed her in another stable where she could be and has in fact (been) attended to and treated by John W. Hartlove,” a brother of William H.. Hartlove, the husband of one of the equitable plaintiffs and the father of the others. They further allege that John W. Hartlove, “while attending to said mare and using due care, and not knowing that she had said disease, contracted the same and died.” Article 67, sec. 1 of our Code provides that “whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued, shall be liable to an action of ⁵²² damages, notwithstanding the death of the person injured,” etc. We are therefore to determine whether, under the facts admitted by the demurrer, John W. Hartlove, if he had survived, could have recovered under this declaration. It is said in Benjamin on Sales, see. 431, that ‘£ a man may make himself liable in an action founded on tort, for fraud or deceit or negligence, in respect of a contract, brought by parties with whom he has not contracted, by a stranger, by any one of the public at large who may be injured by such deceit or negligence,” although this statement is somewhat qualified in the later editions of that work.

The main difficulty consists in applying the principles applicable to such actions to the facts of the particular cases. We will therefore examine into some of the authorities which have been brought to our attention to ascertain what the various Courts have determined, with a view of applying what we deem to be the correct principles to the circumstances of this case. The case of Thomas vs. Winchester, 6 N. Y., 397 (2 Selden), is one of those mainly relied on by appellants. It has probably gone further than most of the cases, and has been somewhat criticised by some authorities.

It must be conceded that the facts of that case differ in some material respects from the one we now have under consideration. It very clearly decides, however, that the fact that the plaintiff was not a party to the contract with the defendant, but purchased the article in question from a druggist, who had bought it from another druggist, the vendee of the defendant, did not preclude a recovery. The action was founded on the negligence of the defendants, whose agent had negligently labeled a jar of what was in fact belladonna, “ -J- lb. dandelion,” etc. By reason of this negligent label ⁵²³ ing, the intermediate vendors as well as the plaintiff were led to believe that it was the extract of dandelion, which was harmless, and did not know it was belladonna, which was poisonous. The Court, on page 409, said: “ In the present case the sale of the poisonous article was made to a dealer in drugs, and not to a consumer; the injury, therefore, was not likely to fall on him, or on his vendee, who was also a dealer; but much more likely to be visited on a remote purchaser, as actually happened.” “ The defendant’s negligence put human life in imminent "duaiger. * * * The defendant’s duty arose out of the'nature of his business, and the danger to others incident to its mismanagement.” On page 410 it is said: “In Longmeid vs. Holliday, 6 Exch., 761, the distinction is recognized between an act of negligence imminently dangerous to the lives of others, and one that is not so.

In the former case, the party guilty of the negligence is liable to the party injured, whether there be a contract between them or not; in the latter, the negligent party is liable only to the party with whom he contracted, and on the ground that negligence is a breach of the contract.” As the defendant was the cause of the injury to the plaintiff, without any intervening negligence of others, and it was “an act of negligence imminently dangerous to the lives of others,” he was very properly held liable, although no fraud was proven or alleged. In Loop vs. Litchfield, 42 N. Y., 351 , it was held that the vendor of an article of his own manufacture is not liable to one who uses the same, with the consent of the purchaser, for injuries resulting from a defect therein, unless such article is, in its nature “ imminently dangerous.” See also Losee vs. Clute, et al., 51 N. Y., 494 . In Davidson vs. Nichols, 11 Allen, 514 , it was held, that the sale of an article, in itself harmless, and which only became dangerous by being used in combination with ⁵²⁴ some other article, without knowledge by the vendor that it was to be so used, did not make him liable to the purchaser from the original vendee for an injury sustained by him while using it in combination with the other article, notwithstanding it was different from that which was intended to be sold. The facts of that case did not disclose any duty or obligation which rested on the defendant toward the plaintiff in the sale of the article.

The Court said: “We know of no duty, or principle of law by which a vendor of an article can be held liable for mistakes in the nature or quality of the article arising from his carelessness and negligence, which causes loss or injury to other persons than his immediate vendee, when there has been no fraudulent or false representation in the sale, and the article sold was in itself harmless, especially when the sale is made without any notice to the vendor that the article is bought for a third person,” etc. In McDonald vs. Snelling, 14 Allen, 294 , the Court said: “Where a right or duty is created wholly by contract, it can only be enforced between the contracting parties. But when the defendant has violated a duty imposed on him by the common law, it seems just and reasonable that he should be held liable to every person injured, whose injury is the natural and probable consequence of the misconduct. * * An action can be maintained only where there is shown to be, first, a misfeasance or negligence in some particular as to which there was a duty towards the party injured, or the community generally; and, secondly, where it is apparent that the harm to the person or property of another which has actually ensued, was reasonably likely to ensue from the act or omission complained of.” In Wellington vs. Downer Kerosene Oil Co., 104 Mass., 64, 68 , the Court decided that where the defendant sold naphtha to a retail dealer to be sold by him to be used in lamps for illuminating purposes, the defendant knowing it ⁵²⁵ to be explosive and dangerous to life when so used, and that the retail dealer’s purpose was to sell the same, and the latter sold it to the plaintiff without either of them knowing its dangerous qualities, he was held liable and was bound to contemplate, as a natural and probable consequence of his unlawful act, that it might explode or ignite and injure an innocent purchaser or his property, and must answer in damages for such a consequence if it should come to pass. It was held in Jeffrey vs. Bigelow, 13 Wend., 518 , that the sale of an animal which had a contagious disease, known to the vendor but not to the vendee, was a fraud. This is approved of in Cooley on Torts,481 (1st ed),where it is also said that the fraud would not only be morel censurable, but more clearly actionable, if that which is exposed to injury by the concealment is the health or life of human beings.

See also Wood on Nuisance, sect. 146. Hill vs. Balls, 2