STULTZ v. BENSON LUMBER CO (1935)

This is an appeal from a judgment in favor of the defendants, entered after the sustaining of a demurrer to a second amended complaint without leave to amend. The appeal is from the judgment in its entirety. Plaintiff admits that the portion of the judgment in favor of Horace Raymond Newby and Charles D. Newby must be affirmed, leaving under attack here only that portion of the judgment in favor of the Benson Lumber Company, a corporation. We will hereafter refer to the Benson Lumber Company as the defendant.

Our sole problem is to determine the sufficiency of the allegations of the second amended complaint to state a cause of action against defendant. Of course, on this appeal we must accept as true all properly pleaded allegations of the complaint.

An examination of this pleading discloses that the following facts are alleged: That on April 26, 1934, plaintiff was in the employ of the Newbys and was painting a building on North Island in San Diego county; that he was standing on a scaffold which placed him about 25 feet above the ground; that the scaffold had been constructed by the Newbys; that while plaintiff was standing upon the scaffold and engaged in his painting, a plank, constituting a main support, broke, precipitating him to the ground causing serious injuries; that the plank had been cut, sawed, and shaped from the original timber by defendant; that the Newbys purchased this plank from defendant and at the time of purchase they informed the agents of defendant that it was to be used as a main support of the scaffold; that the plank was filled with knots, was cross-grained, and otherwise inappropriate for the purpose for which it was sold and used; that at the time of the sale and use of the plank it was inherently and imminently dangerous when used as a main support of the scaffold because of its alleged defects; that these facts were all known by defendant and the Newbys at the times of the sale and use of the plank. The other allegations of the second amended complaint are not material on this appeal. It is evident this is a tort action.

Plaintiff asks us to sustain three propositions, and contends that if we do, we must reverse the judgment. They are as follows:

1. “That lumber is a manufactured article, and that the Benson Lumber Company, a corporation, was a manufacturer, and as such made and sold the defective plank.”

2. “That in addition to being a manufacturer of the defective plank, the Benson Lumber Company, a corporation, was the vendor thereof.”

3. “That a manufacturer and vendor who produces an article which may be dangerous to life and limb according to its use, and is fully aware of the dangerous use to which the article is to be put, whether that knowledge is acquired by inference from known facts that the article is ordinarily so used, or acquired from an express declaration of the purchasers that it is to be used for such dangerous purpose, is liable for damages to a stranger to the purchase, who uses such manufactured product for the purpose for which it was sold and intended to be used as stated by the purchaser, and which injuries are proximately caused by defects of which the vendor and manufacturer was aware or should have been aware.”

Before approaching the problems presented by these propositions, a few general observations on the history, growth, and present condition of the law on the subject might be helpful. In the early cases the manufacturer of inherently dangerous commodities, such as poisons, explosives, and things of a like nature which in their normal operations put human life in danger, was required to exercise care and skill in the manufacture and correctness in labeling. Generally speaking, the manufacturer was held to be liable to those coming within his orbit of duty who were injured as a proximate result of lack of skill or care in the manufacture or false labeling. In the case of other articles not inherently dangerous in themselves, when used for some purposes, but possessing such dangers when used for other purposes, the doctrine grew by extending the liability to those in privity of contract with the manufacturer or vendor who had notice and knowledge, express or implied, of such dangerous defects and dangerous use. In some jurisdictions the rules were broadened by exceptions grafted onto them by the courts, so that the manufacturer or vendor of an article, safe in itself and only dangerous when put to a particular known use, is made liable for injury to the person lawfully using it or lawfully upon the premises where it is found when the injury is proximately caused by the known defect in manufacture or known negligent structural weakness, when measured by the known purpose of use. In these jurisdictions the orbit of duty of the manufacturer or vendor has been extended far beyond that contemplated in the early rules to which the courts of many states still adhere. This has resulted in such a hopeless confusion in judicial decisions and conflict in authority that it is impossible to even make an attempt to harmonize them. It cannot be done. This conflict exists in the decisions of the same courts of individual states, and is found to a lesser degree in California, though by recent cases the limits of the rules and exceptions seem to be well defined.

In those jurisdictions, where the early rule has been hesitatingly broadened by the adoption of exceptions to it, the courts seem to be actuated by the thought that the manufacturer or vendor of an inherently dangerous article, or an article that may become inherently dangerous when put to a particular known use, should respond in damages for the injury of any person, proximately caused by the use of such article when its use by such person should have been anticipated by the manufacturer or vendor. This more humanitarian rule finds warm support and equally strong condemnation in the courts of various jurisdictions.

An interesting illustration of the rapid growth of this broadening process is found in the opinions in Cadillac Motor Car Co. v. Johnson, 221 F. 801, L. R. A. 1915E, 287, Ann. Cas. 1917E, 581, and Johnson v. Cadillac Motor Car Co., 261 F. 878, 8 A. L. R. 1023, both rendered by the United States Circuit Court of Appeals of the Second Circuit, the first in March, 1915, and the second in November, 1919. These two decisions were rendered by the same court, in the same action between the same parties, and on similar proven facts. The plaintiff purchased from a dealer an automobile manufactured by defendant and sold by it to the dealer. It had a defective wheel which collapsed during careful use, causing serious injury to plaintiff. A judgment in his favor was reversed by the first decision because there was no privity of contract between the plaintiff, the purchaser from the dealer, and the defendant, the manufacturer, and original vendor. In the second decision the court repudiated the privity of contract theory and reversed the judgment of the trial court in favor of defendant, which judgment was entered in strict compliance with the rule announced in the first opinion, that privity of contract between the injured party and the manufacturer or vendor must exist before judgment for plaintiff could be rendered. By citing the second decision, we do not intend to intimate that what is there said concerning the law of the case can be made applicable to cases pending in California.

Counsel for both parties have been prolific in the citation of authorities from all over the United States with an occasional excursion into English jurisprudence. No good could come from a discussion of any great number of these cases. Many of them are flatly conflicting and can neither be harmonized nor distinguished. We will confine ourselves to the citation of their authorities under the points made without criticism, approval, or consideration, except the relatively few that we consider helpful in discovering the correct rules to be applied to this case in California.

Plaintiff cites many cases in support of his first proposition. It is not necessary to cite them in view of the concession of the defendant that it is immaterial what conclusion is reached on the question of whether the cutting, sawing, and shaping of the plank from the original timber by defendant made it the manufacturer, and the further concession that we may consider defendant such manufacturer. It is alleged that defendant was the vendor of the plank, and we must accept this as true. We will therefore assume that defendant was the manufacturer and vendor of the plank, and that it had notice of its structural weakness and the consequent danger to any one using the scaffold of which this plank formed a main support. This last is alleged and must be accepted as true. It is also alleged, and must be accepted as true, that the defendants Newby had notice of the same defects and danger at the time they purchased the plank and when they used it as a main support of the scaffold.

In support of his third contention, plaintiff cites, among others, the following cases: Lewis v. Terry, 111 Cal. 39, 43 P. 398, 31 L. R. A. 220, 52 Am. St. Rep. 146; McCall v. Pacific Mail S. S. Co., 123 Cal. 42, 55 P. 706; Dahms v. General Elevator Co., 214 Cal. 733, 7 P.(2d) 1013; Hall v. Barber Door Co., 218 Cal. 412, 23 P.(2d) 279; Kalash v. Los Angeles Ladder Co., 1 Cal. (2d) 229, 34 P.(2d) 481; Cliff v. California Spray Chemical Co., 83 Cal. App. 424, 257 P. 99; Kolberg v. Sherwin-Williams Co., 93 Cal. App. 609, 269 P. 975; MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, 1051, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440; White Sewing Machine Co. v. Feisel, 28 Ohio App. 152, 162 N. E. 633, 634; Heckel v. Ford Motor Co., 101 N. J. Law, 385, 128 A. 242, 39 A. L. R. 989; Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N. W. 855, 60 A. L. R. 357; McLawson v. Paragon Refining Co., 198 Mich. 222, 164 N. W. 668; Torgesen v. Schultz, 192 N. Y. 156, 84 N. E. 956, 18 L. R. A. (N. S.) 726, 127 Am. St. Rep. 894; Ellis v. Republic Oil Co., 133 Iowa, 11, 110 N. W. 20, 24; Standard Oil Co. v. Parrish (C. C. A.) 145 F. 829; and Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N. W. 48, 48 L. R. A. (N. S.) 224.

Defendant cites the following cases, among others, as supporting the rule that the thing manufactured must be in itself inherently dangerous, or there must be privity of contract between plaintiff and defendant before recovery can be had: Catlin v. Union Oil Co., 31 Cal. App. 597, 161 P. 29; Fidelity, etc., Co. v. Paraffine Paint Co., 188 Cal. 184, 204 P. 1076; Huset v. J. I. Case, etc., Co. (C. C. A.) 120 F. 865, 61 L. R. A. 303; Stamford, etc., Co. v. Starkey (Tex. Civ. App.) 26 S.W. (2d) 368; Windram Mfg. Co. v. Boston Blacking Co., 239 Mass. 123, 131 N. E. 454, 17 A. L. R. 669; Tomlinson v. Armour & Co., 75 N. J. Law, 748, 70 A. 314, 19 L. R. A. (N. S.) 923. Some of these cases, as well as others cited by defendant, are based upon the implied warranty imposed by uniform sales acts. This being strictly a tort action, we are not concerned with implied warranties.

One of the widely cited cases which upholds the broader and more liberal view of the question we are considering is MacPherson v. Buick Motor Co., supra. The opinion was written by Mr. Justice Cardozo, now of the Supreme Court of the United States, while a member of the Court of Appeals of New York. It was there said: “The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car it suddenly collapsed. He was thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully concealed it. The case, in other words, is not brought within the rule of Kuelling v. Roderick Lean Mfg. Co., 183 N. Y. 78, 75 N. E. 1098, 2 L. R. A. (N. S.) 303, 111 Am. St. Rep. 691, 5 Ann. Cas. 124. The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser. * * * Early cases suggest a narrow construction of the rule. Later cases, however, evince a more liberal spirit. First in importance is Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311. The defendant, a contractor, built a scaffold for a painter. The painter's servants were injured. The contractor was held liable. He knew that the scaffold, if improperly constructed, was a most dangerous trap. He knew that it was to be used by the workmen. He was building it for that very purpose. Building it for their use, he owed them a duty, irrespective of his contract with their master, to build it with care.

“From Devlin v. Smith we pass over intermediate cases and turn to the latest case in this court in which Thomas v. Winchester [6 N. Y. 397, 57 Am. Dec. 455] was followed. That case is Statler v. George A. Ray Mfg. Co., 195 N. Y. 478, 480, 88 N. E. 1063. The defendant manufactured a large coffee urn. It was installed in a restaurant. When heated, the urn exploded and injured the plaintiff. We held that the manufacturer was liable. We said that the urn ‘was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed.’

“It may be that Devlin v. Smith and Statler v. George A. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons–things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin v. Smith, supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler v. George A. Ray Mfg. Co., supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water. Torgesen v. Schultz, 192 N. Y. 156, 84 N. E. 956, 18 L. R. A. (N. S.) 726, 127 Am. St. Rep. 894. * * *

“We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow.”

Another well-considered case which follows the same rule is White Sewing Machine Co. v. Feisel, supra, which involved damages for injury to the child of the purchaser of an electric sewing machine. The injury was caused by a defective electric cord. It was there said: “It is a general rule of law that a manufacturer or seller is not liable to third persons, with whom he has no contractual relations, for negligence in the manufacture or sale of an article. 24 R. C. L. 512, § 804, and cases cited. The general rule is grounded on the leading case of Winterbottom v. Wright, 10 M. & W. 109, 152 Eng. Rep. R. 402. This case has been frequently followed in the United States. Huset v. J. I. Case Threshing Machine Co. (C. C. A.) 120 F. 865, 868 [61 L. R. A. 303]. To this rule, however, many courts have recognized that exceptions exist. [Citing cases.]

“The manufacturer of an appliance, which, if defective in construction, will become inherently or imminently dangerous when used for the purpose for which it was intended, owes a duty to the public, irrespective of contractual relations, and it has been held in many cases that he will be liable to third persons for an injury directly caused by negligence in failing to make reasonable inspection of such defective appliance, where the injury was sustained while the appliance was being used for the purpose intended, and where the danger might reasonably have been foreseen by the manufacturer. Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633, 48 L. R. A. (N. S.) 213, and footnote at page 216, Ann. Cas. 1915C, 140; 13 A. L. R. 1183, and cases cited; 17 A. L. R. 683, and cases cited; 39 A. L. R. 993, and cases cited; 41 A. L. R. 35, and cases cited; 24 R. C. L., pp. 512 and 513.

“An examination of the cases cited will disclose that, while the rule was originally applied where the article of sale was ‘inherently’ or ‘imminently’ dangerous, it is now commonly invoked in cases where the dangerous character of the thing is made imminent by defective construction, which is the result of negligence, or would be discoverable upon exercise of ordinary care in making a reasonable inspection.”

Two interesting cases involving falls by workmen employees, in the one from a structurally defective scaffold and in the other from a like constructed platform, are Huset v. J. I. Case Threshing Machine Co., supra, and Bright v. Barnett & Record Co., 88 Wis. 299, 60 N. W. 418, 26 L. R. A. 524. These cases are valuable, not only for their clear reasoning, but for their extensive citation of authorities. They each took the view that privity of contract between the plaintiff and defendant was unnecessary in order to sustain the action. The federal case went up to the United States Circuit Court of Appeals after a demurrer to an amended complaint had been sustained in the trial court. It was there said: “The general rule is that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles. [Citing cases.] * * * But while this general rule is both established and settled, there are, as is usually the case, exceptions to it as well defined and settled as the rule itself. There are three exceptions to this rule. *** The third exception to the rule is that one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the parties or not. Langridge v. Levy, 2 M. & W. 519, 4 M. & W. 337; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64, 67; Lewis v. Terry [111 Cal. 39], 43 P. 398 [31 L. R. A. 220, 52 Am. St. Rep. 146].” The court was of the opinion that the case fell within the third exception because the defective platform “would bend and collapse whenever anyone stepped upon it” and the amended complaint “portrays a negligence imminently dangerous to the lives and limbs of those who should use the machine, a machine imminently dangerous to the lives and limbs of all who should undertake to operate it, a concealment of this dangerous condition, a knowledge of the defendant when it was shipped and supplied to the employer of the plaintiff that the rig was imminently dangerous to all who should use it for the purpose for which it was made and sold, and consequent damage to the plaintiff.”

In the case of Dahms v. General Elevator Co., 214 Cal. 733, 7 P.(2d) 1013, 1015, a problem was involved somewhat similar to the one we are considering. The Supreme Court there said: “It is a general rule that an independent contractor such as a manufacturer or vendor of an article is not liable for injuries sustained by reason of defects in articles unless there is a contractual relationship between him and the one injured. [Citing cases]. The leading case so holding is Winterbottom v. Wright (1842) 152 Eng. Report, 402, where it was held that one under contract to furnish a coach was not liable to the driver of the coach for defective construction, after the coach had been furnished and accepted. To this general rule, as above stated, there are certain exceptions, recognized generally by nearly all jurisdictions. However, the various jurisdictions are in hopeless conflict as to the applicability of any one exception to particular factual situations. See note in 41 A. L. R. 8. * * * There are numerous cases from nearly every jurisdiction which hold that an action sounding in negligence may be maintained by a stranger to a contract for the execution of a specific piece of work or the sale of a manufactured article, if the product of the stipulated work or the article sold was abnormally dangerous or noxious. [Citing cases.] In most of the early cases in which the right of action under this exception has been discussed the courts have proceeded upon the theory that the duty arising from dangerous quality exists only as respects things that are, in the stricter sense of the term, ‘dangerous in themselves,’ such as poisons, explosives, etc. The California cases have heretofore shown an inclination to so limit the rule, although not definitely so holding. See Means v. Southern California Ry. Co., 144 Cal. 473, 77 P. 1001, 1 Ann. Cas. 206, where it was held that sulphuric acid is not such a dangerous instrumentality that one handling it does so at his peril; Lewis v. Terry, 111 Cal. 39, 43 P. 398, 31 L. R. A. 220, 52 Am. St. Rep. 146; Solomon v. Red River Lumber Co., 56 Cal. App. 742, 206 P. 498; Fidelity, etc., Co. v. Paraffine Paint Co., supra; Catlin v. Union Oil Co., supra. In McCall v. Pacific Mail S. S. Co., 123 Cal. 42, 55 P. 706, plaintiff was injured by virtue of a defective sling furnished by defendant, who was not the employer of plaintiff. The court denied recovery to plaintiff because negligence was not shown to exist, but clearly held that the defendant owed plaintiff a duty of due care. At page 43 of 123 Cal. 42, 55 P. 706, 707, it is stated: ‘But the rule is too firmly settled to be open to successful attack, that, where one agrees to furnish to a contractor material or appliances which he is to use in the performance of his task, the principal is liable to the servants and agents of the contractor for injuries which may result to them from his negligence or inadequate performance of his contract in this regard. * * * The principle itself is settled beyond the possibility of successful controversy.”’

The recent case of Kalash v. Los Angeles Ladder Co., 1 Cal.(2d) 229, 34 P.(2d) 481, 482, is particularly valuable because of its factual similarity to the instant case. There the Los Angeles Ladder Company manufactured and sold, to the employer of plaintiff, a forty-foot extension ladder with the next to the top rung defective. While the plaintiff was standing on this rung it collapsed, precipitating him to the sidewalk. The Supreme Court there said: “We are aware that a ladder is a rather simple tool and that no contractual privity existed between plaintiff and defendant. We further realize that the common law, as a general rule, throws a strong arm of protection around the manufacturer, warding off claims of third persons, not direct purchasers, for personal injuries sustained from use of articles so manufactured and sold by him. But we are at the same time in full sympathy with the acknowledged exceptions to this general rule and also with the trend of judicial decisions which extend these exceptions to include additional classes of cases not heretofore included. The language of Mr. Justice Cardozo while a member of the New York Court of Appeals, in the case of MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, 1053, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440, seems appropriate:

“‘We hold, then, that the principle of Thomas v. Winchester (6 N. Y. 397, 57 Am. Dec. 455) is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. * * * In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.’

“The same learned justice, in his work entitled ‘The Growth of the Law,’ comments further upon this subject as follows (The Growth of the Law, 1924 Ed., p. 77): ‘The development is merely a phase of the assault now extending along the entire line, upon the ancient citadel of privity. In New York, there is a remedy in tort regardless of privity, against the negligent manufacturer, where the subject of the manufacture is likely to be dangerous to life. MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440. The things classified as dangerous have been steadily extended with a corresponding extension of the application of the remedy. They began with Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, and the sale of poisons. They have been widened until they include a scaffold (Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311) or an automobile (MacPherson v. Buick Motor Co., supra), or even pies or cakes when nails and other foreign substances have supplied ingredients not mentioned in the recipes of cook books.’

“This same tendency in England is noted in a recent decision by the House of Lords, styled Donoghue v. Stevenson (1932) A. C. 562, where the subject received extensive consideration and the doctrine announced by Mr. Justice Cardozo was approved. This court has marched in complete step with these advancing judicial pronouncements. * * * Sufficeth it to say that from the principles stated we easily conclude that it was a proper question of fact for the jury as to whether or not an extension ladder of recent manufacture, when used as plaintiff was using it, became, because of defective construction or assembling, an instrument imminently dangerous to human life or limb.”

We conclude that the general rule in California, applicable to this case, now is, that when a manufacturer or vendor sells to another an article not inherently dangerous in itself, but because of known structural or other such weakness will be inherently dangerous to those using it for the purpose for which it was manufactured or sold, such weakness and such purpose being known to the manufacturer or vendor or both at the time of sale, the manufacturer or vendor will be held liable to respond in damages to the employee of the vendee who is injured while using the article, in the course of his employment, for the purpose for which it was manufactured or sold; provided the right of action be not defeated by the contributory negligence of the employee or upon some other legitimate ground.

Defendant urges that, assuming the rule we have announced is correct in California, still it cannot be liable because it is alleged in the second amended complaint that the defendants Newby, at the time they purchased the plank, had full knowledge of the defects in it, its lack of suitability for the purpose for which it was to be used, and the inherent danger in the scaffold if it were used as a main support for that structure. The argument in support of this proposition is divided into two phases: (1) Where the manufacturer or vendor of an article knows of a defect that will render it dangerous or unsafe for the purpose for which it is manufactured or sold, such manufacturer or vendor owes a duty to the purchaser, and to no other, to notify him of such defect and warn him of the danger. If this is done he performs the only duty which the law places upon the manufacturer or vendor, namely, to warn the purchaser; that as there is no duty to third persons there can be no breach of duty and consequently no negligence as to them. (2) Where the purchaser, with full knowledge of the defects and danger, persists in using the article, the act of the manufacturer or vendor, in making or selling it, ceases to be the proximate cause of the injury as its negligent use by the vendee becomes the proximate cause. The first contention resolves itself into the questions of whether the protection of the employee of the vendee from the danger comes within the orbit of duty of the manufacturer or vendor, and whether, as to him, his injury should be foreseeable by the manufacturer or vendor at the time of the sale. The second contention resolves itself into the question of whether the negligence of the purchaser, with full knowledge of the facts, in using the dangerous article is a new and independent act of negligence that breaks the line of causation from the negligence of the manufacturer or vendor to the injury of the employee, or whether the negligence of each of such parties is concurrent so that all of them should be liable to the injured employee.

In support of these contentions, defendant cites, among others, the following authorities: McCaffrey v. Mossberg & Granville Mfg. Co., 23 R. I. 381, 50 A. 651, 55 L. R. A. 822, 91 Am. St. Rep. 637; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Heindirk v. Louisville Elevator Co., 122 Ky. 675, 92 S. W. 608, 5 L. R. A. (N. S.) 1103; Foster v. Ford Motor Co., 139 Wash. 341, 246 P. 945, 48 A. L. R. 934; Travis v. Rochester Bridge Co., 188 Ind. 79, 122 N. E. 1; Kilcrease v. Galtney Motor Co., 149 Miss. 703, 115 So. 193; Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N. E. 482; and Jazek v. Firuski (Sup.) 166 N. Y. S. 444. A majority of these cases come from jurisdictions where, or they were decided when, the privity of contract rule which we have already discussed was in force and the conclusions grew out of the reasoning under that rule. For that reason they are not of compelling force in jurisdictions not now following such rule.

The latest text on the questions involved in this case which we have been able to find is Restatement of the Law of Torts, pages 1038 to 1091, inclusive, and chapter sixteen commencing at page 1154, where all of the questions here involved are discussed.

On the question of the duty of a vendor to warn of defects in the article sold which make it dangerous for a contemplated use, the authors state the general law to be that this duty is ordinarily fulfilled when the first purchaser is warned and given all the knowledge the vendor possesses on the subject. However, several exceptions to this general rule are given. One particularly applicable here is stated as follows (p. 1049, et seq.): “Chattels are often supplied for the use of others, although the chattels or the permission to use them are not given directly to those for whose use they are supplied, as when a contractor furnishes the scaffolding or other appliances which his sub-contractor and the latter's servants are to use, * * * In all such cases the question may arise as to whether the person supplying the chattel is exercising that reasonable care, which he owes to those who are to use it, by informing the third person through whom the chattel is supplied of its actual character.

“The giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it. All sorts of chattels may be supplied for the use of others, through all sorts of third persons and under an infinite variety of circumstances. This being so, it is obviously impossible to state in advance any set of rules which will automatically determine in all cases whether one supplying a chattel for the use of others through a third person has satisfied his duty to those who are to use the chattel by informing the third person of the dangerous character of the chattel or of the precautions which must be exercised in using it in order to make its use safe. There are, however, certain factors which are important in determining this question. There is necessarily some chance that information given to the third person will not be communicated by him to those who are to use the chattel. This chance varies with the circumstances existing at the time the chattel is turned over to the third person, or permission is given to him to allow others to use it. These circumstances include the known or knowable character of the third person and may also include the purpose for which the chattel is given. Modern life would be intolerable unless one were permitted to rely to a certain extent upon others doing what they normally do, particularly if it is their duty to do so. * * * If, however, the third person is known to be careless or inconsiderate or if the purpose for which the chattel is to be used is to his advantage and knowledge of the true character of the chattel is likely to prevent its being used and so to deprive him of this advantage–as when goods so defective as to be unsalable are sold by a wholesaler to a retailer–the supplier of the chattel has reason to expect, or at least suspect, that the information will fail to reach those who are to use the chattel and whose safety depends upon their knowledge of its true character. In such a case, the supplier may well be required to go further than to tell such a third person of the dangerous character of the article, or, if he fails to do so, to take the risk of being subjected to liability if the information is not brought home to those whom the supplier should expect to use the chattel. * * * Even though the supplier has no practicable opportunity to give this information directly and in person to those who are to use the chattel or share in its use, it is not unreasonable to require him to make good any harm which is caused by his using so unreliable a method of giving the information which is obviously necessary to make the chattel safe for those who use it and those in the vicinity of its use.”

With this exception in mind when considering the allegations of the complaint, we have the following situation: Defendant knew of the defects in the plank and the purpose for which it was to be used; that if so used it would create a dangerous condition; that the Newbys knew of these same defects, and, regardless of the danger created by the use of the plank, purchased it for use as a main support of the scaffold; that the plank was so used by them; that it broke, causing serious injury to plaintiff. Under these allegations we are of the opinion that there was tendered the issue of whether the fact of the acceptance of the defective plank by the Newbys for use in the scaffold should not of itself have warned defendant that the Newbys were so careless or inconsiderate of the safety of those using the scaffold that further warning to others than the Newbys should have been given by defendant in order to protect itself against claims for damages by those injured while lawfully using the scaffold. We are of the opinion that the question thus raised presents a question of fact and not one solely of law.

We have already cited numerous cases, some of them from this state, which hold that the plaintiffs, some of them employees, others members of families of, and still others occupying other relations to purchasers of dangerously defective articles, had causes of action against manufacturers or vendors. While the question we are considering was not raised in those cases in precisely the same form as it is presented here, the rights of actions could not have been supported had the courts been of the opinions that the orbits of duty of the vendors did not extend to and include the several plaintiffs, and that the injuries of the plaintiffs were not foreseeable at the time of the sale. We are of the opinion that in the instant case this question is one that should have been left to the trier of fact.

We are also of the opinion that the question of whether the negligence, if any, of defendant was a proximate cause of the injury of plaintiff was one for the trier of fact. It is conceded that the Newbys were negligent. Whether their negligence was concurrent with that of plaintiff, if any, or was an independent act of negligence and was the sole proximate cause of plaintiff's injury which broke the chain of causation of defendant's negligence, if any, should not have been decided on demurrer under the allegations of the complaint. It may be that a jury might reasonably conclude that at the time of the sale of the timber, defendant knew and contemplated that it would be used by the Newbys in building the scaffold, and that such negligent use of it by the Newbys was part of the chain of causation from the negligence, if any, of defendant to the injury of plaintiff rather than break in this chain. Kalinowski v. Truck Equipment Co., 237 App. Div. 472, 261 N. Y. S. 657.

The portion of the judgment in favor of Horace Raymond Newby and Charles D. Newby is affirmed. The portion of the judgment in favor of Benson Lumber Company, a corporation, is reversed, and the trial court is instructed to overrule the demurrer of that defendant and give it a reasonable time within which to serve and file its answer.

MARKS, Justice.

We concur: BARNARD, P. J.; JENNINGS, J.