Document NEQQmQwr5kZm9Ez6j9KEV5n2D

CONFIDENTIAL Manual of CHEMICAL PRODUCTS LIABILITY An analysis of the law con cerning liability arising from the manufacture and sale of chemical products. Prepared by John D. Conner and George A. Burroughs ,n Copyright June 1952 Manufacturing Chemists' Association and National Agricultural Chemicals Association N39102 S' 1-31 & I 7 > ~r~ C.'l&l 7^*1 COPY NUMBER 9k CQNFIP.EMJIAL REPORX This copy of the Manual of Chemical Products Liability has been assigned to Columbia University Book Store 2960 Broad-way ; New York 27* New York i .* _______ ______ ________ _____ for exclusive use within the assignee's organization. It is not for release or reproduction and should not be loaned or sold to any party hot connected with the assignee's organiza tion. The purpose of this restriction is to assure that the confidential information herein will be used solely to serve the interests of th$ members of the Manufacturing Chemists' Association and the National Agricultural Chemicals Association. This purpose would be largely defeated by the indis criminate use or release of the Manual or portions thereof in a manner other than that prescribed herein. *> (' C * * Manufacturing Chemists' Association National Agricultural Chemical's Association V- i. The purpose of this Manual is to present in comprehensive and concise form the underlying principles of law on the subject of chemical-products liability. An effort has been made to collect and analyze all of the reported federal and state decisions dealing with the legal liability of the manufacturer, wholesaler, and retailer to per sons who have suffered personal injury or property damage in consequence of the use of various types of chemical products. There has been no attempt to cover the subject of the public law regulating the manufacture and sale of these products except to the ex tent that it has a direct bearing on product liability in civil litigation. The Manual has been planned and executed jointly by the Manufacturing Chemists' Association and the National Agricultural Chemicals Association primarily as a refer ence work for lawyers advising or handling product liability claims for manufacturers and other sellers in the chemical industry. Part I is divided into three sections. The first includes a general discussion of the field of product liability law with emphasis on recent developments and trends. The second and third sections consist of a statement of the various legal principles which find application in chemical-products liability cases together with supporting and contra decisions under each principle. It is recognized that these principles are stated in some instances as delusively exact formulas and in others as oversimplified generalizations. For this reason these statements of legal principles should be con sidered primarily as vehicles for the annotations, rather than as unequivocal and exact statements of the law as it exists in all jurisdictions. The decisions annotated in Part I principally involve chemical products. However, leading product liability decisions involving other products have been in cluded where they enunciate important principles of general applicability. Part II represents a digest of the reported federal and state decisions re lating to chemical products. The decisions digested include those reported in the General Digest from 1658 - 1951 under the following subjects and key numbers: (1) Negligence - 2.7, (2) Poisons - all keys, (3) Druggists - all keys, (4) Explosives all keys, and (5) Sales - Warranties - 246 et seq. A Table of Contents is included to give a detailed conspectus of the content and arrangement of the Manual as a whole. TABLE OF CONTENTS (References are to pages) PART I SSSilflO-l*__Introduction Theories of Recovery in Chemical-Products Liability Cases Specific Types of Negligence .................................................... Specific Types of Warranties .................................. ................. ,, Contemporary Problems in Product-Liability Claims ............ (1) Adequate and Accurate Labeling ................ (2) Adequate Pre-Testing .......................... (3) Compliance with Statutory Controls ............ (4) Avoidance of Liability through Disclaimers ..... (5) Concept of Privity ............................ (6) Strict Liability .............................. A. Liability of Manufacturers for Negligence a. General-Basis of Liability ........................................................................ 1. A manufacturer is not an insurer of the safety of his products and is.subject to liability in tort actions only when he has failed to exercise reasonable care to make his product safe for the use for which it is sold, although in sane instances this principle has been avoided by indirection and a degree of care more cbmmensurate with that of an insurer has been imposed (a). Leading decisions asserting the general rule that liabil ity in tort depends upon the absence of reasonable care . (b) Leading decisions asserting the rule that strict liabil ity may be imposed notwithstanding the exercise of due care .... ............................................................................................ (c) General references .................................................................... h. Extent Bs,?p<?p?ifrU,;Uy ............................................ ............................ . 2. A manufacturer who has failed to exercise reasonable care to make his product safe for the us for which it is intended is subject to liability to the person or property of any person who may be expected to use his product or be in the vicinity of his product's probable use for harm resulting from such negligence. (a) Leading decisions asserting the general rule that a manufacturer is subject to liability to remote parties .. 9 (b) Early leading-decisions asserting, the rule of non- I'.ability in the absence of privity ...................................... 9 (c) Cases holding manufacturer liable, for personal injuries or property damage to remote parties .................................... 9 (d) Castas holding manufacturer not liable to remote parties in which lack of privity was either determining factor o f appeared to influence court's decision ........................... 10 (e) General references ...................................... 11 o. Particular Types of Negligence ................................................................. 11 3. The violation of a statute which is designed to protect the public -agaipst th type of harm which has occurred may be negligence In itself. (a) Cases hiding manufacturer liable for statutory viola tion ................................................................................................. 11 (b) Cases holding statutory violation only evidence of neg ligence ................................................................................... 12 (c) Cases holding manufacturer not liable where statute was interpreted as inapplicable ................................................ 12 (d) Cases folding manufacturer npt liable where violation of statute":was not the proximate cause of the injury com plained of ...................................................................................... 12 (e) General references ...................................................................... 12 ii co cxjcoo' co r-t-t-to jix c o f-v in to * .* * V L- 4. A manufacturer may be negligent by failing to give an appropriate warning or caution of any danger incident to the normal use of his product which a user would not ordi narily discover. (a) Cases holding manufacturer liable for failure to label adequately ...................................................................................... 12 (b) Cases holding manufacturer liable for failure to warn by means other than labels ................. '................................... 13 (c) Cases holding manufacturer not -liable where warning was adequate ...................................... ................... ............................ 13 (d) Cases holding manufacturer not liable where product was not dangerjjus when .put to its intended use ....................... 13 () Cases holding manufacturer not liable where user knew or could have!discovered danger .................................................. 13 (f) Cases holding manufacturer not liable where inadequate warning wa(s .not proximate cause of injury complained of 14 (g) General references ..................................... 14 5. A manufacturer j*fa undertakes to; make claims for the safety of his product .Jay label or otherwise may be negligent by failing to ascertain the truth and accuracy of such repre sentations when they are in fact false or inaccurate. (a) Cases holding manufacturer liable for negligent misrajesantation ............................................................................ 14 (b) Cases holding manufacturer not liable where representa tions werei not false or inaccurate ..................... 14 (c) Garosral references ........................................ 14 6. A manufacturer may be negligent by failing to test his prod uct adequately before placing it on the market to assure that It is safe for its intended use, (a) Cases holding manufacturer liable for failure to conduct adequate t|eets. on his product .......................... 15 (b) Casas holding manufacturer not liable where tests were held adequate or unnecessary ........................... 15 (c) General references ..................................... 15 7. A manufacturer nay be negligent in failing to use a formula for Ms'product Which will make iit safe for its intended use. (a) Casas holding manufacturer .'liable for harm caused by the presence qf harmful substances in the formula of his _ prqtftuct .j.................... ..... .......................................................... 15 (b) Casas- holding manufacturerjnot liable where product was mot dangerous when put to its intended use ............. 16 (c) General references ............................................................... 16 8. A manufacturer may 'be'negligent in failing to take proper precautions;agqinst the contamination or adulteration of his . product, With foreign substances .which will make the product unsafe fop? its jimteraded use. (a) Cases holding manufacturer liable for harm caused by the presence of harmful foreign matter in his product ...... 16 (b) CasejS holcjlng manufacturer; not liable where product was not daftgsious when put to Its intended use ............. 16 (c) Cases haloing manufacturer not liable where adulteration was not foreseeable ................................................................ 16 (d) General references ................................................................... 16 9. A manufacturer I who undertakes tp package his product may be negligent in picking-the contents in the container in a manner Which is. likely to cause an explosion when the con tainer Is opened on* unpacked. (a) Cases holding manufacturer liable for harm resulting froro*i#pser packaging ................................ 16 (b) Cates. howing .manMfaoturer; not liable where explosion was not caused by improper packaging ................... 17 (c) General references ...................................................... ............ n 10. A manufacturer|who undertakes to package his product may be negligent in uttng a -defective container which may cause harm when it is hanaled. (a) Cases hoiking manufacturer liable for harm resulting from defective containers .............................. 17 (b) Cases holding manufacturer not liable .................. 17 (c) General rk Hi B. Liability of Vendors other than Manufacturers for Negligence 17 1- A vendor is not an insurer of the safety of the product which he sells and is subject to liability in tort actions only where he has failed to exercise reasonable care in its sale. (a) Cases asserting the general rule ............................................ 17 (b) Cases asserting the rule of strict liability ............ 18 (c) General references ....................................................................... 18 b> .................................... ...................................... 18 2. A vendor who has failed to exercise reasonable care in the sale of his product is subject to liability for harm resulting from such negligence to the' person or property of any person who nay be inspected to use the product sold or be in the vicinity of jits probable use. (a) Cases holding vendor liable for personal injury or property damage to remote parties ....................... 18 b) Oases Balding vendor not liable to remote parties ....... 18 c) General):. references .......................................... ............................ 18 c- --*--*.................................... -- 18 3. A vend&s-'Hhp, pats out a product as his own product is subject to the liability', of a- manufacturer. (a) Cases tjthare this rule was,applied .......................................... 18 (b) Cases, holding vendor not liable as manufacturer ......... 19 (c) General references ...................................... 19 d- ................................................................. 19 4. The violaticjin. of a statute which is designed to protect the public against the type of term which has occurred may be neglig.mee in itself. (a) Cases lidding vendor liable for statutory violation........ 19 (fa) Cases holding vendor not liable where statute was inter preted !as inapplicable .................................. 19 (c) Oases holding vendor not liable where violation of Statute was not the proximate cause of the injury com plained of..................... ............................................ ......... . 19 (d) Generai references .............................................. ....................... 20 5. A vendor may be negligent by:, failing to give an appropriate warning or caution of any danger incident to the normal use of the pidduct, sold which a useir would not ordinarily discover, where:t|he vendor knows or has reason to know of the danger. (a) Cases holding vendor liable for failure to warn of dan- fers in the use of products sold ............................................ 20 ases holding vendor ncjt liable where he did not know or have reason to know of danger in the use of products 20 (c) Gases holding vepdor not liable where user knew or could have dlscovated danger ........ ..................................... 20 (d) Cases holding vendor ncrt liable where inadequate warning S: not'proximate cause) of injury complained of ................ 20 ass balding vendor nqt liable where the danger was fattso (by the particular profession using the product .... 20 (f) (general references ...................................................................... 20 6. A vendor whp undertakes to n(ake claims for the safety of a product whijch he sell may bje negligent- by failing to ascer tain the truth and accuracy iof such representations when they are in fact false or inaccurate. (a) Cases holding vendor liable for negligent misrepresenta tion ........................................................................................ 21 (b) Cases holding vendor not liable .............................................. 21 (c) General references ...................................................................... 21 7. A vendor may be negligent in selling a dangerous product where a harmless one is requested where a user would not ordinarily discover the mistake. (a) Cases holding vendor liable under this principle ........ 21 (b) Cases holding vendor not liable under this principle .... 21 (c) (Seoerdl references ...,............................................................... 21 8. A vendor may be negligent by selling a product which he knows or has reason to know to be)unsafe for its intended use. (a) pases holding vendor liable under this principle ........ 22 (bj Cases holding vendor not liable under this principle .... 22 (c) General references ...;..................... ............ ......... .................. 22 iv C. Special Problems in. tteglioence Cases Involving Vendors in General a. Damages .............. ........................................................................................... 22 (a) Cases where damage awards were not set aside as ex cessive .......................................................................... .......... .. 22 (b) Cases where damage awards were reversed on other grounds (c) Cases where damage awards were set aside as excessive .. (d) General references .................................................................... b- ggaLrifrutoicx......................................... (a) Cases where contributory negligence was found ............ . (b) Cases whpre contributory negligence was not found ...... (c) Genera 1 references ..................................... c. iriLsmto-JalifiBna .......................................... (a) Gases hojlding intervening negligence no defense ........ (b) Cases where intervening negligence was a defense ....... (c) General References ..................................... d. Mlsiaiss......... ............................................................................................. e- Disclaimers of Liability for Negligence ......................... (a) Casas holding a disclaimer effective ................................... (b) Cases holding disclaimer ineffective ................................... f. (c) General ar.e.fe.r.e.n.c.e.s............................................................................ (a) Cases invoking the rule of res ipsa loquitur .................... (b) Cases holding the rule inapplicable .................... (c) General references ......................................................... ........... g- Mi........................................ . h. aijcel.LaneflMS,,-aOEpggetoa ...................................................... Section 3. Liability of Vendors of Chemical Products for Breach of Warranty a. gepeEal .Bas.iS-Pf., Utility ........................... ........................................... 27 1. A manufacturer is subject to liability for breach of either an express warranty or a warranty implied by law without regard to the question of negligence. b. Extent of Liability ................................................. ................................... 28 2. A manufacturer is generally subject to liability in warranty actions for harm resulting from a breach of warranty to the person or property of any person who is in privity with him .. (a) Cases holding manufacturer liable for personal injuries or property damage to remote parties .................... 28 (b) Cases holding manufacturer not liable to remote parties on the ground of lack of privity ............................................ 28 (c) General references ....................................................................... 28 3. A manufacturer who undertakes to make representations regard ing his product upon which a purchaser justifiably relies as an inducement to the purchase of the product is under the obligation to make such representations good. (a) Cases holding manufacturer liable for breach of express warranty ................................ ......................... .. 29 (b) Cases holding manufacturer not liable for breach of ex press warranty .......................................... 29 (c) General references ...................................... 29 4. A manufacturer has under certain conditions an obligation im posed by law )to make his product of a merchantable quality and reasonably fit for the particular purpose for which it is bought. (a) Cases holding manufacturer liable for breach of implied warranty ................................................ 30 (b) Cases holding manufacturer not liable for alleged breach of implied warranty ........................................................... . 30 (c) General references ...................................... 30 B. Liability of Vendors other than Manufacturers for Breach of Warranty 1. A vendor is subject to liability in warranty actions for breach of an express or implied warranty of a product which he sells irrespective of whether he has exercised reasonable care in the sale of the product. b. Extent of Liability 2. A vendor is generally subject to liability in warranty ac tions for harm resulting from a breach of warranty to the person ox property of any person who is in privity with him. (a) Cases holding vendor liable for personal injury or property damage to remote parties ...................................... (b) Cases holding vendor not liable to remote parties on the ground of lack of privity ......................... (c) General references ..................................... ExBres^JteaaStSS, * i ................. .......................................................... 3. A vendor who undertakes to make representations regarding a product sold upon I which a purchaser justifiably relies as an inducement to the purchase of the product is under the obli gation to mate such representations good. (a) Cases holding vendor liable for breach of express war ranty ......j ------- - (b) Cases holding vendor not liable for alleged breach of express warranty ...................................... (c) General references .................................... d. Warranties,Imposed by[Law ...................................................................... 4. A vendor has under certain conditions an obligation imposed by law to sell a product which is of a merchantable quality and reasonably fit for the particular purpose for which it is bought. (a) Cases holding vendor liable for breach of implied war ranty of quality or fitness ................................................. (b) Cases holdind vendor not liable for alleged breach of implied warranty of quality or fitness ............................. (c) General references .................................... C. Special Problems in Warranty Cases involving Vendors in General Damages (a) Cases involving the measure of damages in warranty . (b) Cases where damage awards were not set aside as ex cessive . (c) Cases inhere damage awards were set aside on other grounds , (d) Cases where cjamage awards were set aside as excessive (e) General references .................................... b. Contributory Meallaendia ........................................ (a) Cases where dbntributory negligence was found ......... (b) Cases inhere contributory negligence was not found ..... (c) General references .................................... Allergies ................................... (a) Cases: Miere pecovery was denied to an allergic plain tiff ........j........................................................................ (b) Cases where Recovery was allowed to an allergic plain tiff .... (c) Genera1 references Disclaimer ...of. (a) Cases holding.a disclaimer effective (b) Cases holding disclaimer ineffective *fc) General references .................. e. Notice.of Breach of Warranty f. Miscellaneous.. Enln.ts_g|E-rflsadiffie 31 31 31 31 31 31 31 32 32 32 32 32 32 33 33 33 33 33 33 33 33 '33 33 33 34 34 34 34 35 35 35 35 36 ABI_H Section 1. Product Liability Decisions involving Pesticides (including Agricultural and Household Insecticides. Fungicides. Rodenti- eides. Herbicides, and Disinfectants) ....................... 37-47 vi Section 2, Product Liability Decisions involving Fertilizers Section 5. Product Liability Decisions involving Household and Industrial Cfcaslala................................................................................................... Section 6. Product Liability Decisions.involving Mi scellaneous Products (including Contaminated Food. Explosives. Seeds, and other .tfeiJSB ....................... .................... 48-50 51-55 56-60 61-71 72-76 TABLES Table of Cases Arranged under the Specific Chemicals and Chemical Products Involved ........................... ........... .......... ................................... ......................... ,-l - A-9 Table of Cases (arranged alphabetically) ............................................................ 1-1 - B-7 vii JJ52, SUPPLEMEtg. MANUAL QF CHEMICAL PR.ODUCIS__LIMimi This supplement contains the court decisions and other legal material per taining to chemical products liability which were published during the year 1952. It is the first supplement to the Manual of Chemical Products Liability. Fifty-one annotations are included in this supplement for insertion after Part I following page 36. Twenty-seven decisions are digested for insertion in Part II following the particular section to which the decisions refer. Seven of these decisions relate to pesticides, one to fertilizers, three to drugs, four to cosmetics, five to house hold and industrial chemicals, and seven to miscellaneous products. A table of cases arranged under chemicals is included as a supplement to the table on page A-l. A table of cases arranged alphabetically is included as a supplement to the table on page B-2. Bijectlons..for_ Inserting Pages of this Supplement Repoye present pages Insert pages of 1952 Supplement None None 47-48 49-50 55-56 59-60 71-72 75-76 None None viii (this sheet) 36-1 - 36-2 - 36-3 475 47-1; 47-2; 48 49-50 55-56 59-60 71; 71-1; 72 75; 76; 76-1 A--10 B-8 viii (1952 Supp.) 1953 Supplement MANUAL OP CHEMICAL PRODUCTS LIABILITY This supplement centains tne court decisions and other legal material pertaining to chemical products liability which were published during the year 1953 and the first three months of 1954-* It Is the second supplement to the Manual of Chemical Products Liability. Thirty-four court decisions are annotated in this supplement for insertion after part I following page 36. These decisions have been integrated with those annotated in the 1952 supplement for convenience of reference. Twenty-seven decisions are digested for insertion in Part II following the particular section to which the decisions refer. Fifteen of these decisions relate to pesticides, three to drugs, and nine to cosmetics and soaps. A table of cases arranged under chemicals Is included as a supple ment to the table on page A-1-. A table of cases arranged alphabeti cally is included as a supplement to the table on page B-2. Each of these tables has been Integrated with the tables in the 1952 supplement Directions for Inserting Pages of this Supplement Remove present pages Insert pages of 1953 Supplement None 36-1, 47-2 55 None A-10 B-8 36-2, 36-3 lx (this sheet) 36-1 to 36-7 47-2, 4-7-3, 4-7-4- - ,55 60 1 60-2 A-10, A-ll B-8, B-9 rf S l<3 IM .*1 ix PART I Section I. Introduction Theories of Recovery in Chemical-Products Liability Cases 'f The law of product liability presents some of the most vital and intricate problems which face the chemical manu facturer. Within its framework lies vestigial remnants of law which have long lost contemporary applicability as well as recently developed principles which reflect the force of the economic changes which have occurred during the last few decades. In no field of private litigation is the current of public policy more dynamic. Any analysis of the law of product liability must, therefore, be premised upon! a consideration of the historical development of the law and contemporary public policy. The limited purpose of this Manual and limitations of space unfortunately preclude any attempt to cover except in a cursory manner these extremely important factors. It is proposed to consider briefly/in this introductory section: the more Important and controversial principles of law which have present-day applicability in bhemica1-products liability cases with emphasis upon the most noticeable trends in the law. A more detailed consideration of the basic principles will be given in Section 2 and Section 3. The chemical manufacturer has a basic responsibility to the purchasing public to assure that the products which he manufactures and places on the market for sale are saf and efficacious for the purposes for which they are sold. Failure to discharge this responsibility opens the door to the typical product liability suit. A farmer uses an insecticide on his cottoh crop and it damages the cotton or fails' to kill the bugs. A housewife applies a cosmetic, to. her face and her face later swells and pains and a serious skin condition results. A mechanic opens a can of cleaning fluid and it exploded in his eyes.- ft supposedly harmless drug is administered to a child with fatal consequences:. Assuming the establishment of a causal-connection between the product and the injury, the question arises .as to the .principles.of law which would be applied' lh determining.;whether the farmer, housewife, mechanic, or the ehi:ldJs estate should be allowed to-recover against the. manufacturer: of the product causing the harm. The manufacturers, liability for personal injuries or economic loss sustained- as a result of placing on the market a dangerous or defective product may be premised on either .or both of two separate theories of action or recovery, i.e., negligence or breach; of warranty, the theories themselves are not mutually exclusive and are commonly employed jointly or in the alternative. In'most jurisdiction^ an action can he brought oa the: ground of negligence and recovery allowed ' for breach Of itsarr&nty If the proof falls to1 support the orn|er but does support the latter. Since the measure of damages is generally the same under either theory of action, the plaintiff's selection of a particular thedf` depends; bpein- maay. factors such as the substantive law of the particular jurisdiction where the suit can b#;brought and: questions of proof. For. Example, an action of negligence.may, ba necessary to avoid the requirement of privity where a remote (jarty-plaintiff is1 concerned. On the other hand, the difficulty :of proving negligence in a particular Casa may force the choice of an action in warranty. An action in warranty may be necessary to avoid the statute of limitations which is usually shorter for tort claims than -contract claims. Where personal injury has re sulted In death, recovery Under the applicable wrortgful death statute may be limited to negligence actions. Procedurally, an action in negligence may have the Advantage in a particular jurisdiction of avoiding counterclaims of a con tractual natpre or Of avoiding the use of certain defenses available in warranty suits such as Infancy, the statute of frauds;-:, or .disahasg-e- in'- baflkrmj!Aery. The negligence theory of recovery has found frequent and varied application in product liability cases involving chemicals. There are, however, certain types of conduct which are persistent enough to warrant separate mention. These forms of negligence may be summarized as followss (1) The manufacturer has failed to exercise due care in the selection and purchase of ingredients for incorporation into the finished product, (2) The manufacturer has failed to exercise due care in the adoption of a formula which will produce a finished product which is safe and efficacious for the use for which it is sold, (3) The manufacturer has failed to make proper inspections and tests during the course of manufacture and after the product is finished and ready for distribution, (4) The manufacturer has failed to label his product with appropriate warnings and directions for use or has care lessly made false and misleading representations on the label or in advertisements and sales literature as to the safety and efficaciousness of the product, (5) The manufacturer has failed to exercise due care in the packaging and preparation of his product for distribu tion and sale. Generally, the manufacturer is not liable when he has exercised reasonable care in placing a safe and efficacious product on the market, when the plaintiff's careless conduct was the proximate cause of the injury complained of, or when the manufacturer has effectively disclaimed liability. I Specific Types of Warranties On the other hand, the warranty theory of action is not premised on.the negligent conduct of the manufacturer but derives its force from the fact that the manufacturer has placed on the market an unsafe or inefficacious product de spite an express or implied representation to the purchaser- that it is safe and efficacious. If a product results in damage or economic loss when put to its intended use, the sole question which concerns the court is whether the manu facturer has warranted to the contrary. The court is not concerned with the diligence of the manufacturer in conduct ing proper tests before marketing his product, or in adequately labeling or packaging it. In the majority of jurisdictions, the Uniform Sales Act is in force. This Act, which is largely a codification of the common law of sales, prescribes the conditions under which a manufacturer or other seller is held to have warranted his product. The warranties prescribed in this Act and encountered in chemical-products liability cases fall within 1 :he usual classification of (l) express warranties, and (2) implied warranties. (1) The manufacturer is held to have warranted the safety and efficaciousness of his product when he makes any af firmation of fact or' premise relative to safety or efficaciousness whose natural tendency is to induce a purchase of :he product and which is relied upon by the buyer in purchasing it. Puffing statements or expressions of opinion are lot express warranties, although it should be recognized that the line between acceptable exaggeration and deceptive iffirmations of fact is often difficult to draw. Generally, the manufacturer uses labels or labeling as the media for making such warranties, whereas other classes c if sellers, such as dealers who deal directly with the buyer, warrant orally or in the invoice of sale. Warranties lay also arise from statements made in advertising and sales literature. (2) Even in the absence of an express warranty, the manufacturer is held to have warranted that his product is of lerehantable quality and, under certain conditions specified in the Uniform Sales Act, that it is reasonably fit for :he particular purpose for which it is bought. A product is generally held to be unmerchantable where it is unsafe * ir inefficacious for its intended use. These warranties of merchantability and fitness for use are implied by law tad imposed for reasons of public policy. The most usual defenses available .in warranty actions are that the plaintiff's careless conduct or misuse of the iroduct was the proximate cause of the injury cbmplained of, that the manufacturer has effectively disclaimed liability, >r, in most jurisdictions where implied warranties are involved, that the manufacturer and the plaintiff did not direct- .y deal-with' .each other in the .sale af the pxodiiet and that, therefore, privity of contract is lacking. We may now consider some of the more pressing problems in chemical-products liability law which affect the manufac turer. * Contemporary Problems in Product-Liability Claims An analysis of the present law of chemical-products liability indicates that there are six problems of contemporary significance to the chemical manufacturer in prbduct liability claims which are the most persistent. They may either iffect the manufacturer from a preventative standpoint in minimizing the risk of product injury, or, if injury has iccurred, in settlement negotiations and in the' preparation of the defense after an action has been brought. These iroblems may be summarized as follows; (1) The duty of the manufacturer to label hia products adequately and accurately, (2) The duty of the manufacturer to test his! products adequately before placing them on the market, (3) The duty of the manufacturer to comply with the statutory requirements-regulating the sale and distribution of ds products, (4) The right of the manufacturer to avoid liability through the use of appropriate disclaimers, (5) The effect of the lack of privity as a bar to a suit by a remote party against the manufacturer, and, (6) The use of the theory of strict liability as a device to impose liability on the manufacturer regardless of the mount of due care which he exercises in assuring safe and efficacious products. i (1) Adequate and Accurate Labeling Problems of adequate and accurate labeling have been accentuated in recent years by the passage of federal and state | .egislation controlling the types of label statements which are required for various classes of consumer products. ' At the federal level, the Federal Food, Drug^ and Cosmetic Act*- provides for the branding of food, drugs, and cos- letics, which are shipped in interstate commerce, with certain affirmative information and prohibits the false and mis- .eading labeling of these products. The Federal Insecticide, Fungicide, and Rodenticide Act2 regulates the labeling of jg topsehold and agricultural'insecticides, fungicides, rodenticides, herbicides, disinfectants, and other economic poisons. Tie Federal Caustic Poison Act^ regulates the libeling of certain specified caustic and corrosive substances. Regula- :lons promulgated by the Interstate Commerce Cajamission4 prescribe the labeling required for certain types of explosives ind inflammables shipped in interstate commerce. At the state level, there are comprehensive laws in each state regulating the labeling of food, drugs, cosmetics, >esticides, poisons, fertilizers, inflammables, explosives and other chemicals. Many of these laws are supplemented by .ocal ordinances. These statutes and administrative regulations dictate what the manufacturer must show on the labels or labeling of # ihemical products sold in interstate and intrastate commerce. They do not represent, however, the complete glossary of :he manufacturer's duty to label insofar as potential civil liability is concerned. The common law obligation of ade- [uate disclosure of the dangerous properties of! a product is generally broader than that which may be prescribed by itatute. Compliance with the labeling provisi s of a public lqw or the use of a label which has been approved by a lovernment official pursuant to statutory auth< Ity may not amount to compliance with the common law standard and civil lability may result. The point is strikingly llustrated in the recent Pennsylvania decision. Maize v Atlantic Refin- .no Co.t which held that the fact that the lab' 1 on a container of carbon tetrachloride had been approved by the Sur-* I. leon General of the United States was not coir tiling on the question of its adequacy in a product liability suit. lore liberal view was apparently taken in an Her Missouri decision,..M...e.C...l.a..r.e..n....v....G......5.....R...o..bins & Co. Pretermitting the evidentiary force of compliance or noncompliance with the labeling provisions of an applicable lubllc law, the common law duty to label generally pivots around three cardinal principles, viz: (1) The manufacturer has a positive duty to ^ram the public by appropriate labels or labeling of any dangerous proper- lies in his product which would not be apparentj and understood in the absence of such disclosure, (2) The manufacturer has a positive duty to instruct the public by appropriate labels or labeling of any directions !or use which may be necessary to avoid unintended results, 52 Stat. 1040 , 21 U.S.C. 301 si sea. 1. 61 Stat. 163, 7 U.S.C. 135 et sea. I. 44 Stat. 1406, 15 U.S.C. 401 tj& sag. See, for example, 49 C.F.R. 73.401. >. 41 A. (2d) 850 (Pa., 1945) >. 162 S.W. (2d) 856 (Mo., 1942) c 2 (3) The manufacturer who undertakes to make claims expressly or by implication for the safety or efficaciousness of his product must assure that the claims are not false or misleading. Unlike the two preceding principles, this principle is encountered in warranty actions as well as negligence actions. The earlier chemical-products liability cases generally Involved the failure of the manufacturer to label his prod uct with a statement of its nature and character to show that it was dangerous or that it would be dangerous under cer tain conditions or when put to specific uses. The principle was invoked in numerous cases involving such articles as stove polish, drugs, oil stain, insecticides, insecticide sprayers, sparklers, inflammable combs, benzol, cleaning sol vents, and waterproofing compounds. Modern merchandizing practices have relegated these types of labeling problems to a plane of relatively minor im portance. Labels and labeling have been depended upon more and more in recent years to serve as a selling device to secure consumer patronage in a competitive market. Accordingly, there has been a shift in industry's attitude from reluctance to label a product with sufficient information to enthusiasm for detailed and attractive labels. Today, the manufacturer wants to tell the prospective purchaser what his product is and what it will do. It is this second feature of labeling, i.a.- statements showing the functional properties and advantages of a product, which presents the most formidable., contemporary problem. In product liability cases today, where packaged consumer products are involved, the manufacturer is frequently sub jected* to liability on the ground that he hab carelessly made statements on the label or in advertising and sales lit erature' that a product is safe or efficient for certain purposes when in fact it is not, or that he has made such state ments which are in fact false after a careful attempt to assure .their accuracy. If the representations have been neg ligently made.,, liability is Imposed under thie;.separate tort of negligent misrepresentation. If the representation has been made in -tfae.^ex&ecis; of due '.care, liability may be imposed under the theory of a breach of express warranty. Ebers v General Chemical Co."is the leading decision in recent years in which misrepresentation constituted a sub stantial basis for aliessibi recovery against! a chemical.manufacturer. In this case, the manufacturer was. held liable for representing in a pamphlet which actsofflpahied the sale of his insecticide product .that the insecticide was, safe for use so peach trees, whewas,. it. in fact damabd peach trees when. used as directed. Generally., misrepresentation. from -,tfie manufacturer* enthusiasm fdr the potentialities of his product from a selling standpoint. However, -thetarare instances where mislabeling is traceable to other motives. The point is well illustrated in the case of Rease Sltel-alr: Refining Co.78 9where a harmless bottle of water was innocently labeled as kerosene. The bottle which vraspprtof a tipphar S exhibit was used by the plaintiff as kerosene and an explosion re sulted. The court allowed recovery for the Hsuiting personal injuries on the ground that the plaintiff was justified in placing reliance on the aecturapy of the s|fcptement on the manufacturer's label. Frequently, liability Is based on the ground that the'manufacturer has breached an express warranty of safety or efficiency made oft the Isabel <Jf his product of in sales literature, or made orally in direct dealings with the injured party. Thus, chemical manufacturers have beep held liable fete placing on the market unsafe products which were labeled "not poisonous to human beings," or represented orally as safe,10' 1a1 1w2 ell as inefficacious products which were labeled- with a guarantae-'-of .quality Before: passlog fraath subject of the adequate and correct labeling of chemical products, three important rules of construction, .which gold# the courts in.determining whether a particular label is or is not proper or whether statements thereon cons-tatutfe axpretes. wwanties may profitably be noted.. First, the sufficiency and accuracy of a label depends upon the interpretation which would be placed upon it by the average purchaser, or-by-a specific class of| purchasers, after reading the label in its entirety and in context. Single words or phra-sss. might be so explained by other language on the label as to avoid any misrepresentation or warranty which would otherwise attach. On1 the other tend, isolated sentences or words when read in context with other state ment on the label may bs misleading and resjult in a misrepresentation or warranty which would not otherwise attach. Second, a: -label aay ..be. true in the-Strict! sense of the word but deceptive to the average purchaser, or to-a specific class of purchasers, for whose use a product! is intended. Ambiguity and indirection must be avoided to the same extent as unequivocal i&lse .stalwarts or' naa-disolbsure. Third, sweeping label - claims in. broad, general terms will be construed strictly against the manufacturer. Labeling claims of .fuhct-ional uses and'; advantages musjt therefore be restricted to the specific or face the possibility of being construed to ewe* otliser-matters not. intended. (2) Adequate Pre-testino A second prime contemporary problem in chemical-products liability cases is raised by the common law duty of the chemical manufacturer to test his product properly before it is placed on the market, where the potential danger of the product is unknown or where it is known to involve a risk. The breach of this duty is generally in issue in actions premised on negligencel The necessity for pre-testing and the adequacy of testing once it is undertaken are gauged according to the rule of reason which variesi with the nature of the product involved and the circumstances attending its manufacture and distribution. Two important recent cases involving pesticides bear on the subject of pre-testing and sharply illustrate the prin ciples of law which are likely to be applied in chemical-products liability cases where new chemicals are placed on the market. Ebers v General Chemical Co.1^ is perhaps the landmark decision in this field. In this case, an insecticide manufac turer was held liable for damage to plaintiff's peach trees arising from the use of the manufacturer's insecticide. Prior to sale, the manufacturer had tested the product and had followed the recommendation of the Department of Agri culture that the product was safe1 for use onjpeach trees. The recommendation was based on field tests conducted in various states. However, no field tests were made in the state of Michigan where the damage was caused. The court held that it was proper for the jury to decide whether the manufacturer was negligent in not testing his product in Michigan under the soil and climatic conditions in that state before distributing the product in Michigan. 7. 17 N.W. (2d) 176 -.(MiSh., 1945) 8. 104 F (2d) 183 (M.Y., 1939) 9. Simpson v American Oil Co., 8 S.E. (2d);813 (N.C., 1940) 10. Ingraham v Associated Oil Co., 6 P (2d) 645 (Wash., 1932) 11. Free v Sluss, 19T P. (2d) 854 (Cal., 1948) 12. Supra, note 7. 3 The Ebers case would appear to stand for- two principles of primary importance to the chemical manufacturer: (1) It is a question of fact for the jury to decide whether adequate pre-testing has been conducted prior to the sale of a chemical product. (2) Extensive pre-testing of a product may not relieve the manufacturer from liability if it has not been performed under the local conditions prevailing in the jurisdiction where damage is caused. The second case on this subject is Chapman Chemical Co. v Taylor.1^* In this case, the court held that the failure of a herbicide manufacturer to test his product for its drifting propensities before sale constituted negligence in itself and rendered the manufacturer liable for property damage caused by the product when it drifted. Although the opinion of the court spoke in terms of "absolute liability," the decision actually stands for the proposition that the failure to test a chemical product prior to sale may be negligence per se, instead of a question to be determined by the jury. There was a forceful dissenting opinion in the;eiaaaaart Chemical Co. case which expressed concern over the extension of strict liability in cases of this nature. (3) Reference has been made to the impact of the public laws regulating the manufacture and sale of chemical products upon the civil liability of the manufacturer insofar as questions of adequate and accurate labeling are concerned. However, these laws in many cases prescribe other controls and prohibit types of conduct other than mislabeling which are of importance to the manufacturer or otherjseller when he'fices a product liability suit. A druggist sells a dangerous drug without making Inquiry as to the purchaser's appreciation of the risk as required by the applicable state pharmacy law. The purchaser takes a fatal dose of the drug. The estate of the deceased sues the druggist for wrongful death on the ground ^hat the druggist was negligent in making the sale to the deceased. There are no facts which would permit the inference that the druggist was negligent. However, the druggist has violated the pharmacy law in making the sale. An insecticide manufacturer sells uncolored sodium fluoride which is consumed by an innocent purchaser mistaking it for common salt- State law required the coloring of sodium fluoride. The purchaser sues the manufacturer for personal injuries on the ground that it was negligence tfo Sell a dangerous poison which could be mistaken as harmless salt. There are no facts which would permit an inference of negligence on the part of the manufacturer. He has, however, violated the public law regulating the sale of sodium fluoride. In both situations, the negligence of the manufacturer would be established, partially or conclusively, on the ground of a statutory violation of a requirement which was designed to protect the public from the type of harm which actually resulted. The rationale of negligence Is that the legislature has prescribed by statute the standard of due care which should be utilized in civil litigation as a yardstick for determining the existence of negligence or breach of the im plied warranty of-merchantability. There is some uncertainty anti conflict in the decisions as to what the evidentiary effect of non-compliance with the 1 requirements of a public law should be on the issue of negligence. Some courts take the position that such non-compli ance should be regarded as evidence of negligei-joe which should be weighed by the jury in the light of all the circum stances Involved In a. particular case. Howevei, the doctrine now generally supported in the majority of jurisdictions g is that such conduct is negligence per se and Renders the manufacturer liable without the actual proof of specific neg- ligence. Although this question is generally litigated in damage claims premised on negligence, it has been held that the im plied warranty of merchantability includes compliance with the Statutory requirements of law and that non-compliance may result in recovery on the basis of a breach of ithis warranty.143 * (4) through Disclalme.Es A fourth significant problem in chealcal-prCducts liability law involves the right of the manufacturer to avoid lia bility for negligence or breach of warranty through the use of disclaimers on the labels of his products dr in contracts and invoices of sale. This question becomes Increasingly important with the development of a strong pro-plaintiff atti tude in product liability suits. The courts generally bold that clear and explicit language is required to absolve a person from liability for his own neglect. One cannot disclaim for negligence unless it is established (l) that the cause of the injury was specifically excepted against, and (2) that knowledge of this was brought hate to the claimant. A less strict attitude is adopted in evaluating the effect of disclaimers of warranties. Three decisions involving chemical products ispell out the principles of law which fairly typify the judicial approach to this question. In the first of these, T.. rsnPant da Memodrs & Co.. v Barldon,15 1t6he use of a fungicide resulted in property damage to the bulbs to which it was applied. In a suit brought against the manufacturer, the manufacturer based its defense partly on the ground that a provision on the label of the product disclaimed liability arising from the use of the prod uct. TM he provision read: "The use of Semesan being beyond the control of the manufacturer, no guarantee, express or implied, is made as to the effects of such use, whether or not in accordance with these directions or claimed so to be." The court held that, as a matter of construction, the disclaimer did not operate to relieve the manufacturer of lia bility for damage caused to crops as it was designed to cover the consequence of inefficaciousness. Under the theory of the Barld.pn case, therefore, disclaimers as to the "effects of use" relate to the efficiencyof the product but not to its safety. _ The apparent harshness of the law of the Baridon case has been somewhat tempered in Gibson v California Sorav- Ihemical Coro.1" and to a greater extent In Charles Lachman Co. v Hercules Powder Co.17 ^ " 13. 222 S.W. (2d) .820 (Ark., 1949) 14. Manning Mfg. Co. v Hartol Products Corp., 99 F. (2d) 813 (vt., 1938) 15. 73 -F (2d) 26 i: (Iowa., : 1934) 16. 188 P. (2d) 316 (Wash., 1948). See also, Charles Loromi & Son v Globe Laboratories, 95 P. (2d) 173 (Cal., 1939) (disclaimer reading "since we have no control over diagnosis, method of administration, or handling of this serum ( 4 The decision in the Gibson case illustrates the manner in which the manufacturer can effectively avoid warranty liability even where the safety factor is involved by appropriate phraseology in the disclaimer. In this case, a pro vision in the bill of sale of an insecticide read: "California Spray-Chemical Corporation guarantees the above material sold to be true to label, if labeled, but makes no other representation or warranty,' express or implied, and shall not be held resjjmsible-farLanyi-Ijn.iury_iaSMling from the use or handling of said material whether or. not used in accordance with directions. When, mentioned, results from use of the corporation's products are given for information only. Mo representative of the corporation may vary any of the foregoing and the buyer hereby accepts said material subject to all the terms hereof." (italics added) The court held that this provision effectively disclaimed liability arising from damage to crops. In the third decision, Charles -Laehaan Col v Hercules Powder Co.. a disclaimer, as follows, relieved the manufacturer of a chemical product from liability for alleged negligences "Buyer assumes all risk and liability lihatsoevar resulting from the use of such materials....Seller makes no warranty of any kind, express-or implied, except that the materials sold hereunder shall be of Seller's standard quality." It should be recognized that questions of public policy inevitably play an important role in the court's disposition to particular disclaimers where recovery is bought on the ground of the manufacturer's negligence and in a representa tive amount of product liability decisions disclaimers are held absolutely void on the ground that a manufacturer should not be permitted to relieve himself of the pdblic responsibility of due care. However, the argument would seem some what tenuous when it is recognized that the doctrine of assumption of risk has long been countenanced In the law of neg ligence, and this doctrine closely assimilates the principles.involved in disclaimers. If a disclaimer.is specific enough to inform the public of the reservations which the manufacturer may have as to the safety or efficacy of his product, it should follow that a buyer under isuch circumstances assumes the risks covered by the disclaimer. It is interesting to observe, however, that this approach has not been taken in the decided cases. There are two further.-questlong relating to.the subject of disclaimers which should be mentioned in connection with the use of disclaimers to avoid: liability from arising for a breach of an express or implied warranty. First, where express warranties, are made on the labels of a product or otherwise play a role in the sale they cannot be effectively -disclaimed according to the trend of the more recent decisions. A statement on a label that a product is "safe for use," for example, has been held to constitute an express warranty that if the product is not safe the man ufacturer agrees to complinsate fob any damages resulting therefrom. It has been held that such a statement could not be disclaimed by another statement that the "usi of the product being beyond our control, we do not make any warranty ex press or implied, as to the effects of such dse." Yet, if warranties are ex contractu and stem from the understanding of the seller and buyer as to'the tennis and implications of the transaction, it is difficult to appreciate a rule of law which renders it impossible for the seller to disclaim liability in the event that the product does not perform as stated on the label. .If a buyer has both the Warranty and the disclaimer before him he should be estopped to thereafter depend on the express warranty as a basis for a dam4ge claim. It may be Suggested that the confusion which thus appears In this aspect of product liability law has beeti engendered by the feeling that the average consumer does not fully appre ciate the operative effedt of a disclaimer. This underevaluation of the bargaining position of buyers has been perhaps the most serious impediment -to the natural evolution of the law of warranty. Second, there are a fewcourts'which have taken the position that implied warranties cannot be disclaimed on the ground that they are Imposed1 by the. law and tfhat it is not open to contracting parties to limit the ambit of public policy. This view has not been gjmaesily acpepted. (5) Concept of Privity The liability of a manufacturer to a person other than the one directly supplied, as, for example, in a product lia bility suit in which a purchaser from a retail dealer seeks recovery against the manufacturer, has in the past posed difficult problems which have not been completely erased. The problem was created by dicta in an early English de cision1 which led courts in England and the United States to adopt the rule that a remote party could not maintain a negligence action directly against the manufacturer since there was no privity of contract between the parties. Of course, this rule confused principles of contract with principles of tort -but it was sustained for over a century by the force pf stare decisis. . Early cases in this country developed exceptions to this general rule, the principal one being that a remote party could recover against a negligent manufacturer where the product which caused injury to the remote party was "inherently dangerous." This term came, to include such articles as food, drugs', explosives, and chemicals. ft'was not until 1916- In the landmark decision? by Judge Cardozo in MacPherson v Buick Motor Co.^ that the general rule began to erode. In this case, which involved the liability of an automobile manufacturer to a remote purchaser who'was injured by reason of a defective wheel on the automobile, the New York Court of Appeals held the manufacturer liable for negligence de-spite the'absence of -privity. The .court pitched its decision on.the ground that the traditional tort theory of foreseeability rat.her than the technical concept of privity should apply'to the manufacturer as well as 'to any other tortfeasor. In the words'of the court: ... - - "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. It's 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 usecf"without new tests, then,' irrespective -of..contract, the manufacturer ' of this thing of danger'is tinder a duty to make it carefully..17 * * .after it leaves our possession, we waive, all responsibility following' its. use'! held effective in warranty action based oi inefficaciousness,) ' '. 17. 79 F. Supp, 206. (Pa- ,.1948) -. 18... Winterb'ottom.v'Wright, 10 M. & W. 109 (Eng., 1842) 19.'-111 M.E. 1050 (M.Y., 1916) ' ' - '' 5 The rule of the MacPhgrson case is now followed in nearly every jurisdiction. Under its rationale manufacturers have been held responsible to remote parties for the negligent manufacture of such articles as combs, paint, perfume, inflammable dresses, hair dyes, insecticides, cigarettes, gasoline stoves, sanitary napkins, and electric appliances. Although the MacPherson case was limited to the question of the liability of a manufacturer of a .finished product to a remote purchaser for personal,injuries, it has been extended to subject to liability manufacturers of component parts cof finished products or ingredient suppliers, and in favor of purchaser's employees, members of the family and other users, and for property damage as well as personal injuries. How directly the historical concept of privity influences the present law of negligence may be seen from the fact that a few courts yet approach the question fifom the standpoint of the dangerous nature of the product involved and speak in terms of whether the product is "inherently dangerous" but actually dispose of the case under the traditional $ negligence test of whether the harm caused was reasonably foreseeable by the manufacturer. It may be said that the only contemporary Vitality of the concept of privity is evinced in warranty actions. In warranty actions- the problem is mare acute. Four factual situations may be noted which;fairly typify the problem where the theory of recovery is breach of war ranty, Viz; (A) A .purchaser from a retail dealer who is not a factor or consignment merchant sues the manufacturer, (B) A member of a purchaser's family (purchasing either directly from a dealer or from the manufacturer) sues the manufacturer, ^ (C) An employee of a purchaser sues the manufacturer, (D) A purchaser from the manufacturer sues the manufacturer. Under the prevailing rule in most jurisdictions, the manufacturer would not be subject to liability in situations A, 8, or C in a warranty action since there is a lack of privity with the party-plaintiff. The rule is based on the traditional- contractual theory that third parties cannot take advantage of the rights and liabilities flowing from a contract which they did not make. Two important caveats must be attached to the general rule, however. First, there is an increasing tendency of the courts to either disregard the lack of privity between the manufacturer r and a remote'party or to find, by legal .Legerdemaim that privity does exist. This trend is especially pronounced in the case, of a salt-by a member of a purchaser's fatally or by an employee of a purchaser. Second, the- manufacturer who undertakes to label his product with a warranty thereby assumes a direct relationship withiremote;.parties purchasing the product and; in such.a situation the lack of technical privity of contract would be no defense by the manufacturer.in a product liability claim based upon a breach of the warranty stated on the label. gpLitoapn y Ataerloan .Oil Co. ^ is the most important chemical case dealing squarely with this question. In this case, the iplaintitf purchased from a retail druggist1 a can of insecticide manufactured by the defendant. The can contained a statement OR the label!-that the product was harmless to human beings. The court, in holding that this warranty extended V in favor of the plaintiff, a remote vendee, stated; "We know of no reason why the original manufacturer and distributor should not, for his own benefit and that i i of course, of the ultimate consumed, make such assurances, nor why they should not be relied upon in good faith, nor why they should not constitute a warranty on the part of the original seller and distributdr running with the product into the hands of the consumer, for whom it was intended." f ^ It may be noted that in most jurisdictions where privity of contract is a prerequisite to the maintenance of a war ranty action, a remote party may sue his immediate dealer and the latter can, in turn, implead the manufacturer or main- tain a subsequent recovery-over action against the manufacturer. Davis v Radford** is the most recent case illustrating this procedural aspect of warranty actions. (6) Strict Liability There have been in recent years many advocates of the desirability of imposing strict liability on the manufacturer, principally the food manufacturer, on the theory that he is better able to assume the financial risk of product liability. Fortunately, however, the concept of strict liability as such has not been applied extensively by the courts in chemical- ^ products liability cases. Under the theory of strict liability, a manufacturer would be responsible for damage resulting from the use of his product even though he had skillfully manufactured it and had taken every reasonable step to assure that it was safe and efficient before placing it on the market for distribution and sale. The manufacturer would be virtually an insurer Of his product. The courts have traditionally tended to confine strict liability to situations involving the keeping of wild animals, or the engaging in "ultrahazardous" or "inherently dangerous" activities such as blasting and the storing of explosives. In at least one chemical-products liability case - E. I. DuPont de Nemours v Baridon^ - an appellate court has reversed a judgment for a claimant on the ground of error in the trial court's instructions imposing an insurer's liability on a . , fungicide manufacturer. However, there axe perceptible trends in the direction of absolute liability which should be noted. First, the theory df implied warranty instead of tort is finding increasing application in chemical-products liability suits. As has been sden, implied warranty is essentially another form of imposing absolute liability. Second, the doctririe of negligence per se, previously noted, frequently relieves a party plaintiff from proving ac tionable negligence on the part of the manufacturer in cases involving chemical products. This doctrine is usually re lied uponl when a statutory violation is Involved. Third,, the doctrine of res ipsa loquitur is being more frequently invoked in product liability cases. Although this doctrine has not been operative on a large scale in chemical-products liability cases, its use in cases involving food products In particular may portend a development into other fields. Where res ipsa loquitur applies, the plaintiff is relieved from proving 'negligence on the fart of the manufacturer so that the end result may be liability without demon strated fault. / _____ _____ _____20 21 22 20. Supra. note 9. 21. 63 S.E. (2d) 822 (NX., 1951) 22. Supraf note 15. 6 Up to the present time the question of absolute liability for damage caused by the use of chemical products has been disoositive in two decisions of present-day applicability, Luthrinoer v Moored and Chacman Chemical Co. v IayioE.243 25 In the T.uthrinaer case, a pest control operator was held liable for personal injuries to the plaintiff resulting from the inhalation of hydrocyanic acid gas which was being used in fumigating operations. Although the operator exercised due care in the fumigating, he was held responsible on the ground that he was conducting an "ultrahazardous" activity. Although this decision did not strictly involve product liability, it has brought into focus a principle which may be used by the courts in shaping the law applicable to the liability of the manufacturer of economic poisons which involve the risk of damage to the property of persons who are not connected with the sale of the product. In the ChapmaniChfintical Co. case,' a herbicide manufacturer was held liable for damage to the plaintiff's cotton which was close to a field being sprayed with the herbicide. The trial court instructed the jury that the defendant was negligent if the herbicide were not adequately tested for drifting propensities prior to sale. On appeal, this .instruction was upheld on the principle ofjabsolute liability for marketing an inherently dangerous product and `Lutteirtcfer..y_Maa& was- cited as controlling authority. However, it is clear that the appellate court actually de cided that the failure' of the manufacturer ito pretest the product constituted negligence per se, although the court spoke in terms of absolute liability. The jdecision represents the striking interplay of the two doctrines. A later decision, .Wal.tpo.,v,,.Sherwin-gilUaBi^.ge.. has considerably limited the doctrine of the ha^aa_Chemical Co. case.' The foregoing discussion has summarized the field of products liability law with emphasis on recent developments and trends which affect the responsibility .'of the chemical manufacturer. The next-section consists of an annotation of the reported decisions and general material under the legal principles which determine the liability of the manu facturer and other sellers in the chain of Idistribution of Chemical products. It should be recognized that these principles- of law are stated, of necessity^ for the purpose of annotation as delusively exact formulas, and oversimpli fied generalizations., These statements of legal principles should be considered primarily as vehicles for the anno tations, rather than as an unequivocal and I exact statement of the law as it exists in all jurisdictions. 23. 190 P. (2d) 1 (Cal., 1948) 24. Supra t note 13. 25. i91 F. (2d) 277 (Ark., 1951) 7 PART I Section 2. Liability of Vendors of Chemical Products for Neal 1nwira B. . Liability of Vendors other than Manufacturers for Negligence C. Special Problems in Negligence Cases Involving Vendors in General c. ft A manufacturer is not an insurer of the safety of his products and is subject to liability in tort actions ilv when he has failed to exercise reasonable care to make his product safe for the use for which it is sold. .thouah in some instances this principle has -bepn avoided bv indirection and a degree of care more commensurate .th that of an insurer has been imposed. Comment: The tort liability of the manufacturer of chemical products is based on the same principles of law as le liability of the manufacturer of less hazardous products. Liability depends upon the absence of due care on le part of the manufacturer in the preparation ind distribution of his product. The degree of care required by w is that of the hypothetical "reasonable man"'under the circumstances. Numerous considerations may play a part : determining whether the requisite degree of cdre has been discharged in a particular case depending upon the par- cular type of negligence which may be in issue; Among these considerations may be the nature of the product in- lved, the general understanding of the character of the product* the customs of the business, the cost and prac- cability of effective testing and inspection, ind the probability of serious consequences flowing from careless imperfect manufacturing methods and processes <. The courts frequently speak of the "high degree" of care which is required of the manufacturer of inherently or minently dangerous products, but this is moreiof a question of terminology than a departure from the established inciples of tort liability. Although there arp. many contemporary advocates of the social desirability of imposing insurer's liability on the manufacturer, there have been few, if any, court decisions which have actually gone is far in liability cases involving chemical products. There has bean only one decision which appears to impose is degree of care upon a manufacturer. The sainjie objective is being accomplished under the doctrine of res ipsa quitur and the use of criminal legislation to Establish the standard of due care in civil cases. In many cases, at might be referred to as liability 'without fdult has been bottomed upon the contractual theory of implied war- nty, rather than upon negligence. (a) Leading decisions asserting the general! rule that liability in tort depends upon the absence of reasonable cares (1) MacPherson v Buick Motor Co., 111 ft.E. 1050 (N.Y., 1916) (automobile manufacturer) (2) Brown v H. K. Mulford Co., 199 S.'f. 562 (Mo., 1917) (manufacturing chemist) (3) . I. DuPont de Nemours v Baridon, 73 F (2d) 26 (Iowa, 1) (fungicide manufacturer) (4) Walton v Sherwin-Williams Co., 191' F. (2d) 277 (Ark., 1951) (herbicide manufacturer) (b) Leading..,,deci_sioo.s... asserting ...the iula..thla.t Strict liability may be imposed notwithstanding the exercise of due, eg,re; (1) Escoia v Coca Cola Bottling Co., 150 P. (2d) 436 (Cal., 1944) (beverage bottler; concurring opinion) (2) Luthringer v Moore, 190 P. (2d) 1 (|Cal., ' 1948) (pest-control operator; manufacturer not involved) (3) Chapman Chemical Co, v Taylor, 222 5.W. (2d) 820 (Ark., 1949) (herbicide manufacturer) (c) General Referencess U) Texts and Encvclopediae (i) Prosser, Torts, secs. 56-61 (1941) (11) Harper, Law of Torts, secs. 155-203 (1933) (iii) Salmond, Law of Torts, secs. 596-599 (1934) (iv) Restatement, Torts, secs. 519-520 (v) 38 Am. Jur., Negligence, secs. 29-42 (2) Legal Periodicals (i) Bohlen, The Rule in Hylands v Fletcher, 59 U. Pa. L. Rev. 298 (1911) (ii) Pound, The End of Law as Developed in Legal Rules and Doctrines, 27 Harv. L. Rev. 195 (1914) (iii) Thayer, Liability Without Fault, 29 Harv. L. Rev. 801 (1916) (iv) Smith, Tort arid Absolute .Liability, 30 Harv. L. Rev. 241, 319 (1917) (v) Isaacs, Fault and Liability,|31 Harv. L. Rev. 954 (1918) (vi) Feezer, Capacity to Bear Loss as a Factor in the Decision of Certain Types of Tort Cases, 78 0. Pa. L. Rev. 805 (1930); -- (vii) Carpenter, The Doctrine of G^een v General Petroleum Corporation, 5 So. Calif. L. Rev. 263 (1932) (viii) Harris, Liability Without FaUlt, 6 Tulane L. Rev. 337 (1932) (ix) Lewis, Theories of Action in jProducts Liability Litigation, 1947 Ins. L. J. 30 (x) Friedmann,. Social Insurance ind the Principles of Tort Liability, 63 Harv. L. Rev. 241 (1949) (xi) Miller, Liability of a Manufacturer for Harm Done by a Product, 345 Ins. L. J. 797 (Oct., 1951) and 3 Syracuse L, 'Rev. .106 (4951) (xii) Conner 'arid Burroughs, Trends I in Product Liability, Vol. 7 Agricultural Chemicals (Feb., 1952) (xiii) Notes; (1947) 95 0. Pa. L. Rev. 565; (1948) 61 Harv. L. Rev. 515 (3) Annotations (i) 80 A. L. R. 692 - "Stored explosives, absolute liability for damage or injury from explosion of" ft r c ft ft; ft / v i. 8 2. A manufacturer who has failed to exercise reasonable care to make his product safe for the use for which it is intended is subject to liability to the person or property of any person who may be expected to use his product or be in the vicinity of his product's probable use for harm resulting from such negligence. Comment; Under the modern theory of tort'liability, the manufacturer's duty to use due care in the preparation and sale of his product extends beyond the person to whom the product is immediately supplied to such persons as ultimate purchasers, ultimate users, employees of purchasers, members of the family of purchasers, and to casual by standers. In product liability cases prior to 1916, the manufacturer was not generally subject to liability beyond his immediate purchaser, unless his product]was "inherently" or "imminently" dangerous to human life. The basis for this old concept steamed from dicta in an e&rly English decision that tort liability could not be invoked where priv ity of contract between the tortfeasor and ^he injured party was lacking. Today, the basis of tort liability, so far as the manufacturer is concerned;, is fores dlity rather than privity. If a product is reasonably certain to cause harm if negligently prepared or made, the nufaoturer owes a duty to any person who may be expected to use the pro- duct to exercise due care and' caution in it; manufacture. This is so. whether the product is dangerous per se or not. Although .there, are cases to the contrary, decided weight of authority holds that the manufacturer is subject to liability for property:damage.as-'well as f ; personal, injuries, irrespective of privity. The decisions holding in- sacticide manufacturers.liable for damage t crops. and the decisions holding manufacturers of animal remedies re sponsible for injury to animals are pertin ds ;in this reelect. a) Le^dlhs,,averting,..tha gtedral .rule..that a manufacturer..is_.s.ublec.t.to_...I.iabl.ll.ty .to. remote., parties; (1) MaePhersoutt v Buiot'Motior Co.,!Hi H.E. 1050 (-M.Y., 1916) (automobile manufacturer liable to a purchaser from-dealer) (2) Carter V Yardley, 64 N.E. (2d) 693 (Mass., 1946) (perfume manufacturer liable to a purchaser from dealer* reversing prior Massachusettsidecisions) (b) Eirmaadioa... decisions assorting [the rule of non-llabllltv in the absence.pf, .privity; (1) Winter-bottom v Wright, 10 M. i W. 109 (Eng., 1842) (contractor not liable to third party injured as re- isult-of breach of contract) : (2) National'fading:Bank v Ward, 100 U.S. 195 (1880) (attorney not liable to third party for negligent ex- amiwtioh'Of title.) ' (3) Huset v J* I. Ease Threshing Machine Co., 120 Fed. 865 (C.C.A. 8th, 1903) (manufacturer liable to em ploys of;purchaser where product was imminently dangerous) (4) Basbrouck v Armour & Co., 121.M.Vi. 157 (Wis., 1909) (manufacturer not liable to purchaser from retailer) (c) CMaa.MldIg&ima.ntifa.c.tur.er...llable.j.for .personal, injuries . or property damage to remote partiesi (1) Thtsnas v Winchester,6 M.Y. 397 (1852) (manufacturing druggist liable for personal injury to purchaser from .retail druggist) (2) Wellington v Dwaiter Kerosene dil Co., 104 Mass. 64 (1870) (naphtha manufacturer liable for personal injury add.'property damage to purchaser from retailer) (3) Blood' Bala Co. v Cooper, 10 S. E. 118 (Ga., 1889) (manufacturer of proprietary medicine liable for personal.4hju*y to.^purchaser from retail druggist) (4) falser v Holman, t3 Pac. 797 (Wash.., 1903) (manufacturer of explosive "champagne cider" liable for personal;Injury to^purchaser from dealer) . (5) Blirk v:Gxteam.ry Package Mfg. Co., 102 N.W. 793 (low, 1905) (supplier of sulphuric acid liable for personal .injury to invite of purchaser) (6) Clement v Crosby & Co., Ill N.W. 745| (Mich., 1907) (manufacturer of inflammable stove polish liable for .persoaal. injury to purchaser froji retailer) (7) foloho v Arthur J. Rosehbluth & Co., 71 Atl. 566 (Conn., 1908) (manufacturer of inflammable stovepipe enamel liable for personal injury to. purchaser 'from retailer) (8) Peterson V Standard Oil Co., 106 Pac. 337 (Ore., 1910) (manufacturer of petroleum product liable for personal Injury to purchaser from retailer) (9) AttSsteoirag.Packing Qo.,v Clem, iSl.S.W. 576 (Tex.,-1912) (soap manufacturer liable for personal injury to ptaehaser fro dealer who had purchased front jobber) (10) Marsh v Usk Hasdmranee Go., 132 Pac. 241 (Wash., 1913) (explosives manufacturer liable for personal in jury to purchaser from retailer) (11) Thornhill v Carpenter-Morton Co,, 108 N.E. 474 (Mass., 1915) (manufacturer of oil stain liable for personal injury to purchaser from retailer) (12) test Disinfecting dbmpahy v Pljummer, 44 App. D.C. '345 (1916) (insecticide manufacturer liable for personal injury to Employee of purchaser) (13) Brbwn U H. K. Mulfdrd Co., 199 S.W. 582 (Mo., 1917) (dicta that manufacturer of hog cholera virus and -f tom could, be liable to owner for injury to hogs) (14) Henry V Crook, 195 N.Y.S. 642 (1922) (sparkler manufacturer liable for personal injury to purchaser fc<3 retaAierj (15) Genack v Gtaaan, 194 N.W. 575 (Mich., 1923) (manufacturer of inflammable stove polish liable for -injury to purchaser from retailer) (16) Cahill v Ipecto, Inc., 203 N.y |.S. 1 (1924) (manufacturer of hair dye liable for personal injury to patron -of jbsfuty shop) ; (17) Hrusfea v Pfixfce, Davis & Co., 6!F. (2d) 536 (Mo., 1925) (manufacturer of medicinal preparation liable for pprsortal. injury to patient of physician) (18) Gi# Sefinijlnf Co. of La. v Jinright, 10 F (2d) 306 (Ala., 1925) (supplier of petroleum product liable far -peaoa|ii injury to purchaser from retailer) (19) Keqtueidy Independent Oil Co. viSchnitzler, 271 S.W. 570 (Ky., 1925) (supplier of petroleum product liabip fox*1:.1,p1ersonal,, injury to jbuxchaser from retailer) (20) Roiibetg v Shterwin-VfiHiams Co.l 269 Pac. 975 (Cal., 1928) (insecticide manufacturer liable for property damage- td'-jourchaser from dealep) (21) Pine Grove Poultry Farm v Newtown By-Products Mfg. Co., 162 N.E. 84 (N.Y., 1928) (manufacturer of poultry feed liable to purchaser from dealer for injury to poultry) (22) Louisiana Oil Refining Corporation v Reed, 38 F. (2d) 159 (La., 1930) (supplier of petroleum product liable for personal injury to employee of purchaser) (23) Farley v Edward E. Tower 8, Co., 171 N.E. 639 (Mass., 1930) (manufacturer of inflammable combs liable for personal injury to patron of beauty parlor) -V (24) Read Phosphate Co. v Vickers, 11 Tenn. App. injury to employee of purchaser) 146 (1930) (supplier of sulphuric acid liable for personal (25) Victory Sparkler & Specialty Co. v Latimer, 53 F. (2d) 3 (Mo., 1931) (fireworks manufacturer liable for personal injury to purchaser fpm dealer) (26) W. T. Rawleigh Co. v Shoultz, 56 F (2d) 148 (Pa., 1932) (disinfectant manufacturer liable for personal injury to purchaser from dealer) (27) Smith v Peerless Glass Co., 181 N.E. 576 (M.Y., 1932) (manufacturer of bottle liable for personal in jury to purchaser of bottled beverage from dealer) (28) E. I. DuPont de Nemours & Co. v Baiidon, 73 F (2d) 26 (Iowa, 1934) (fungicide manufacturer liable to purchaser from dealer for property1damage; reversed on other grounds) (29) Genesee County Patrons .Fire Relief Ass'n. v L. Sonneborn, 189 N.E. 551 (N.Y., 1934) (manufacturer of waterproofing compound liable to purchaser from dealer for property damage) A- (30) Gulf Refining Co. v Williams, 185 So. 234 (Miss., 1938) (supplier of petroleum product liable for . personal injury to employee of purchaser) (31) Petsold v Roux Laboratories, Inc., 11 N.Y.S. (2d) 565 (1939) (manufacturer of hair dye liable for personal'.injury to patron of beauty shop) (32) Gordy v Pan: American 'Petroleum' Corp., 193 So. 27 (Miss., 1940) (distributor of petroleum product liable as'manufacturer for.personal Injury to purchaser from retailer) (33) White v General Chemical Co., 136 S.W. (2d) 345 (Mo., 1940) (chemical manufacturer liable for personal Injury to employee of purchaser) V (34) COHUSiissipnars of the state'Insurant Fund v City Chemical Corporation, 48 N.E. (2d) 262 (N.Y., 1943) (dwaiteal distributor liable as manufacturer for personal injury to employee of purchaser) (35) Orr V. Shell Oil Co., 177 S.W. (2d):608 (Mo., 1943) (insecticide manufacturer liable for personal in jury to employee of fanaulator) (36) E. I. DuPont da Nemours & Co. v Wright, 146 F. (2d) 765 (Ky., 1944) (nitro-cellulose manufacturer \r liable for personal injury to employee of consignee) (37) Noone v Fred Perlberg, Inc., 49 N.Y.S. (2d) 460 (1944), affirmed without opinion, 60 N.E. (2d) 839 (N^Y., 1945) (dress manufacturer liable for personal injury to purchaser from retailer) (38) Stefaeie v Kota, 149 F. (2d) 4 (111., 1945) (manufacturer of shoe dye liable for personal injury to purchaser-from retailer) (39) fibers: v General Chemical Co., 17 N.W. (2d) 176 (Mich., 1945) (insecticide manufacturer liable to purchaser from distributor for property damage) (40) Maize*v Atlantic Refining Co., 41 A (2d) 850 (Pa., 1945) (manufacturer of cleaning solvent liable for peBsctel injury to purchaser from retailer) (41) Carter v Yatdiey, 64 N.E. (2d) 693 (Mass., 1946) (perfume manufacturer liable for personal injury to purchaser from retailer) (42) Ttagey v E. F. Houghton & Co., 179 P. (2d) 807 (Cal., 1947) (manufacturer of liquid heat quench liable for personal injury to employee of purchaser) (43) Chapman v Deep Rock Oil Corp., 77 N.E. (2d) 883 (111., 1948) (supplier of petroleum product liable for personal injury .and:.property damage to purchaser from retailer who had purchased from distributor) (44) Brown v Bigelow, 88 N.E. (2d) 542 (Mass., 1949) (cattle feed manufacturer liable to purchaser from dealer far injury to cattle) (45) Chapman Chemical Co. v Taylor, 222 S.W. (2d) 820 (Ark., 1949) (herbicide manufacturer liable for daiBtegis to. property adjacent to property of purchaser) (46) B&dies.v Speaser-Adam Paint Co., 60 S.E. (2d) 543 (Ga., 1950) (paint manufacturer liable to purchaser from dealar for property damage) (47) Green v Equitable Powder Mfg. Co., 94 F. Supp. 126 (Ark., 1950) (explosives manufacturer liable for personal.' injury to atnpUyee of purchaser from manufacturer) (48) Wechsler v Hoffman-JLa Roche, Inc., 99 N.Y.S. (2d) 588 (1950) (drug manufacturer liable for personal Injury to sub-purchasers fraud alleged) (49) Bead 10s VvSesnrel Inc., 100* N.E. (2d) 405 (111., 1951) (refrigerator manufacturer liable for personal - injury, to ;ssonri-lrid .purchaser) (50j Gall vrUnion Ice Co., 239 P. (2d) 48 (Cal., 1951) (manufacturer of sulphuric acid liable for death of byftender oa pregsLsee of sub-purchaser) . .. (d) Cases hdldina manufacturer not liable to remote parties in which lack of privity was either determining* 2 3 4 5 6 ctor or U) Slattery v Colgate, 55 ftl 639 (R.I., 1903) (soap containing excessive alkali) (2) Haabrduck v Aaiour & Co., 121 M.W. 157 (Wls., 1909) (soap with a concealed needle not "inherently dangerous''*) (3) Kramer v Carbolineum Wood Preserving Co., 177 Pac. 771 (Wash., 1919) (insecticide manufacturer not liable to purchaser from dealer where there was no showing that manufacturer ever had possession of particular product causing property damage) (4) wlitdrili Mfg. Co. v Bostdn Blacking Co., 131 N.E. 454 (Mass., 1921) (privity necessary where product en<ta$m property only) (5) Cliff v California Spray-Chemical Corp., 257 Pac. 99 (Cal., 1927) (insecticide not imminently or in herently dangerous) (6) Schfr4ftek v Benjamin Moore & Co., 54 F (2d) 76 (N.Y., 1931) (wallpaper compound not imminently or inherently dangerous) L- 10 (7) Lenz v Standard Oil Co. of N.Y., 186 Atl. 329 (N.H., 1936) (lead tetraethyl not imminently dangerous for all purposes) (8) Poplar v Bourjois, Inc., 80 N.E. (2d) 334 (N.Y., 1948) (metal star adorning cosmetic box not inherently or imminently dangerous) (1) Texts and Encvclooedlae (i) Prosser, Torts, Sec. 83 {1941) (ii) Restatement, Torts, secs. 388-398 (iii) Cooley, Torts, sec. 498 (1932) (iv) 38 Am. Jur., Negligence, secs. 20-22 (v) Dickerson, Products Liability and the Food Consumer, pp. 110-113 (2) Legal Periodicals (i) Feezer, Tort Liability of Manufacturers and Vendors, 10 Minn. L. Rev. 1 (1925) (it) Bohlen, Liability of Manufacturers to Persons other than their Immediate Vendees, 45 L. Q. Rev. 343 (1929) (iii) Bussell, Manufacturers' Liability to the Ultimate Consumer, 21 Ky. L. J. 388 (1933) (iv) Feezer, Tort Liability of Manufacturers, 19 Minn. L. Rev.-752 (1935) (v) Phelps, Extent of. Manufacturer"s Duty of Care to Persons other than the Immediate Purchaser, 2 John Marshall Law Quarterly 387 (1937) (vi) Seefeld, Tort Liability of Manufacturers to Users of Their Goods, 25 Marq. L. Rev. 173 (1941) (vii) Clark, Let the Maker Beware, 19 St. John's L. Rev. 85 (1945) (criticizing Noone v Perlberg, suora) (viii) Friedmann, Social Insurance and the Principles of Tort Liability, 63 Harv. L. Rev. 241 (1949) (ix) Paairs, The God in the Machine, 29 B.U.L. Rev. 37 (1949) (criticizing Carter v Yardley, suora) (3) Anpgtatlais. (i) 17 A.L.R. 672 j 39 A.L.R. 992} 63 A.L.R. 340} 88 A.L.R. 527; 105 A.L.R. 1502} 111 A.L.R. 1239} 140 A.L.R. 191} 142 A.L.R. 1490--"Liability of manufacturer or packer of defective article for injury to person or property of ultimate consumer who purchased from a middleman." (ii) 164 A.L.R. 569--"Manufacturer's liability for negligence causing injury to person or damage to property, of ultimate Consumer or user." (excellent annotation discussing the concept of priv ity in tort cases as developed in England and in the United States) (iii) 11 A.L.R. (2d) 1028--''Liability of manufacturer or wholesaler for injury caused by third person's use of explosives or other dangerous article sold to retailer in violation of law" (discussion of explosives and infltmmablbs) 3. The violation of a statute which is designed to protect the public against the type of harm which has occurred may be negligence in itself. Comments Numerous statutes and regulatory controls of a penal)nature regulate the manufacture and sale of chemical products at both the federal and state levels of government. Illustrative enactments at the federal level are the Federal Insecticide, Fungicide and Rodenticide Act, the Federal Food, Drug and Cosmetic Act, the Federal Caustic Poison Act, and the various regulations of the Interstate Commerce Commission regulating the transportation of ex plosives and inflammables. At the state level, there are the various economic poisons laws, food and drug laws, pharmacy and poisons laws, and laws regulating the sale of oil and other petroleum products. In general, these laws prescribe the information which must be placed on the labels of such products as agricultural economic poisons, food, drugs, cosmetics, industrial and household poisons and chemicals, and petroleum and, in some cases, prescribe stand ards of quality. The primary design of most of these laws is to afford protection to the general public, including transportation workers, middlemen, users and consumers, from the standpoint of safety. The courts have frequently been called upon to decide the effect in civil proceedings of a violation of provisions of statutes of this nature and have generally held: that such violations constitute negligence per se. Although the statute itself is penal in nature and does hot provide for the award of civil damages in favor of a party injured by reason of its violation, the courts accomplish the: same result by indirection. It is said that the legislature has established the standard of care for a particular situation and th?t the court has no alternative but to apply the statutory standard in civil negligence cases. A small minority of jurisdictions hold that such violations constitute evidence of negligence which is not conclusive. It may be noted that some jurisdictions adhere to the general view that the violation of a statute designed for: the public protection is negligence as a matter of law but hold that the violation of a municipal ordinance is only evidence Of negligence. A particular act or <emission such as the: failure to label a product "poison" as required by law, may be the viola tion -of both a common-law duty and a statutory duty. In. such a case, a cause of action could rest on either or both grounds. (a) &sgs_.holding, iBaniifafitHfcfir. liable., for. statutory viPlaHaa; (1) Wellington v Downer Kerosene Oil Co., 104 Mass. 64 (1870) (sale of naphtha as oil} statute created civil liability) (2) Burk v Creamery Package Mfg. Co., 102 N.W. 793 (Iowa, 1905) (sulphuric acid not labeled "poison") (3) Stowell v Standard Oil Co., 102 N.W. 227 (Mich., 1905) (sale of kerosene below statutory standard) (4) Ellis v Republic Oil Co., 110 N.W. 20 (Iowa, 1906) (sale of kerosene and gasoline mixture as kerosene) (5) Waters-Pierce Oil Co. v Deselmc, 212 U.S. 159 (1909) (sale of kerosene below statutory standard) (6) Peterson v Standard Oil Co., 106 Pac. 337 (Ore., 1910) (gasoline not labeled with proper cautionary statement; dicta that violation of municipal ordinance would only be evidence, of negligence) (7) Gately v Taylor, 97 N.E. 619 (Mass., 1912) (naphtha not labeled} not clear whether negligence per se or evidence of negligence) (8) Ramsey v Standard Oil Co., 120 S.E. 331 (N.C., 1923) (sale of kerosene and gasoline mixture as kerosene) (9) Gulf Refining Co., of La. v Jinright, 10 F (2d) 306 (Ala., 1925) (sale of oil below statutory standard} not clear whether negligence per se or evidence of negligence) 11 (10) Standard Oil Co. v Robb, 149 N.E. 567 (Ind., 1925) (sale of kerosene below statutory standard) (11) Getz v Standard Oil Co., 210 N.W. 78 (Minn., 1926) (sale of kerosene below statutory standard) (12) Olena v Standard Oil Co., 135 Atl. 27 (N.H., 1926) (sale of kerosene and gasoline mixture as kerosene) (13) Merchants' Bank v Sherman, 110 So. 805 (Ala., 1926) (sale of kerosene and gasoline mixture as kerosene) (14) Pine Grove Poultry Farm v Newtown By-Products Mfg. Co., 162 N.E. 84 (N.Y;, 1928) (wire in animal feed violative of adulteration provision in commercial feeding stuffs statute) (15) Chapman v Deep Rock Oil Corp.,77 N.H. (2d) 883 (ill., 1948) (oil untested and below statutory standard) (16) Sinclair Refining Co. v Piles, 221 S.W. (2d) 12 (Ark., 1949) (sale of oil below statutory standard; not clear whether negligence per se or only evidence of negligence) Notes Refer to Section B, PP. 19-20 for further pertinent cases involving vendors other than manufacturers. (b) aaea,. holding statutory .violation. or(ly evidence of negligence: (1) Welter v Bowman Dairy Co.,47 N.E. (2d) 739 (111., 1943) (statute prohibiting sale of adulterated milk) See also. Gatsly v Taylor, 97 N.E. 6ll9 (Mass., 1912) (decision not clear whether negligence per se ox evi dence of negligence) Sinclair Refining Co. v Piles, 2i21 S.W. (2d) 12 (Ark., 1949) (decision"not clear whether negligence per se or evidence of negligence) (c) Cases .hflldiaa manufacturer ngt.liafalie,where statute...ms interpreted as inapplicable: (1) Boyd v Frenchee Chemical Corp., 37 F. Supp. 306 (N.Y., 1941) (shoe cleaner not a poison under poisons law) (2) McClaren v G. S. Robins & Co., 162 S.W. (2d) 856 (Mo., 1942) (carbon tetrachloride not a poison under poisons law) ' (3) Richardson v De Luca, 535 (2d) 199 (La., 1951) (benzol not a coal oil or fluid used for illuminating or burning purposes under statute regulating, sale of certain petroleum products) Notes Refer to Section B, P. 19 for further pertinent cases involving vendors other than manufacturers. (d) Cases, balding manufacturer not liable where violation: of statute was not the proximate cause of the inniurv complained of: (1) Boyd v Frenchee Chemical Corp., 37 F. Supp. 306 (N.Y., 1941) (failure to label shoe cleaner "poison" not the cause of child's consuming it) Note: Refer to Stection B, PP- 19-20 for further pertinent cases involving vendors other than manufacturers. (e) SsasmOMseassss (1) Texits and, Encyclopedias (i) Prosser, Torts, sec. 39 (1941) (ii) Restatement, Torts, secs. 285-288 (iii) 38 Am. Jur., Negligence, secs. 158-170 (2) Legal Periodicals (i) Thayer, Public Wrong and Private Action, 27 Harv. L. Rev. 317 (1914) (ii) Green, Are There Dependable Rules of Causation, 77 U. Pa. L. Rev. 601 (1929) (iii) Lowndes, Civil Liability Created by Criminal Legislation, 16 Minn. L. Rev. 361 (1932) (iv) Morris, The Relation of Criminal Statutes to Tort Liability, 46 Harv. L. Rev. 453 (1933) (v) Gregory, Breach of Criminal Licensing Statutes in Civil Litigation, 36 Conn. L.Q. 622 (1951) (vi) Notest (1928) 13 Cornell L.Q. 634; (1932 ) 32 Col. L. Rev. 712; (1935) 19 Minn. L. Rev. 666. O) aancsaiim* (i) 12 A.L.R. 1309 - "Violation of statute or ordinance in relation to explosives as ground of action in favor of one injured in person or property by explosion." (ii) 11 A.L.R. (2d) 1028 - "Liability of manufacturer or wholesaler for injury caused by third person's use of explosive or other dangerous article sold to retailer in violation of law." 4* A. manufacturerjaaiLM,negligent by falling to give an appropriate warning or caution of any danger incident to the, normal use oQiisjasgdasl...which....a. user would not ordinarily discover. Comment: The manufacturer may be held negligent where he knows or should know that his product is, or is likely to be,dangerous for the us for which it is supplied, and has no reason to believe that those, for whose use the product is supplied, will realize its dangerous condition, and yet fails to exercise reasonable care to inform them of its dangerous condition or of the facts whiph make it likely to be so. The failure of a manufacturer in this duty of disclosure has been the most frequent basis for imposing tort liability in cases involving chemical products. Generally, the breach of duty occurs when the tflanufacturer fails to label his product with adequate cautionary state ments or with adequate directions for use wherd the product is safe when used in one manner but unsafe when used in another. In the case of products which are usually marketed without accompanying labeling, the breach may arise by reason of failure to warn orally or by other extrinsic media. Except in unusual situations, itis generally held that the manufacturer cannot defend a damage claim based on a sreach of the duty of disclosure onthe ground that he did not actually know of th dangerous properties in his prod uct. The law usually hdlds that he "should have known.'* The manufacturer is not liable, however, wherethe product is not dangerous when put to its normal use but! causes harm when used in a manner which was not reasonably foreseeable, or when the complaining party knew of the danger or could have easily discovered it in the exercise of due care, or when the breach of the duty of disclosure was npt the proximate cause of the injury complained of. In determining the adequacy of a particular warning on a.labeled product, courts will examine the entire labeling. A label or warn ing may be technically accurate and yet inadequate if adjudged not understandable by the ordinary user. (a) feSfis, holdjja^mmfacturen-.iiahle for! failure to label adequately. (1) Wellington v Dorter Kejrosene Oil to., 104 Mass. 64 (1870) (mislabeled oil product) (2) Blood Balm Co. v Coopdr, 10 S.E. 118 (Ga., 1889) (inadequate label on proprietary medicine showing presence Of iodide of potash; question of dosage involved) (3) Standard Oil Co. v Tieirney, 17 S.W. 1025 (Ky., 1891) (designation on bill of lading as "carbon oil" instead of-naphtha) (4) WeiSer v Hol'zman, 73 Pac. 797 (Wash., 1903) (no label showing explosive nature of "champagne cider") (5) Burk v Creamery Package Mfg. Co., 102 N.W. 793 (Iowa, 1905) (no poison label on jug of sulphuric acid) ( (6) Clesient V Crosby & Co., Ill N.W. 745 (Mich., 1907) (no label showing inflammable nature of stove polish) 12 (7) Wolcho v Arthur J. Rosenbluth & Co., 71 Atl. 566 (Conn., 1908) (no label warning of explosive nature of stove-pipe enamel) (8) Thornhill v Carpenter-Morton Co., 108 N.H. 474 (Mass., 1915) (no warning of inflammable nature of oil stain) (9) West Disinfecting Co. v Plummer, 44 App. D.C. 345 (1916) (failure to label insecticide and accompany ing sprayer with warning) (10) Henry v Crook, 195 N.Y.S. 642 (1922) (whether label on sparklers reading "do not touch glowing wire" was adequate warning to child whose dress set fire, held question for jury) (11) Genack v Gorman, 194 N.W. 575 (Mich., 1923) (no label showing explosive ingredients in stove polish) (12) Hxuska v Parke, Davis & Co., 6 F. (2d) 536 (Mo., 1925) (preparation advertised as "Camphor Solution Neutral" containing mineral oil technically accurate but insufficient) (13) Farley v Edward E. Tower & Co., 171 N.E. 639 (Mass., 1930) (failure to warn of inflammable nature of comb) (14) Fort Wayne Drug Co. v Flemion, 175 N.E. 670 (ind., 1931) (failure to label can of benzol) (15) Victory Sparkler & Specialty Co. v Latimer, 53 F. (2d) 3 (Mo., 1931) (failure to label fireworks con taining yellow phosphorus) (16) Genesee County Patrons Fire Relief Ass'n. v L. Sonneborn, 189 N.E. 551 (N.Y., 1934) (inadequate warn ing of inflammable properties of waterproofing compound) (17) KaHoran v Parke, Davis & Co.,, 280 N.Y.S. 58 (1935) (no warning or directions for use on pharmaceutical preparation? mane opinion) (18) Pease v Sinclair Refining Co., 104 F. (2d) 183 (N.Y., 1939) (no caution that bottle labeled kerosene contained water) (19) Standard Oil Co, v Lyons, 130 F (2d) 965 (Iowa, 1942) (no label showing inflammable nature of water proofing compound) (20) Maize v Atlantic Refining Co., 41 A (2d) 850 (Pa., 1945) (inadequately labeled cleaning solvent) (21) Tingey v E. F. Houghton & Co., 179 P. (2d) 807 (Cal., 1947) (no label showing explosive nature of liquid Tteat quench) (22) Gall v Union Ice Co., 239 P. (2d) 48 (Cal., 1951) (no label showing explosive nature of drum of sulphuric acid) (b) Cases holding manufacturer liable for failure to warn bv means other than labels; (1) Read Phosphate Co. v Vickers, 11 Tenn. App. 146 (1930) (failure to warn of danger involved in pouring hpt sulphuric, acid in metal container) (2) Abbott {Laboratories v Lapp,. 78 F (2d) 170 (111., 1935) (failure to warn physician to refrain from administering.'product if it was coagulated) (3) Qrr v S)heli Oii Co., 177 S.W. (2d) 608 (Mo., 1943) (failure to warn of dangerous properties of in secticide) (4) MOone v Fred PerIberg, Inc., 49 N.Y.S. (2d) 460 (1944) (failure to warn of inflammable nature of wearing apparel) (5) E. I. puPont de Nemours & Co. v Wright, 146 F. (2d) 765 (Ky., 1944) (failure to warn of dangerous condition of drum) (c) Cases ..h.Oldlnta manufacturer not liable where warning was adequate; (1) International Mercantile Marine Co. v Fels, 170 Fed. 275 (C.C.A. 2, 1909) (verbal warning of explo sive njsture of soap when confined) (2) Brown v H. R. Mulford, 199 S.W. 582 (Mo., 1917) (label on hog cholera virus and serum) (3) Cliff v California Spray-Chemical Corp., 257 Pac. 99 (Cal., 1927) (insecticide labeled with quality and ingredients) (4) Carmen V Eli Lilly & Co., 32 N.E. .(2d) 729 (Ind., 1941) (pamphlet accompanying rabies vaccine) (5) MaGlarah v G. S. Robins & Co., 162 S.W. (2d) 856 (Mo., 1942) (label on carbon tetrachloride reading "lolatiie Solvent, Use with Adequate Ventilation. Avoid Prolonged Ventilation" gave sufficient warn ing. of Sanger of use in, unventilated place) (6) Binder V William Cooper & Nephews, 55 N.E. (2d) 94 (111., 1944) (disinfectant labeled "safe, nonisiritatfng" with directions for use and statement of strength in undiluted state) (7) Walton y Sherwin-Williams Co., 191 F. (2d) 277 (Ark.,; 1951) (label on herbicide container) (8) Richardson v De Luca, 53 S. (2d) 199 (La., 1951) (label on container of net preservative solution anjd. oral warnings) (d) Cases hpldlnb manufacturer not liable where product was not dangerous when put to its Intended use: (1) Cliff v California Spray-Chemical Corp., 257 Pac. 99 (Cal., 1927) (insecticide) (2) Beiyd v Frenches Chemical Corp.,, 37 F. Supp. 306 (N.Y., 1941) (shoe cleaner consumed by child) (3) Bender William Cooper & Nephews, 55 N.E. (2d) 94 (111., 1944) (disinfectant labeled "safe" did not cover ufage In{undiluted state) (4) Laweoncy The flanjhmin Ansehl Co., 180 S.W. (2d) 751 (Mo., 1944) (finger-nail polish remover ignited by child) (5) Briggs v National Industries, 207 P. (2d) 110 (Cal., 1949) (chemical toxic in cold wave preparation) (6) Pajpellon v Grace Line, Inc., 94 F. Supp. 989 (N.Y., 1950), reversed 191 F. (2d) 169 (N.Y., 1951) (dietpeg^ats and cleaners exploded when mixed) () f!aa3jri^id)_i^MasjLUrer...n.!0't. liable where user knew or'could have discovered danger; (1) Carmen v Eli Lilly & Co., 32 N.E. (2d) 729 (Ind., 1941) (patient told by physician of risk involved iH' use df rabies-' vaccine and advised: by sales literature) (2J Bender v Vt^lliam Cooper & Nephews, 55 N.E. (2d) 94 (ill., 1944) (user should have known that disin- . fectant {labeled ''safe*' was unsafe for the eyes in undiluted state) (3) Detdjssey v Virginia Dare Stores, 186 S.W. (2d) 217 (Mo., 1945)- (purchaser must have known that rayon fussy lounging robe was inflammable) (4) Sateyer v Pine Oil Sales Co., 155 F. (2d) 855 (La., 1946) (no evidence that purchaser was unaware that cleansing agent was dangerous to the eyes) 13 (5) Gibson v California Spray-Chemical Corp., 188 P. (2d) 316 (Wash., 1948) (user knew or could have dis covered that insecticide was in experimental stage) (6) Marcus v Specific Pharmaceuticals, C.C.H. 22133 (N.Y., 1948) (drug sold under physician's prescrip tion and not to public generally) See also, McCrossin v Noyes Bros. & Cutler, 173 N.W. 566 (Minn., 1919) (name, "Roach Doom", suggested danger; vendor involved) (f) Cases,, hol5tiflg_Baaufa.C.turer. not, liable: where Inadequate warning was not proximate cause of injury complained Si! (1) Kapp v E. I. DuPont de Nemours & Co., 57 F. Supp. 32 (Mich., 1944) (no label on drum of aqua ammonia; explosion occurred in rebottled container) (9) Sflaa&L-EelgeafiMt Cl) .,, (i) Restatement, Torts, sec. 088 (2) LS3&L2SSiSMSMlS. - (None) (3) AjjggrfeaMans, (i) 86 A.L.R. 947 - "Duty of manufacturer or seller to warn of latent dangers incident to article as a class, as distinguished from duty with respect to defects in particular article." (li) 12 A.L.R. (2d) 436 ---"Liability for injury consequent upon spraying or dusting of crop." 5. &_..manufacjarLer^o^jmd.er.take.s to snake claims for the safety of his product by label or otherwise may be negli- Lent_.by fallinsLtflascertain the truth and accuracy of such representations when they are in fact false or inaccurate. Comment; The manufacturer may or may not have the positive duty to place cautionary statements, directions for ise or other warnings and claims on the label of his product or in the labeling which accompanies it. However, once he manufacturer assumes this undertaking, he assumes the corollary duty to exercise due care that the statements, laims or representation'made, are truthful, accurate, and not misleading to the ordinary purchaser or user. The ailure to discharge this'duty of accurate disclosure is usually teamed negligent misrepresentation. This tort, (hich has evolved iron the, ancient action of deceit, generally consists in the making of a false representation of material fact without sufficient knowledge as;to whether the representation is true or not. Since the manufacturer s generally.charged with the knowledge'of the Safety of his product, false representations of safety are likely to ead to liability. The rafbrssentatione may be jjade orally, by the label on the product itself, by trade circulars, dvertiseraents or by any medium which is brought heme by the manufacturer to the purchaser or user. There is a separate tort.:of deceit which is Closely related to the tort of negligent misrepresentation but is arely involved in chemical-products liability eases. The gravamen of this action is the intentional making of a 'alse representation' with the intent to deceivel Whereas negligent misrepresentation may be based on innocent but areless conduct, tfepait bonders on fraud. (a) qa^s,,hiaAaa..iaftdSa.Oturar, .liable for inegligent misrepresentation> (1) Darks, v Scudders^-Gaie Grocer Co. ) 130 S.W. 430 (Mo., 1910) (oral claims for medicinal preparation) (2) Marsh v Usk Hardware Co., 132 Pad. 241 (Wash., 1913) (claims made in trade circulars) (3) West Disinfecting. Co. v Plummer,j44 App. D.C. 345 (1916) (oral claims for insecticide) (4) Valkas Brags 180.. v Smoots, 269 Feci. 356 (C.C.A. 6th, 1920) (claims for medicinal preparation on label ands in advertisements) (5) Cahill V InsatO', Inc., 203 N.Y.S, 1 (1924) (hair dye represented as harmless in advertising pamphlets) (6) Hrufeka v Fajfise,. Davis & Co.., 6 F4 (2d) 536 (Mo., 1925) (character of medicinal drug in advertising) (7) Kolbepg v.$hq|rwSjHJilliams Co., 269 Pac. 975 (Cal., 1928) (oral claims for insecticide) (3) While: v iatiinai Bank of Commerce, 278 Pac. 915 (Cal., 1929) (oral claims for insecticide) (9) Louisiana Oil Refining Corporation v Reed, 38 F. (2d) 159 (La., 1930) (oral representation of safety of explosive! | (10) Weniberhoim V Stanford University iSchool of Medicine, 128 P. (2d) 522 (Cal., 1942) (published claims forjdrug^ fpfud and deceit) (11) Ebsts v Gensial Chemical Co., 17 IN.W. (2d) 176 (Mich., 1945) (claims for insecticide in advertising . patajslilat) (12) Ead&s v Spencer-Adams Paint Co., 60 S.E. (2d) 543 (Ga., 1950) (paint represented as meeting certain specifications) (13) Waqisler v Hoffman-La Roche, Inc.:, 99 N.Y.S. (2d) 588 (1950) (claims for drug made to medical pro- fashion) (h) Saias-MUlaa.manufacturer_.not..Jlahle_iihere representations _were not false or inaccurate; (1) Carmen v Ell Lilly & Co., 32 N.E. (2d) 729 (Ind., 1941) (statements in pamphlet furnished by manu facturer of anti-rabies vaccine) (2) Benier v William Cooper & Nephews;, 55 N.E. (2d) 94 (111., 1944) (label claims for disinfectant) (3) Gibion v California Spray-Chemxcal Corp., 188 P. (2d) 316 (Wash., 1948) (claims for insecticide in. Met) (c) fisaasaj,, Jjtfseaam* U) " I) grosser, Torts, secs. 85-90 (1941) I) Cooley, Torts, secs. 346-366 (.fraud and deception), sec. 497 (negligent misrepresentation) (1932): (Hi) Restatement, Torts, secs. 525-552 (deceit), secs. 304-311 (negligent misrepresentation) (2) |l) mlilsiton, Liability for Honest Misrepresentation, 24 Harv. L. Rev. 415 (1911) (11) Bbhlen, Misrepresentation as Deceit, Negligence, or Warranty, 42 Harv. L. Rev. 733 (1929) (ill) Deceit, 16 Va. L. Rev. 749 (1930) (ilv) Wftisiger, Basis of Liability for Misrepresentation, 24 111. L. Rev. 866 (1930) ([vj Green,/ Innocent Misrepresentation, 19 Va. L. Rev. 242 (1933) (Mi) :l^tbnj:, Fraudt Misrepresentation of Opinion, 21 Minn. L. Rev. 643 (1937) (viii) ;tia54-pter:"8. McNeely, A Synthesis of the Law of Misrepresentation, 22 Minn. L. Rev. 938 (1938) 14 (viii) Morlson, Liability in Negligence fox False Statements, 67 Law Q. Rev. 212 (1951) (ix) Notes: (1951) 13 Ga. B. J. 343 (noting Eades v Spencer-Adams Paint Co., supra.); 22 Wash. U.L.Q. 406 (1947) (effect of advertising) (3) Annotations: (None) 6- falling to test his product adequately before placing it on the market to asgureJzfrai-it is safe for its intended use. Comment: The manufacturer of chemical products owes a duty to the public to conduct such experiments and tests, as are reasonable under the circumstances, to ascertain the safety of his product for its intended use. This is another facet of the general principle that the manufacturer should know of the dangerous properties of the product which he markets and if he doesn't he must ascertain the unknown. It cannot be said'that in all cases such pretesting is ab solutely essential in the sense that a failute to do so would be negligent per se, although one decision has gone to this extent, Testing would seem to be required only.in those cases where the product involved was one whose character and .potential danger wefee. not generally known, and understood in ordinary commercial usage. It. will be noted in Section B pp. 21-22 that vendors other than manufacturers do not as a rule have the duty to teat the products which they sell. However,: suppliers of basic ingredients, or substances which are used in the manu facture of finished chemical products may owp a duty to test the material which they supply. In such a case, the man ufacturer of the -finished-product would not have the duty to test the basic ingredients as such but would not be re lieved, of the duty to oonduet.reasonable tesis en the finished products, (a) C3.ses...l)Pld.i0fl..taig.tifalctteer liable for failure to. conduct adequate tests on his product: (l) Stuwell.v 'Standard" Oil :Qo., lipM.W,'227 (Mich., 1905) (failure to test kerosene) (2.) teacPherson v BalsfciMotor Co.,: 111 N.E. 1050 (H,Y.f 1916) (failure of automobile manufacturer to test wheel manufactured by another) (3) Smith v feearless Glass Co., Ifjll N.E. 576 (N.Y., 1932)-(failure of bottle manufacturer to test bottle sold to-UBaBUfesturer.'of bottled.'beverages) (4) Ehsrs v General Chemical Co., 17 N.W. (2d) 176 (Mich., 1945) (failure to test insecticide in area where sold.for use) (5) Biggin, v federal Cartridge Carp., 204 S.W. (2d) 94 (Mo., 1947) (failure to test ammunition) (6) Chapman v Deep Rock Oil Corp.) 77 N.E. (2d) 883 (111., 1948) (failure to test petroleum product as re quired by statute) (7) Chapman Chemical Co. v Taylor, 222 S.W. (2d) 820 (Ark., 1949) (failure to test herbicide fox drifting propensities, held negligence jper se) (b) not liable where .tests were held adequate or unnecessary: WOschenko v Schmidt & Sons, Ihc., 66 A (2d) 159 (N.J., 1949) (failure to conduct pressure tests on baftwsi .heads, held .Insufficient to show cause of resulting explosion) WSltOti V 'Sherwifl-WI111alas Co.,, 191 F, (2d) 277 (Ark., 1951) (field tests on herbicide held adequate) ' 1! U) Restafcetemt, Torts, sec. 395, comments (a) and (f) *- (None) 15fa A.L.R. 479 - "Manufacturer's liability for injury or damage as affected by his test, or by his failure to test, for defects."* 1 2 3 4 5 6 7 7. A manufacturer AV be negligent in failing to use a formula for his product which will make it safe for its Comment: The manufacturer has a duty to exercise reasonable care in the preparation of his product to the end that the product as placed on the market is safe for its intended use. Thus, he has a duty to test his product to ascertain its safety .as well as the duty to adopt and follow a formula which is safe, or, if it is not safe for cer tain purposes or when used in a certain manner, to apprise the public of this fact. "Although the duty to warn the public of risks incidental to the Use of a particular product is generally the ultimate duty which the manufacturer owes since the discharge of this duty accomplishes what the duty to test and the duty to adopt and use a safe for mula are designed to effect, the courts tend to discuss these responsibilities in terms of separate types of negli gent conduct. If the product which is ultimately placed on the market by the manufacturer 'contains any intentionally-added poi sonous or deleterious substance or:ingredient which renders the product harmful and which, in fact, causes harm, liability inevitably results. In food-products liability cases, the principle of res ipsa loquitur is frequently resorted to to impose liability on the food manufacturer irrespective of proof of negligence. The principles in volved in the situation where a:particular product is unsafe by reason of the presence of foreign matter rather than matter which is a part of.the formula of the finished product are discussed p. 16 infra. The formula of some product may be safe fOr most uses or when used by the majority of the public and yet unsafe for certain uses or when used, by person with certain allergies. There are few decisive decisions on the mitigating effect which the allergy of a plaintiff may have on the liability of the manufacturer. The courts tend to speak of "foreseeability" and hold the manufacturer liable in such cases where the particular allergy involved is one fre quently encountered. (a) agas_haldlctq manufacturer liable frir harm caused bv the presence of harmful substances in the formula of (1) Blood Balm Co. v Cooper, 10 S.E:. 118 (Ga., 1889) (drug containing iodide of potash; quantity recom mended for use dangerous) (2) Armstrong Backing Co. v Clan, 151 S.W. 576 (Tex., 1912) (soap containing poisonous substance improper ly neutralised) (3) Patterson v Orangeburg Fertilizer Co., 108 S.E. 401 (S.C., 1921) (excessive borax in fertilizer) (4) Cahill v Irtecto, Inc., 203 M.Y.5. 1 (1924) (hair dye containing poisonous ingredient) (5) Hruska v Parke, .Davis 8. Co., 6 f. (2d) 536 (Mo., 1925) (mineral oil in drug preparation) (6) Kolberg v. Sjaerwip-Wllliams Co., 269 Pac. 975 (Cal., 1928) (excessive oil in insecticide) (7) Bundy V Ey-fesb, 289 N.Y.S. 905 (1935) (ingredient in hair dye) 15 (8) Petzold v Roux Laboratories, Inc., 11 N.Y.S. (2d) 565 (1939) (hair dye containing poisonous com pound; no actual negligence proved) (9) Ballard & Ballard Co., v Jones, 21 S. (2d) 327 (Ala., 1945) (excessive calcium arsenate in flour) (10) Carter v Yardley & Co., 64 N.E. (2d) 693 (Hass., 1946) (poisonous ingredient in perfume) (fa) Gaieg-hQldiag.. manufacturer not liable, where product was not dangerous when put to its intended use; (1) Cliff v California Spray-Chemical Corp., 257 Pac. 99 (Cal., 1927) (alleged dangerous substance in insecticide) (2) Karr v Inecto, Inc., 160 N.E. 398 (N.Y., 1928) (alleged dangerous substance in skin preparation) (3) Lanz.v Standard Oil Co. of New York, 186 Atl. 329 (N.H., 1936) (ethyl gasoline spilled on arm) (4) Elizabeth Arden, Inc. v Brovm, 107 F. (2d) 938 (Pa., 1939) (alleged harmful ingredient in toilet .preparation) (5) Kohlman v Jefferson Bottling Co, 192 So. 113 (La., 1939) (caustic soda solution in bottled beverage) (6) Wise v Hiresta Laboratories, 28 iN.Y.S. (2d) 382 (1941) (cosmetic allegedly inherently dangerous) (7) Sawyer v Pine Oil Sales Co., 159 F. (2d) 855 (La., 1946) (alleged dangerous ingredient in cleansing agent) (8) Cooper v Kolar, C.C.H. 22, 132 (ill., 1948) (alleged dangerous ingredient in hair cream) (9) Singer v Oken, 87 N.Y.S. (2d) i 96 (N.Y., 1949) (phenol in calomine lotion; question of allergy) (10) Briggs v National Industries, : 07 P. (2d) 110 (Cal., 1949) (chemical toxic in cold wave preparation) (11) J. R. Watkins Co. v Raymond, 11 4 F.- (2d) 925 (Minn., 1950) (alleged poisonous chemical in hair shampoo) (12) Tuscany v U.S. Standard Products Co., 243 S.W. (2d) 207 (Tex., 1951) (alleged impurity in drug) See also, Bennett v Pilot Products Co., 235 P. (2d) 525 (Utah, 1951) (alleged dangerous ingredients in permanent wave solution; distributor involved) (c) SgneratJj|fagnag,:s (1) lS^^fl<Lia9Y;SiS.RMiiaai (1) Restatement, Torts, sec. 397 (2) (.1) Peairs, The God in the Machine,-29 B.U.L. Rev. 37 (1949) (criticizing Carter v Yardley, supra1 (3) Anaafotlqnsi (i) 121 A.L.R. 464 - "Seller's or manufacturer's liability for injuries as affected by peculiar or unusual susceptibility1 of buyer or user to injury from dye or other ingredient in article . sold*" 8 A manufacturer may bei. negligent in falling to take proper precautions against the contamination or adulteration Lhls product with..greign_subst.ances__whieh will make the product unsafe for its Intended use. Comment; The manufacturer has a duty to exercise reasonable care during the processing and manufacturing of his oducts to prevent unintended contamination or adulteration. The methods employed in the manufacturing process, ie conditions under which a product is manufactured and contained, and the adequacy of inspections during the manu- cturing process and pribr to distribution, arej all relevant considerations upon the manufacturers' discharge of lis duty, once harm has been caused by reason of a contaminated or adulterated product. In food-products liability ses, res ipsa loquitur is frequently relied uppn to establish a cause of action in this type of claim. The manufacturer has a valid defense in cases|where the foreign substance was not in the product when the product ft the hands of the manufacturer and the contamination or adulteration occurred in the line of distribution, or ere the product was adutt&tated despite reasonable precautions and inspections on the part of the manufacturer, where the adulterant ot contaminant did not render the product dangerous for its intended use. (a) a.s.e.s holding mdddlao.turer liable for narm caused bv the presence of harmful foreign matter in his product: (1) Pin Grovb Fctiltry Farm v Newtown By-Products Mfg. Co., 162 N.E. 84 (N.Y., 1928) (wire in poultry feed) (2) David v McKesson & Robbins, Inc., 300 N.Y.S. 635 (1937) (sodium fluoride in bicarbonate of- soda; memo, opinion) (3) Gordy y Pan American Petroleum Corp., 193 So. 29 (Miss., 1940) (contaminated kerosene) (4) Commissioners of State Insurance Fund v City Chemical Corporation, 43 N.E. (2d) 262 (N.Y., 1943) (con taminated pyravip acid) (5) Tingey v E. F Houghton & Co., 179 P. (2d) 807 (Cal., 1947) (liquid heat quench contaminated with foreign substance) (6) Chajjtaan V Beep Rock Oil Corp., 77 N.E. (2d) 883 (111., 1948) (contaminated kerosene) (7) Sinclair Relining Co. v Piles,. 221 S.W. (2d) 12 (Ark 1949) (contaminated kerosene) (b) Cases holding, .aandfaetuxsr not liable where product was not dangerous when put to its Intended use; (1) Schfcanek ,v ienjamin Moore & Co.. 54 F. (2d) 76 (N.Y., 1931) (glass in wallpaper powder) CaSfliLjfcal4UsaJfiS^ ere adulteration was not foreseeable; (1) HasIffQUefe v lArmour & Co., 121 N.W. 157 (Wis., 1909) (needle embedded in soap) (Mo pertinent references) 9. AA _marnmufagcjf;aMiEreera)-J;:lw*Ifr.Oo ;.dnttbrtakes to package hi Is product may be negligent in packing the contents in the container 3. manner whichJLs,,jlkr;to cause an explosion: when the container is opened or unpacked. C.gment: The mamiSaotturer! who packages, bottles, or otherwise contains his product in a closed container has the ;y to exercise reasohafelis>'. 1)1 the packaging! process to the end that the contents will not explode when the con- .ner is opened or Ufipacksd! Under the normal conditions accompanying its use. This principle applies to defects in sure where an expSeslgns obeurs iolely because bf forces generated within the sealed container. It arises most quently in the ease, of pfejstical j products where; the slack in the container is insufficient. In numerous cases, .ncipaliy involving bottled bevetages, the courts have applied the doctrine of res ipsa loquitur in holding the lufacturer liable. (a) Saae.3. holding manufacturer liable for harm resulting from improper packaging; (1) Hallenbeot Wariideer & Sons Chemical Co., 189 N.Y.S. 334 (N.Y., 1921) (explosion of can containing chloHnafsd lime) 16 (2) W. T. Rawleigh Co. v Shoultz, 56 F. (2d) 148 (Pa., 1932) (explosion of disinfectant caused by failure to exclude pent-up gas in bottle) (3) Alston v J. L. Prescott Co., 76 A. (2d) 686 (N.J., 1950) (sudden expulsion of sodium hypochlorite from bottlej res ipsa loquitur applied) See, Mahoney v Shaker Square Beverages, 102 N.E. (2d) 281 (Ohio, 1951) (explosion of bottle of aleq retailer involved) (b) QMM._hal!ilng.,aanufacturer not liable..where explosion was not caused by improper packaging. (1) Kusick v Thorndike & Hix, Inc., 112 N.E. 1025 (Mass., 1916) (explosion of can containing lime; vendor involved) (2) Kramer v R. M. Hollingshead Cprp., 75 A. (2d) 861 (N.J., 1950) (explosion of solvent outside of con tainerj res ipsa loquitur not applicable) (c) General References! (1) Ig&lta.JffiLPnsyp.toRgdjfljft - (None) (2) LmLJffilMiails -- (Hone) O) (i) 4 A.L.R. 1094 - "Liability for injuries by breaking or bursting of container in which goods are sold/9 10. A manufac.tlSBLiiliaL.undertakes to package his product may be negligent in using a defective container which may cause harm when It is handled. Comment % The manufacturer who supplies his product in a closed container has the duty to exercise reasonable care that the container is not in a defective condition rendering it-unsafe for handling in the course of distribution or incidental to the use of the product itself-: In the discharge of this duty, the manufacturer may be required to in spect or test containers which may be supplied by others. It will be noted that this principle is confined to the situation where harm results from the state bf the container and not from a chemical reaction within the product itself. (a) aieOal4^1flJBaLBafacjaiEgs_liable for harm resulting from defective containers; (1) Coakley v Prsntiss-Wabers Stovb Co., 195 N.W. 388 (Wis., 1923) (defective construction of gasoline stove) (2) Smith v Peerless Glass Co., 181 N.E. 576 (N.Y., 1932) (defective bottle) (3) Gulf Refining Co. v Williams, 185 So. 234 (Mass., 1938) (defective drum containing gasoline; distribu tor involved) (4) White v General Chemical Co., 135 S.W. (2d) 345 (Mo., 1940) (defective plug in bung hole of drum of acid) (5) Saganawich v Hachikian, 35 A. (2d) 343 (Pa., 1944) (defective .bung in drum containing gasoline) (b) Cases holding manufacturer not liable! (l) Mares! v J. W. Robinson Co., 238 P. (2d) 78 (Cal., 1951) (design of insecticide sprayer) (c) Senm.l_asgESQes! (1) I.3EfaS.JflsL JSnfiy,9l,pp.edi?,e - (None) (2) Legal Periodicals - (None) (3) AnflaisMSOi,' (1) 55 A.L.R. 194 - "Duty of seller of explosives to guard against improper condition of containers." B. Liability of Vendors other than Manufacturers for Negligence 1. A vendor is not an insurer of the safety of the product which he sells and is subject to liability in tort actions only where he has failedto exercise reasonable care in its sale. Comments The tort liability of the vendor of chemical products is based on the same principles of law as the li ability of the vendor of less hazardous products. Liability depends upon the absence of due care on the part of the vendor in the selling of his products. As ini the case of the manufacturer, the degree of care required of the vendor is that of the hypothetical "reasonable man" under the circumstances. The principle of absolute liability has not as yet been invoked against the vendor of chemical products. There are essential differences in the principles governing the liability of the manufacturer and the liability of the vendor who is not a manufacturer which should be noted. It has been noted in Section A, p. 12 that the manufacturer may be held negligent where he knows or should know that his product is or is likely to be dangerous for the use for which it is supplied, and has;no reason to believe that those for whose use the product is supplied will realize its dangerous condition, and yeti fails to exercise reasonable care to inform them of its dangerous con dition or of the facts which make it likely to be so. Since the manufacturer is responsible for the preparation of his product, he should know the character of the product and the nature of its ingredients. Therefore, he has the duty to test his product before selling it to;ascertain its properties if, in fact, he does not know them. On the other hand, the vendor of a product manufactured by a third party is responsible only for harm which is caused by a danger in the product of which he knew or fiom facts available to him had reason to know. The fact that the danger could have been discovered by the vendor or tljiat a reasonable vendor would have discovered it is not in itself enough to impose liability. The distinction becomes important where the product involved is sold by the manufacturer to a vendor in a sealed container and the latter resells it in the same form to a purchaser. In such a case, the vendor is generally responsible', only for patent defects in the product whereas the manufacturer may be responsible for la tent defects as well.1 2 (1) Brown v Marshall, 11 N.W. 392 (Mich., 1882) (mere sale of a wrong drug does not establish prima facie case) (2) Spry v Kiser, 102 S.E. 708 (N.C.jf 1920) (druggist not liable for death of child caused by sale of ran cid sweet oil to child's parents, unless sale was negligent) 17 (3) Henderson v National Drug Co., 23 A. (2d) 743 (Pa., 1942) (sale of drug followed by injury does not establish negligence) (4) Commissioners of the State Insurance Fund v City Chemical Corporation, 48 N.E. (2d) 262 (N.Y., 1943) (dealer who vends a dangerous drug is not liable without proof of negligence) (5) Parker v State, 105 N.Y.S. (2d) 735 (1951) (municipality which distributes'infected blood plasma not liable without proof of negligence) (b) CuuLdwauaataaJt^^ (X) Luthringer v. Moor, 190 P. (2d) 1 (Cal,f 1948) (pest-control operators vendor not involved) (2) Chapman Chemical Co. v Taylor, 222 S.W. (2d) 820 (Ark., 1949) (herbicide distributor liable as manu facturer) (c) SffiSSal.JMSEBgs: Refer to material cited in Section A. p. 8. b. 2. ILvendor wh&_has,.failed to exercise reasonable care in the sale of his product is subject 'to: liability for harm resulting^fECB.^5U.Ch^negii;aence to the person or property of any person who may be expected to use the product Comment t The ambit of the vendor's responsibility to remote parties who may be harmed from the use of the product sold is coextensive with that of the manufacturer. The principles discussed in Section A. p. 9 are equally applicable here. Thus, a wholesaler, jobber dr retail dealer may not only be subject .to liability to immediate pur chasers in the course of distribution, but also may be subject to liability to remote users, purchasers, their em ployees and members of the family. (a) SaaaS-haldlaa-Yfflidor liable for personal injury or property damage to remote parties; (1) Norton v Sewall, 106 Mass. 143 (1870) (druggist liable fox personal injury to employee of purchaser) (2) Cunningham v C. R. Pease House Furnishing Co., 69 Atl. 120 (N.H., 1908) (dealer liable for personal injury to member of purchaser's family) (3) Stone v Sinclair Refining Co., 106 N.W. 339 (Mich., 1923) (distributor liable for personal injury to purchaser from retailer) ! (4) Gordy v Pan American Petroleum Cdrp., 193 So. 29 (Miss., 1940) (distributor liable as manufacturer for personal injury to purchaser fro# retailer) (5) Commissioners of the State Insurance Fund v City Chemical Corporation, 48 N.H. (2d) 262 (N.Y., 1943) (distributor liable as manufacturer for personal injury to employee of purchaser) (6) Sagan.ovd.eh v Hachxkian, 35 A. (2d) 343 (Pa., 1944) (chemical supplier liable for personal injury to employe, of purchaser) (7) Green v Equitable Powder Mfg. Co., 94 F. Supp. 126 (Ark., 1950) (dealer-manufacturer liable for per sonal injury to employee of purchaser) (8) McAleavy v Lowe, 49 N.W. (2d) 487 (Wis., 1951) (distributor liable for property damage to purchaser from retailer) (9) Gall v Uhion ice Co., 239 P. (2d)! 48 (Cal. 1951) (distributor liable for personal injury to bystander on premises, of purchaser) (b) No: ea (c) &QialJM&EQ&g? (i) Prosser, Torts, sec. 83 (1941) (ii) Restatement, Torts secs. 399, 401 (2). (1) Feezer, Tort Liability of Manufacturers and Vendors, 10 Minn. L. Rev. 1 (1925) (11) Eldridge, Vendor's Tort Liability, 89 U* Pa. h. Rev. 306 (1941) (lit) Notesi. (1933) 18 Minn. L. Rev. 91; (1938 ) 22 Minn. L. Rev. 743. (3) toUSJaSJ4BSX (None) c 3* A-JtKior who puts, out a product as his own product is subject to the liability of a manufacturer. CSSBSDiv The duty of the vendor is frequently different from the duty of the manufacturer. However, where the endor undertakes by oral representations, label representations, or advertising to assume the status of the manuacturer, he loses his protective cloak and assumes the correlative liability status of a manufacturer. The vendor ay assume this status in a variety of ways, such as putting out the product under his own name or affixing to the coduct his trade name or trade-mark. He may be held to have assumed this status even though the label on the prodst describes him as the distributor. Ordinarily, he is not subject to this liability where the labeling of the coduct clearly and distinctly designates the real manufacturer. (a) aaM^gES_tM-S._rul8 was applied (1) Willson v Faxon, Williams & Faxon, 101 N.H. 799 (N.Y., 1913) (oral representations by druggist) (2) Thornhill v Carpenter-Morton Co., 108 N.E. 474 (Mass., 1915) (dealer represented as manufacturer on label of product) (3) Tiedja v Haney, 239 N.W. 611 (Miruu, 1931) (druggist represented as manufacturer on label of harmful preparation) (4) Burkhardt v Armour & Co., 161 Atl. 385 (Conn., 1932) (distributor of canned beef prepared by foreign subsidiary) (5) Swift & Co. v Hawkins, 164 So. 231 (Miss., 1935} (distributor of cheese packed in wrapper stamped with distributor's name and trade name) (6) Dow Drug Co. v Nieman, 13 N.H. (2d) 130 (Ohio, 1936) (wholesaler marketing cigars as his own) . 18 (7) Swift & Co. v Blackwell, 84 F. (2d) 130 (Va., 1936) (wholesaler of canned milk liable although label bore word "distributor") (8) Slavin v Leggett & Co., 177 Atl. 120 (N.J., 1935), affirmed, 186 Atl. 832 (1936) (distributor of canned peas bearing corporation's name followed by word "distributor") (9) Gordy v Pan American Petroleum Corp., 193 So. 29 (Miss,, 1940) (distributor of petroleum product manufactured by third party) (10) Armour & Co. v Lea sure, 9 A. (2d) 572 (Md. 1939) (distributor of canned beef prepared by foreign subsidiary) (11) Commissioners of the State Insurance Fund v City. Chemical Corporation, 48 N.E. (2d) 262 (N.Y., 1943) (distributor relabeled chemical .product as his own) (12) Poplar v Bourjois, Inc., 69 NtY.S. (2dj 252 (1947), affirmed 80 N.E. (2d) 334 (N.Y., 1948) (manufac turer of cosmetics ) (13) Chapman:Chemical Cb. v Taylor,, 222 S.W. (2d) 820 (Ark., 1949) (oral representations by distributor of herbicide) (b) a^ea,.&,bMciS^aadflr_itot liable as |manufacturer; (1) Fleetwood v Swift & Co., 108 S.E. 909 (Ga., 1921) (distributor of butter designated on label as dis tributor) (c) General.References: U) ...Eppypi.op.odia g (i) Pwlsser, Torts, sec. 83 pp. 681-682 (1941) (ii) fy$$ta.tement, Torts sec; 400 (ill) Eldpidge, Modern Tort Problems, pp. 253-256 (2) Leael.Periodicals: (i) tfPtWs: (1936) 20 Minn. L. Rev, 831; (1933) 31 Mich, L. Rev-. 865 (3) lUffiSfcaJiltes - None d. Particular Types of Negligence 4. The violation of a statute which is designed to protect the public against the type of harm which has occurred may be negligence in itself. Comment: The, principles noted in Section A, p. 11 are equally applicable here. It was noted there that the violation of certain criminal statutes designed to protect the public, such as economic poisons laws, food and drug laws, and pharmacy and poisons laws, may constitute negligence per se in civil litigation. The pharmacy and poisons laws are particularly applicable to vendors other than manufacturers and are frequently applied in tort cases involv ing retail druggists, SasesJiojdina. vendor, liable for_s_ta.tut.ory violation: (1) Wohlfahrt v Beckert, 92 N.Y. 490 (1883) (drug not labeled "poison") (2) Osborne v McMasters, 41 N.W. 543 (Minn., 1889) (drug not labeled "poison") (3) Fisher v Golladay, 38 Mo. App.:531 (1889) (sulphuric acid not labeled "poison") (4) Mossrud v Lee, 157 N.W. 758 (Wis., 1916) (chemical compound not labeled "poison") (5) Hendry v Judge & Dolph Drug Co;, 245 S.W. 358 (Mo., 1922) (drug not labeled "poison") (6) Stone v Sinclair Refining Co.,,196 N.W. 339 (Mich., 1923) (distributor poured gasoline into green can for dealer instead of red can is required by law) (7) Campbell v Stamper Drug Co., 2f7 Pac. 770 (Colo., 1929) (sale of drug by druggist without satisfying himself that purchaser was aware of the poisonous character of the drug and that it was to be used for legitimate purposes) (8) Stone v Shaw Supply Co., 36 P.!(2d) 606 (Ore., 1934) (sale of poison by druggist to minor) (9) Txumbaturi v Katz & Besthoff, 158 So. 16 (La., 1934) (sal'e of poison to idiot) (10) Marigny y Dsjoie, 172 So,. 808 (La., 1937) (drug not labeled "poison") (11) Manning Mfg. Co. v Hartol Products Corp. 99 F. (2d) 813 (Vt., 1938) (sale of kerosene below statutory standard) (12) Mautino v Piercedale Supply Co., 13 A. (2d) 51 (Pa., 1940) (sale of gun cartridge to minor) (13) Bennett Drug Stores v Mosely, do S.E. (2d) 208 (Ga., 1942) (sale of carbolic acid to intoxicated person) (14) McAieavy v Lowe, 49 N.W. (2d) 487 (Wis., 1951) (adulterated livestock feed) (b) Cases holding vendor not liable wherte statute was interpreted as inapplicable! (1) Stasek v Banner Coffee Co., 159 N.W. 945 (Wis., 1916) (phosphorus matches not a poisonous drug or chemical ;under poisons statute);- (2) MeClaren v G. S. Robins 8, Co., 162 S.W. (2d) 856 (Mo., 1942) (carbon tetrachloride not a poison under . poisons statute) (3) Richardsqn v De Luca, 53 S. (2d) 199 (La., 1951) (benzol not a coal oil or fluid used for illuminating or burning purposes under statute regulating sale of certain petroleum products) See, Larximore v American National insurance Co., 89 P. (2d) 340 (Okla., 1939) (statute prohibiting laying out of poison in unsafe place did not cover explosion of rat poison) () Cases hoMajk vehdor not liable wheria violation of statute was not the proximate cause of the injury com-1 2 3 4 filainstLof: (1) McKiBbin v F. E. Bax & Co., 113 N.W. 158 (Neb., 1907) (sale by druggist to minor of poison which was adtadni$te&ed to third party) (2) Martin v Jonesboro Drug Co., 7 jia. App. 262 (1928) (failure to label poison not the cause of child's consuming,- it) ' (3) People's Service Drug Stores v Somerville, 158 Atl. 12 (Md., 1932) (no causal connection between failure to label and injury) (4) Eekexd's Inc. v McGhee, 86 S.W.I(2d) 570 (Tenn., 1935) (causal connection between failure to label and injury broken by intervening act of plaintiff in attempting suicide) 19 (5) Pauli v McBride, 263 N.W. 877 (Mich., 1935) (responsibility for explosion conjectural) (6) Richman v Follman, 23 M.Y.S. (2d) 917 (1940) affimed, 36 N.E. (2d) 908 (N.Y., 1941) (no causal con nection between failure to label and injury) (d) general References8 Refer to material cited in Section A, p. 12. 5. A vendor may be negligent by failing to give an appropriate warning or caution of any danger incident to the normal use of the product sold which a user would not ordinarily discover, where the vendor knows or has reason to Comment; It has been noted in Section A, p. 12 that the manufacturer is frequently held liable for failure to warn the public of latent dangers in the products which he manufactures. Vendors who are not manufacturers have generally escaped this particular type of liability by reason of the difference in the legal duty involved* In the case of the manufacturer, the duty extends to.a warning of all danger which the manufacturer actually knows or should know. Since the manufacturer should know the composition and formulation of the products which he manufactures, in the ordinary case he. is held to have knowledge! of the risks Involved in the use of his products. It is his duty to ascertain unknown facts concerning his producti by tests or otherwise where a reasonable person would do so. In the case of the. ordinary vendor,.the duty extends to a warning of any danger which the vendor actually knows ox has rea son to know from the facts which are apparent, po him. It is not his duty to ascertain unknown facts about the prod uct which fee sells. The important question ii what he actually knows and what would a reasonable person conclude from .the knowledge. (a) Cagas^Mldlng.,,ygndgr. .liable. fm'.lallijira, to jtara... of...dangers In the use of. products sold; (1) Fisher v Golladay, 38 Mo. App. 531 (18B9) (druggist failed to label sulphuric acid) (2) Tucker v Graves, 88 So, 40 (Ala,, 1920) (druggist failed to label arsenical compound "poison") (3) Farley v Edward E. Tower & Co., 171 N.E. 639 (Mass., 1930) (dealer failed to warn of inflammable nature.of combs) ' (4) Ft* Wayne Drug Co. v Flemion, 175 N.E. 670 (Ind., 1931) (dealer failed to warn of inflammable nature of/benzol) (5) Rasmussen v Benson, 280 -N.W. 890 (Neb., 1938) (seller failed to label poisoned bran "poison") (6) Treacy v F. W. Woolworth Co., 1 N.Y.S. (2d) 919 (1938) (memorandum opinion; ground of decision not clear) (7) Gall, v Union Ice Co., 239 P. (2d) 48 (Cal., 1951) (no label on drum of sulphuric acid) (b) Cases.JiaMing vendor .not liable wherel he did not know or have reason to know of danger in the use of prod ucts sold; (1) Gibson v Torbert, 88 N.W. 443 (jlowa, 1901) (druggist did not know of dangerous nature of phosphorus) (2) Pefaslee-Gaulbert Co. v McMath's! Adm'r., 146 S.W. 770 (Ky., 1912) (wholesaler did not know of in flammable nature of paint dryer) (3) MoCrOssin v Noyes. Bros. & Cutlet, 173 N.W. 566 (Minn., 1919) (wholesaler did not know of poisonous ia|9diens: in insecticide) (4) Stfflith v S. S. Kresge Co., 79 F. (2d) 361 (Mo., 1935) (dealer did not know of inflammable nature of combs) (5) Guyton v S. H. Kress & Co., 5 S*E. (2d) 295 (s.C., 1939) (dealer did not have reason to know of in flammable nature of fingernail polish) (6) Bel V Adler, 11 S.E. (2d) 495 1940) (dealer did not know of dangerous properties of cosmetic) (7) Kratk v American Stores Co., 59 ;A (2d) 138 (Pa., 1948) (dealer did not know of inflammable nature of stwe polish) (8) Singer v Qk.en, 87 M.Y.S. (2d) 6$6 (N.Y., 1949) (druggist did not have reason to know of danger in oaiattine lotion containing phenol) (9) Bftljtaett v Pilot Products Co., 2^5 P. (2d) 525 (Utah,. 1951) (distributor of permanent wave solution dim-not know of dangerous feature of any ingredient in product) (10) Rlifgefad v I. Magnin & Co., 239 ;P. (2d) 848 (Wash., 1952) (dealer did not know of inflammable nature of cocktail robe) ' () CaaeaJbfli^ifl^^ .lM.bM..^.er.e,,s.er knew, or could have discovered danger; (1) Anfcwrandt v Joachim, 177 111. App. 158 (1912) (no label on drug; jury found that user knew of dAer) ! (2) McCjttWsin v Noyes Bros. & Cutleri, 173 N.W. 566 (Minn., 1919) (name "Roach Doom" suggested danger) (3) EwtJWf v Sears, 280 Pac. 56 (Wash., 1929) (properly labeled sodium fluoride mistaken for salt) (d) Cases hoipiagu^or.;n5t..U.aM^_:^ie.ra....lnadeauate warning was not proximate, cause.of injury complained oft v Musser, 194 N.W. 672 (Neb., 1923) (no poison label on oil of mirbane used as throat gargle) Upa-aMfflh not liable, where the danger was known bv the particular profession using the product: V State, 105 N.Y.S. (2d) 735 (1951) (no label on blood plasma administered by physician) U) L: (ij Restatement, Torts secs. 899-402 (2) I, (3) A - (None) (1)? 86 A.L.R. 947 - "Duty of manufacturer or seller to warn of latent dangers incident to article as a class, as distinguished from duty with respect to defects in particular article." 6. A vendor who Iwdtertakas to make claims for the safety of a product which he sells may be negligent bv falling -thfi. -3.nd_jjgcHraf/y.__3f___s_j_i_c_t_u____e_B__rq__sen__t_a_t_lo__n__s__w__h_e_n___th__e_y__-_a_r_e___i_n___f_a_c_t__false oninaccurate. Comments The venla|osrymmaay or may not have the dpitty to warn of dangers incident to the use of the products which he Us, under the principle noted at p. 17. However, as in the case of the manufacturer, once the vendor assumes make representations,as to the safety of a prdduct, he assumes the corollary duty to exercise due care that the presentations are'fcrtithful, accurate, and not misleading. In cases where the manufacturer is involved, label stements ordinarily constitute the character of the misrepresentation. In cases where the vendor is involved, il misrepresentatfoB!? .e generally in issue although liability may accrue by indorsement of label claims made by s manufacturer, by advertising, or through provisions in written contracts. 20 (a) Cases holding vendor liable for negligent misrepresentation: (1) Darks v Scudders-Gale Grocer Co., 130 S.W. 430 (Mo., 1910) (oral representation by wholesaler to dealer of safety of medicinal preparation) (2) Marsh v Usk Hardware Co., 132 Pac. 241 (Wash., 1913) (oral representation by dealer of manner in which explosive could be safely used) (3) Hoar v Rasmisen, 282 N. W. 652 (Wis., 1938) (oral representation by druggist of ingredients in drug compound) (b) Caaes-holding vendor not liable; (No cases) (c) SeagEfiJJMEESaes.* (No pertinent references) 7 not- ordi,narily.-disco_ver: the, mistake. dangerous product where a harmless one is requested where a user wn.ilrt PflmffiOht: This principle is generally invoked in the sale of drugs by retail druggists, although it has appli cability to the sales .of all classes of chemical products. The gravamen of this form of negligence is the fact that the buyer or user of the product is misled;into the belief that the product supplied is safe for the use for which the real product would be. It is another facet of the duty to warn of risks which are not apparent or easily dis coverable. The vendor may always show in defense of a claim based on this type of negligence that the mistake was not negli gent, as, for example, where the mistake was caused by the prior negligence of the manufacturer in mislabeling the product. However, it. should be noted that in many cases the courts apply the. doctrine of res ipsa loquitur or hold that real negligence is not essential where a dangerous drug is supplied in place of an innocent one. (a) (1) Thomas v Winchester, 6 N.Y. '397 (1852) (manufacturing druggist sold extract of belladonna for ex tract of dandelion) ; (2) Norton w Sewall, 106 Mass. lj43 (1870) (druggist sold laudanun for tincture of rhubarb)) (3) HansfQttti'.s Atbi'x. v Payne & Co., 74 Ky. 380 (1875) (druggist sold croton oil for linseed oil) (4) Walton v Booth, 34 La. Ann. 013 (1882) (druggist sold sulphate of zinc for Epson salts) (5) Davis v Guarnieri15 N.E. 3^0. (Ohio, 1887) (druggist sold oil of bitter almonds for oil of sweet almonds). (6) Smith v Hays, 23 111. App. 244 *(1887) (druggist sold extract of belladonna for extract of dandelion) (7) Brunswig v White, 8 S.W. 85 (Tex., 1888) (druggist sold morphine for quinine) (8) Kennedy v Plank, 97 N.W. 985 (Wis., 1904) (druggist sold copperas instead of Glauber's salt) (9J KhbSfel v Atkins, 81 N.E. 600 (Ind., 1907) (druggist sold acetanilide for phosphate of soda) (10) Tremblay v Kimball, 77 Atl. 504 (Me., 1910) (druggist sold corrosive sublimate tablets for chloro- dyne .tablets) (11) Mor^n. v Bake Drug Co., 134 N;Y.S. 995 (1912) (druggist sold bichloride of mercury for triple bromide) (12) Bright v Howe, 150 Pac. 956 (Utah, 1915) (dealer sold boiled linseed oil for raw linseed oil) (13) iHGfear v j Graves, 88 So. 40 (. (la., 1920) (druggist sold poisonous arsenical compound for paregoric) (14) Hdeteteifl v Cook, 140 N.E. 7i$5 (Ohio, 1923) (druggist sold citric acid for Epsom salts) (15) CtobtwuGoal Co. v Sexton, 10! So. 716 (Ala., 1925) (druggist sold tablets containing poison in place of calomel tablets) (16) Model' Dfrpg Co. v Patton,. 270 S.W. 998 (Ky., 1925) (druggist placed wrong label on poisonous medicine) (17) Sills v Undmark, 225 N.W. 3 5 (Minn., 1929) (druggist sold raw linseed oil for cotton seed oil} ret#!let and wholesaler jointly liable) (IS) CatapbpH v Stamper Drug Co., 1277 Pac. 770 (Colo., 1929) (druggist sold strychnine instead of quinine) (19) Basok v Katz Drug Co., 127 P. (2d) 506 (Ka., 1942) (druggist sold atropine for eserine) (20) Phillips v Doyle, 207 p. (2d) 465 (Ka., 1949) (delivery by dealer of kerosene and gasoline mixture for kerosene.) (21) CteSBB v Equitable Powder Mfg.; Co., 94 F. Supp. 126 (Ark., 1950) (dealer-manufacturer sold delayed aejslsa caps for instantaneous; caps) (1) Marshall, 11 N.W. 392 (Mich., 1882) (druggist sold sulphate of zinc for Epsom salts; negli- gee .nqt .proved) (2) Howes tabs, 42 N.E. 303 (lnd, 1895) (druggist sold Tartaric acid for Rochelle Salts) (c) (1) (1) Ajjrtljiur, "Law of Drug and Druggists" (1935) (2) Situr., S'ome Liabilities of the Physician in the Use of Drugs, 17 Rocky Mt. L- Rev. 131 (1945) (3) 1336; 44 A.L.R. 1482 - "Liability of druggist for injury in consequence of mistake. (11) 13 A.L.R. 939 - "Mistake as to chemical or product furnished, or misdescription thereof by label Ox otherwise, as basis for liability for personal injury or death resulting from com- binwtion with other chemical." 8. A vendor may be negligent bv selling a i product. which he knows or has reason to know to be unsafe for its in tended use. Comment a Section A, p. IS sets forth the principle that the manufacturer may have a duty to test and inspect his product before placing It on the market. Conversely, the vendor of a product which ;is manufactured by another is not generally required to test and Inspect, and must only exercise the care and competence of a reasonable vendor as to dangers or defects which he has an opportunity to discover. Where the product sold is purchased by the vendor and resold by him in the manufacturer's original package or closed container, the vendor is not generally responsible for harm resulting;from efangers in the product since he has no duty to open the package or container to inspect the 21 contents. Therefore, the vendor is rarely held liable in such cases where the product is dangerous by reason of poisonous or harmful substances in it whether the substances are part of the formula of the product or are foreign substances which have entered the product during the course of manufacture. Where the product sold is purchased by the vendor in bulk or unpackaged form, the vendor is generally not liable for harm attributable to a dangerous for mula unless he knew or had reason to know of the risk. However, he may be held liable' for selling a product pur chased in hulk or unpackaged form containing harmful foreign matter where the adulteration or contamination is traced to the vendor and where the vendor did not take proper precautions against this. Section A, p. 16 sets forth the principle that the manufacturer who undertakes to package his product may be negligent in packing the contents -in the container in a manner which is likely to cause an explosion when the container is opened or unpacked. Section A, p, 17 sets forth the principle that the manufacturer who under takes to package his product may be negligent in using a defective container which may cause harm whan it is handled. These principles are equally .applicable to the!vendor who is not a manufacturer but who undertakes to package the product himself. In the absence of-this undertjaking, the vendor is subject to liability only where he knows or has reason to know that, the-contents Of the container have been so packed or contained as to render the product likely to explode or where- ttoe-.-edirtalnex is patsatly^efsetive. (a) 3sipndfiMe: (1) Newell v Reid, J.55 S.W. 352 (High., 1915} (sals by dealer of unpackaged bran contaminated with arsenic) (2) Heinemann v Barfield, 207 S.W* ^"8 (Ark., 1918) (sale by dealer of flour contaminated with arsenic) (3) Hallenbedk v S. Wander & Sons Chemical Co., 189 N.Y.S. 334 (N.Y., 1921) (packer-and distributor liable for explosion of can containing Chlorinated lime). (4) Rasmussen v Benson, 2B0N.W. 8901 (Neb., 1938) (sale by dealer of unpackaged bran contaminated with arsenic) (5) Sagaflowlch V Hachifcian, 35 A. (2d) 343 (Pa., 1944) (supplier liable who placed chemical liquid in defective container and sold it) (b) Cases hol^lna vendor not liable under, this principle! (1) Hasbwuek v Armour & Co., 121 N.W. 157 (Wis., 1909) .(sale by dealer of soap containing embedded needle) (2) Eusiofe v Thorndike & Hist, Inc., 112 M.E. 1025 (Mass., 1916) (can of lime packed and sold by dealer) (3) Bsrafango v Hinckley Rendering Co#, 119 N.E. 746 (Mass., 1918) (sale by dealer of soap containing embedded needle) (4) Blanchard- v Kronick, 169 N.E. 438 (Mass., 1929) (sale by dealer of feed containing Paris Green; liability in warranty, however) (5) Howard V Jacobs* Pharmacy Co., 189 S.E. 373 (Ga., 1937) (sale by druggist of deleterious proprietary msdioina) (6) Cundiff v F. W. Woolworth Co., 290 Ohio Law Abstract 123 (1938) "(sale by dealer of trade-marked cosmetic product containing poisonous substance) (7) Eliasfeath'Arden, .Inc. v Brown, 107 F. (2d) 938 (Pa., 1939) (sale by dealer of patent toilet prepara tion: containing poisonous substance) (8) Marie? v Pearlman's R.R. Salvage iCo., 52 S.E. (2d) 3 (N.C., 1949) (sale by dealer of can of glue) (9) Rtofistad v I. Magnin & Co., 239 P. (2d) 848 (Wash., 1952) (sale by dealer of cocktail robe)' (c) QsBSSlJMsmi&S&CD 3a4&iia^..agyclloi?,ddl9e! Cl.) Prosser, Torts, sec. 83, p. 681 (1941) (U) Restatement, Torts secs. 399-402 (2) - (None) (3) damtlttCttSs - (None) e * # C. Special Problems in Negligence Cases Involving Vendors in General a. Damages Note; The amount of damages awarded in tort actions for personal injuries or property damage depends upon the cts and circumstances in each case. As a general rule, awards are not set aside as excessive unless they do not iar some reasonable proportion to the injury or loss sustained by the plaintiff. In determining whether or not mages allowed in a personal injury case are excessive, the courts consider relevant such facts as the age and a1th of the injured party, his earning power piior and subsequent to injury, any disability left as a result of e injury, the amount of money expended for care, and the physical pain suffered. Punitive damages may be allowed ere the tortfeasor's conduct is malicious or wanton. In cases involving property damage, the measure of damages usually the difference in market value of the property immediately before and immediately after damage. The cases which are noted below are illustrative of awards in chemical-products liability cases involving neggence. (a) Oases where damage awards were not set aside as excessive; (1) Marsh v Usk Hardware Co., 132 Pac. 241 (Wash., 1913) ($20,000 for loss of sight) (2) West Disinfecting Co. v Plummer, 44 App. D.C. 345 (1916) ($2,000 for- injury to eyes) (3) Mossrud v Lee, 157 N.W. 758 (wis., 1916) ($450 for loss of eight cows) (4) Kolberg v Sherwin-Williams Co., 269 Pac. 975 (Cal., 1928) ($6,100 for damage to orchard and loss of large portion of orange crop) (5) White v National Bank of Commerce, 278 Pac. 9X5 (Cal., 1929) ($2,300 for damage to fruit in orchard) (6) Read Phosphate Co. v Vickers, 11 Tenn. App. 146 (1930) ($4,500 for acid burns) (7) Rasmussen v Benson, 280 N.W. 890 (Neb., 1938) ($3,500 for loss of cows, dairy business, mental shock and death of owner) (8) Sinclair Refining Co. v Henderson, 122 S.W. (2d) 580 (Ark., 1938) ($19,000 in wrongful death action) (9) Pease v Sinclair Refining Co., 104 F. (2d) 183 (N.Y., 1939) ($2,400 ifor severe bums and loss of one eye) f { i. 22 (10) White v General Chemical Co., 136 S.W. (2d) 345 (Mo., 1940) ($1,500 for severe burns) (11) Orr v Shell Oil Co., 177 S.W. (2d) 608 (Mo., 1943) ($40,000 reduced by remittitur to $20,000 for skin irritations and chronic nephritis) (12) Saganowich v Hachikian, 35 A. (2d) 343 (Pa., 1944) ($12,000 for loss of one eye) (13) Luthringer v Moore, 190 P (2d) 1 (Cal., 1943) ($10,000 for personal injuries and economic loss) (14) Alston v J. L. Prescott Co., 76 A. (2d) 686 (N.J., 1950) ($1,500 for injury to eye) (15) Kennedy v Clayton, 227 S.W. (2d) 934 (Ark., 1950) ($4,460.78 for damage to growing cotton) (16) McKennon v Jones, 244 S.W. (2d) 138 (Ark., 1951) ($1,500 for loss of honey bees and honey) (17) Gall v Union Ice Co., 239 P. (2d) 48 (Cal., 1951) ($100,000 for personal injury resulting in death) Se'e, Litton v Travelers Ins. Co., 88 F. Supp. 76 (La., 1950) ($17,500 for personal injuries and loss of past and future earnings resulting from chlorine poisoning) See also, W. B. Bynum Cooperage Co. v Coulter, 244 S.W. (2d) 955 (Ark., 1952) (measure of damages for crop loss). (b) ...OS. .flffiar (1) E. I. DuPont de Nemours and Co., v Baridon, 73 F. (2d) 26 (Iowa, 1934) ($7,500 for damage to gladiolus faulblets.) (2) J. R. Watkins Co. v Raymond, .184 F. (2d) 925 (Minn., 1950) ($27,000 for loss of hair, eyebrows and eyelashes) (3) Marosi v J. W. Robinson Co., 238 P. (2d) 78 (Cal., 1951) ($11,721 for personal injuries) ( = ) Case.S. where, damage awards were set aside as excessive: (1) Standard Gil Co. v Tierney, 17 S.W. 1025 (Ky., 1891) ($25,000 for loss of use of one arm, permanent facial disfigurement and othejr injuries) _ (2) Noonan v-.Great Atlantic & Pacific Tea Co., 135 Atl. 822 (N.J., 1927) ($5,000 for nose injury reduced to $3,500) (3) Grinrtell v Carbide & Carbon Chemicals Corp., 276 N.W. 535 (Mich., 1937) (total verdict of $148,500 for- multiple personal injuries and deaths reduced to $101,500) (4) Mondine v Sarlin, 81 P. (2d) 903 (Cal., 1938) (verdict of $20,000 for extensive burns reduced to $10,000) (5) Sinclair Refining Co. v Tompkins, 117 F. (2d) 596 (Mi ss y 1941} (vsrdict of $7^500 sst ssids 3s in-* Glutting lass of earnings not proved) (d) General fiel^srenees: U) .attUOfiW19Ped3,a,S.= (2) (1) Bauer, Fundamental Principles of The Law of Damages in Medico-Legal Cases, 19 Tenn. L. Rev. 355 (1946) (ii) Developments in the Law-Damages - 1935-1947, 61 Harv. L. Rev. 113 (1947) (3) AnooiaiiigiS! (i) M,. A.L.R. (2d) 550 - "Inadequacy of damages for personal injuries resulting in death of infant." (ii) 16 A.L.R. (2d) 393 - "Adequacy of damages in action by person injured for personal injuries not resulting in deaths" (iii) 17 A.L.R. (2d) 872 - "Adequacy of damages for personal injuries resulting in death of adult." Note The two most common affirmative defenses in negligence actions are assumption of risk and contributory negligence. In most jurisdictions, either defense completeiy bars a plaintiff from recovery, although there are a few jurisdictions having "comparative negligence" statutes which authorize the allocation of damages according to the degree of fault of the parties. The defense of assumption of a risk rests upon the plaintiff's consent to re lieve the defendant of a legal duty toward him, and to take his chances of harm from a particular risk. The con sent may be found from either express agreement or by implication from the conduct of the parties. The defense of contributory negligence is premised upon negligent conduct of the plaintiff which contributes as a legal cause to his damage. Frequently, the two defenses overlap. In chemical-products liability cases, contributory negligence is more frequently encountered than assumption of the risk. The cases which are listed below involve contributory negligence. A question which is likely to arise in chemical-products liability cases is the effect of contributory negligence upon liability based on the violation of a statute. Unless the statute is intended to protect particular classes of persons against their own recognized inability to protect themselves, contributory negligence is generally regarded as a valid defense. (a) g3A?s-,whsrs.,MiLtEibwt.9ry, aeaUgencei wee, fgml.; (1) Hackett v Pratt, 52 111. App. 346 (1893) (action against druggist for sale of poison barred where injured party pointed out wrapped bottle of poison as his own) (2) Ankenbrandt v Joachim, 173 111. App. 158 (1912) (user negligent in using drug although not labeled with caution) (3) Huckleberry v Missouri Pac. Ry. Co., 26 S.W. (2d) 980 (Mo., 1930) (violation of ICC regulations for transportation of explosives, negligence per se but subject to defense .of contributory negligence) (4) Eckerd's Inc. v McGhee, 86 S.W; (2d) 570 (Tenn., 1935) (attempted suicide by minor in taking drug) (5)-Gaw v Lake Erie Chemical Co., 11 N.E. (2d) 982 (111., 1937) (negligent handling of tear gas fountain pen gun) (6) Parton v Phillips Petroleum Co., 107 S.W. (2d) 167 (Mo., 1937) (pouring kerosene on newly kindled fire, held negligence as a matter of law) (7) Ellis v Orkin Exterminating Co., 143 S.W. (2d) 1C8 (Tenn., 1939) (trespasser sustained injury) (8) Sinclair Refining Co. v Tompkins, 117 F. (2d) 596 (Miss., 1941) (pouring kerosene mixture into cookstove, held negligence as a matter of law) 23 (9) Harder v Maloney, 26 N.W. (2d) 830 (Wis., 1947) (injury sustained while attempting a criminal act) (10) Dart v Pure Oil Co., 27 N.W. (2d) 555 (Minn., 1947) (pouring kerosene on warm stove could bar re covery although defendant violated statute) (11) Richardson v De Luca, 53 S. (2d) 199 (La., 1951) (use of benzol near heat despite warning) (fa) EMggJ^gXS-^OAEiMltoryLjiiegliggDjce was not found; (1) Gately v Taylor, 97 N.H. 619 (Mass., 1912) (using stove polish on heated stove not negligence as a matter of law) (2) Armstrong Packing Co. v Clem, 151 S.W. 576 (Tex., 1912) (failure to test soap before using it not negligence) (3) Mossrud v Lee, 157 N.W. 758 (wis., 1916) (negligence in using "Quack Gra'ss Destroyer" a question for jury) (4) Hendry v Judge & Dolph Drug Co.* 245 S.W. 358 (Mo., 1922) (failure to examine label on box of drugs not negligence) (5) Campbell v Stamper Drug'Co., 277 Pac. 770 (Colo., 1929) (failure to determine whether bottle con tained strychnine- or quinine not negligence as a matter of law). (6) Read Phosphate Co. v Vickers, 11 Tenn. App. 146 (1930) (inexperienced handler of drum of sulphuric acid) (7) Marigny v Dejoie, 172 So. 808 (La., 1937) (failure to observe word "poison" and skull and crossbones on small pills) (8) Pease v Sinclair Refining Co., 104 F. (2d) 183 (N.Y., 1939) (failure to test chemical before using it not negligence as a matter of law) (9) Bennett Drug Stores v Mosely, 20 S.E. (2d) 208 (Cja., 1942) (poison sold to intoxicated person, plaintiff held negligent but recovery allowed under last clear chance doctrine) (10) Maize v Atlantic Refining Co., 41 A (2d) 850 (Pa., 1945) (failure to heed warning on label, held question for the jury) (c) SgQmjJMmQffitS.! (1) (1) Prosser, Torts, sec. 52 (1941) (1.1) Cooley, Torts, secs. 484-489 (1932) (iii) Restatement, Torts, sec. 463 (tv) 38 Am. Jur., Negligence, secs. 174-233 (2) LmLFSiPt|toil?-i Ci) BeMah, Contributory Negligence, 21 Harv. 1. Rev. 233 (1908) (ii) Greeni, Contributory Negligence and Proximate Cause, 6 N.C.L. Rev. 3 (1927) (iii) Padway, Comparative Negligence, 16 Marq. L. Rev. 3 (1931) (iv) Mole and Wilson, A Study of Comparative Negligence, 17 Cornell L.Q. 333, 604 (1932) (v) Campbell, Wisconsin's Comparative Negligence Law, 7 Wis. L. Rev. 222 (1932) (vi) Lowndps, Contributory Negligence, 22 Geo. L.J. 674 (1934) (vii) DeMuth, Derogation of the!Common Law Rule of Contributory Negligence, 7 Rocky Mt. L. Rev. 161 C|L935) (viii) Wildejrman, Contributory Negligence of Infants, 10 Ind. L.J. 427 (1935) (ix) Gregory, Loss Distribution by Comparative Negligence, 21 Minn. L.Rev. 1 (1936) (x) James * Last Clear Chances jA Transitional Doctrine, 47 Yale L.J. 704 (1938) (xi) Prosser, Contributory Negligence as Defense to Violation of Statute, 32 Minn. L. Rev. 105 (1948-) (discussing Dart viPure Oil Co., supra) (3) Annotations a (i) 50 A.JUR. 1462 - "Poison in article not intended to be eaten or tasted, liability for injury r .death _in swallowing." ! (ii) 151 A.L.R*. 1261 - "Petroleum products, contributory negligence in respect of delivery of, resulting in explosion." : (iii) 171 A.L.H. 894; 10 A.L.R. (2d) 853 - "Contributory negligence as a defense to cause of action based upon violation of statute relating to explosives or volatile oils." C f + Note: Frequently, the manufacturer or other vendor defends a damage suit in product liability cases with the ontention that some one else in the line of distribution of his products was Negligent and that this subsequent egligence was the proximate cause of the injury complained of and therefore operated to relieve the manufacturer r other vendor of responsibility. However, in the absence of willful negligence, the courts generally hold that rtervening negligence Is a foreseeable risk and] therefore does not relieve the first negligent party of liability. ie manufacturer and subsequent tortfeasor are generally jointly liable in such a case. The problem most frequently rises in chemical-products liability cases where the retailer has actual knowledge or imputed knowledge of the rior negligence of the distributor or manufacturer. (a) CasesJiolding iatervening.negligence no defense: (1) Burk v Creamery Package Mfg. Co.102 N.W. 793 (Iowa, 1905) (purchaser carelessly left unlabeled sulphuric acid unguarded, supplier held liable) (2) Moehlenbrock v Parke, Davis & Co., 169 N.W. 541 (Minn., 1918) (negligence in selling impure ether not relieved by subsequent negligence of physician in administering it) (3) Kentucky Independent Oil Co. v Schnitzler, 271 S.W. 570 (Ky., 1925) (explosion of gasoline and kerosene mixture; manufacturer liable although retailer was also negligent) (4) Ellis v Lindmark, 225 N.W. 395 (Minn., 1929) (wholesaler and retailer jointly liable for sale of dangerous drug) (5) Farley v Edward E. Tower & Co., 171 N.E. 639 (Mass., 1930) (manufacturer and dealer jointly liable for failure to warn of inflammable nature of combs) 1 { -- 24 (6) American Oil Co. v Nicholas, 157 S.E. 754 (Va., 1931) (negligence of wholesale distributor in selling gasoline and kerosene mixture as kerosene not relieved by subsequent negligence of retailer) (7) Frazier v Ayres, 20 S. (2d) 754 (La., 1945) (jobber selling kerosene liable although retailer also negligent) (8) Gall v Union Ice Co., 239 P. (2d) 48 (Cal., 1951) (negligence of manufacturer and distributor not relieved by negligence of'buyer) Casea chexe. intervening, negligence was a defenses (1) Catlin v Union Oil Co., 161 Pac. 29 (Cal., 1916) (dealer sold gasoline and kerosene.mixture as kero sene after notice by manufacturer of mistake; held, resale was culpable and relieved manufacturer) (2) Walton v Sherwin-Williams Co,, 191 F. (2d) 277 (Ark., 1951) (dicta that negligence of farmers or airplaine pilot in application of herbicide would afford a complete defense to manufacturer of the herbicide) (<=) Smsa&l-BMssaasas,: U) (1) Prosser, Torts, sec. 49 (1941) (ii) 35 C.J.S., Explosives, p. 235 sec. 6 subsec. d. (lii) 22 Am. Jur. 195, Explosions and Explosives, sec. 71 (2) Lg^UESSlSdijals: - (Nona) (3) hms&g&iO&ss (i) 164 A.L.R. 371 - "Intervening purchaser's knowledge of defects in or danger of article, or failure to'inspect therefor, as affecting liability of manufacturer or dealer for personal injury or property damage to subsequent purchaser or other third person." d. AJlaE.qi.es, Refer to Section 3, p. 33 "Allergies (Negligence and Warranty Actions)" where the annotation combines negli gence and warranty cases involving the subject of the allergic plaintiff. e. Disclaimers, of. Uafeility_g^ HSte: The general rule is that a manufacturer or other vendor may effectively disclaim by contract or by label ing liability arising from the use of a product which he manufactures or sells where it appears that the terms of the disclaimer were brought home to the plaintiff and that the express terms of the disclaimer cover and apply to the particular negligence involved. However, the general rule rarely results in absolving responsibility where dangerous products are concerned. Courts either hold that, as a matter of public policy, a disclaimer of liability arising from harm caused by the use of dangerous products is void and inoperative or hold that, as a matter of con struction, the risk created and the ham resulting do not fall within the scope of the terms of the disclaimer. Disclaimers are generally more effective in claims based on breach of warranty, however. It may be noted that where disclaimers are employed by labeling or otherwise and brought home to the complaining party, the latter would ordinarily be apprised of the risk and barred from recovery under the doctrine of assump tion of.risk. However, this aspect has not been fully developed in chemical-products liability cases. (a) C_a_-ses. holding a disclaimer effective; (1) Charles Lachmari Co. v Hercules Powder Co., 79 F. Supp. 206 (Pa., 1948) ("....Buyer assumes all risk and liability whatsoever resulting from the use of such materials...") (2) Gibson v California Spray-Chemical Corp., 188 P. (2d) 316 (Wash., 1948) (disclaimer effective as to warranty; not clear as to effect on negligence) See also, Fairbanks, Worse & Co. v Consolidated Fisheries Co., 190 F. (2d) 817 (Del., 1951) (disclaimer effective as to negligence; not effective as to warranty due to conflict with express warranty) (*>) G3^..hPl4iiia^i5^iaerJjMie4t.le; (1) E. I. DuPont de Nemours & Co., v Baridon, 73 F. (2d) 26 (Iowa, 1934) (disclaimer effective as to .warranty but not as to negligence) (2) See, Ebers v General Chemical Co., 17 N.W. (2d) 176 (Mich., 1945) (express representation super seded disclaimer of warranty) (3) Gall v Union Ice Co., 239 P. (2d) 48 (Cal., 1951) (disclaimer in contract between buyer and seller ineffective as to third parties) (c) General References; (1) !Mg-^SdJna^BMiae..(i) Prosser, Torts, sec. 51, pp. 380-385 (1941) ^ (ii) General Digest, Contracts, key no. 114. (3) Annotations; - (None) f. flesjpsa., .jogpljur Note; A manufacturer or other vendor may be held liable for harm resulting from the use of a product supplied without actual proof of negligence where the doctrine of res ipsa loquitur is applicable. This doctrine is usually applicable where (1) the accident which has occurred is of the type which is usually caused by someone's negligence, (2) the instrumentality causing the accident was within the exclusive control of the defendant, and (3) the possi bility of contributory negligence on the part of the plaintiff is eliminated. There have been few claims in chemical-products liability cases which have been brought under the theory of res ipsa loquitur. The principle does find common application in cases involving explosion of bottles of carbonated beverages and contaminated food in sealed containers. Procedurally, the doctrine when it is applied may operate in two ways, depending on the law of the particular jurisdiction involved. Under the majority view, res ipsa loquitur is but a form of circumstantial evidence which 25 establishes a prima facie case for the plaintiff invoking it. The doctrine operates to avoid a directed verdict for defendant at the conclusion of plaintiff's proof, but does not operate to compel the introduction of rebutting evidence by the defendant at the risk of a directed verdict for plaintiff. Under the minority view, however res ipsa loquitur is given the effect of a presumption of law which compels the defendant to rebut the inference'of negligence established by res ipsa loquitur or suffer an adverse judgment as a matter of law. Under either theory the quantum of evidence required to rebut the inference of res ipsa loquitur varies with the factual circumstances* of each case. Evidence by the defendant showifig that the case is not one in which the doctrine is applicable may result in a verdict directed for the defendant! since the inference of negligence has been rebutted. However, evi dence admitting the applicability of the doctrine but tending to establish due care on the part of the defendant, usually frames a proper question of negligence!for the jury. ' (a) (1) Ectelstain v Cook, 140 N.S. 765 (Ohio, 1923) (sale of wrong drug) (2) Hertz ler vManshum, 2.00 i,W..15$ (Mich., 1924) (flour contaminated with arsenate of lead) (3) Alston v J. L. Prescott Co., 76 A. (2d) 636 (N.J,, 1950) (explosion of bottle of laundry fluid) See also., Litton v Travelers Ins. Cp., 88 F. Supp. 76 (La., 1950) (escaping chlorine; non-product lia bility case) (b) : (1) Rtadck v Thorndike &Hi*, Inc., 1112 N.E. 1025 (Mass., 1916) (explosion of can of lime could have occurred without fault of defendant packer who was not the manufacturer) (2) Bl|nch4}?d v Xronicfc, 169 N.E. 438 (Mass., 1929) (feed containing Paris Green) (3) Sierocinski v E. I. DuPont de Nemours and Co., 25 F. Supp. 706 (Pa., 1938) {explosion of dynamite cap) (4) Henderson v National Drug Co., 2p A. (2d) 743 (Pa., 1942) (injection of drug) (5) Kramer v R. M. Hollingshead Corpj., 75 A. (2d) 861 (N.J., 1950) (solvent exploded outside of con tainer) (c) S(g6a)eTrMUfisKJcMas'n7gymS^vaaUS.SS.! Standard Products Co., 243 S.W. (2d) 207 (Tex., 1951) (self-injection of drug) (1) :tefejjfld-5asy.si.sBs<Uaa; (ii)) Prosser, Torts, secs. 43-44 (1941) (ii) 5 Wigmore on Evidence, sec. 2509 (1923) (ill) 38 Am. Jur., Negligence, Secs. 295-311 (2) ('Di Bohlen, The Effect of Rebbttable Presumptions of Law upon the Burden of Proof, 68 U. Pa., L. Rev. 307 (1920) (it) McCormick, Charges on Presumptions and Burden of Proof, 5 N.C.L. Rev. 291 (1927) (iii) Meckel & Harper, Effect of the Doctrine of Res Ipsa Loquitur, 22 111. L. Rev. 724 (1928) (lv$ Miles, Pleading Res Ipsa ijoquitur, 7 N.Y.U. L.Q. Rev. 415 (1930) (vi Morgan, Some Observations oncerning Presumptions, 44 Harv. L. Rev. 906 (1931) (vl) Carpenter, The Doctrine o Res Ipsa Loquitur, 1 U. Chi. L. Rev. 519 (1934) (vii) Rosenthal, The Procedural fects of Res Ipsa Loquitur in New York, 22 Cornell L.Q. 39 (1936) (viil) Prosser, The Procedural E jfect of Res Ipsa Loquitur, 20 Minn. L. Rev. 241 (1936) (ixj Carpenter, The Doctrine o: Res Ipsa Loquitur in California, 10 So. Cal. L. Rev. 166 (1937) (x) JeanMianc, Manufacturers Rev. 134 (1937) ability to Persons Other Than Their Immediate Vendors, 24 Va. L. (xi) MhE(aitte, Presumptions; Are; They Evidence?, 26 Cal. L. Rev. 519 (1938) (xii) Rroteset, ReS Ipsa Loquitur; In California, 37 Cal. L. Rev. 183 (1949) (xiil) SeaS/eyi, Res Ipsa Loquitur;; Tabula in Naufragio, 63 Harv. L. Rev. 643 (1950) (3) AG02SiliSafe.iS (i): 56 A.L.R. 593 - "Applicability of 'res ipsa loquitur ' to explosion of gases or chemicals" (ii) 167 A.L.R. 658 - "Res Ipsa Loquitur' as a presumption or a mere permissible inference." (iii) 4 Aj,L.R. (2d) 466 - "Res ipsa loquitur as applied to bursting of bottled beverages, food containers, etc." 9- Note; The general rules of evidence are applicable in negligence actions involving chemical products. The cisions cited below are illustrative. 1. The custom of other manufacturers similarly situated is admissible to show due care on the part of a de- ndant manufacturer, although courts differ as to the weight which should be attached to this. (a) Leading casss lb ,adPbrdjKi,th_,aij,s-ju^si! (1) Collins Baking Co. v Savage, 150 So. 336 (Ala., 1933) (2) McClaren v G. S. Robins a Co., 162 S.W. (2d) 856 (Mo., 1942) (a) Medeiros v Coca-Cola Bottling Co. of Turlock, 135 P. (2d) 676 (Cal., 1943) (4) Maize v Atlantic Refining Co., 41 |u (2d) 850 (Pa., 1945) 2. Evidence of compliance with governmental regulations, recommendations, or inspections is generally admis- )le to show due carb, although it is not decisive of.the issue. (a) I^adin2_as4LjJl^^ (1) Howson v Foster Beef Co., 177 Atl.j656 (N.H., 1935) (federally inspected meat) (2) BoyistOn v Armour & Co., 12 S.E. (2d) 34 (S.C., 1940) (federally inspected meat) (3) McClaren v G. S. Robins & Co,., 162 S.W. (2d) 856 (Mo., 1942) (weight given to label approval by Surgeon; General of the United States) (4) PaolineiLli v Dainty Foods Manufacturers Inc., 54 N.E. (2d) 759 (111., 1944) (government inspected chicken oil) _, (5) Maize v Atlantic Refining Co., 41 A. (2d) 850 (Pa., 1945) (label approval by Surgeon General of the United States not determinative in Pennsylvania) r # r' * { L 26 (6) Ebers v General Chemical Co., 17 N.W. (2d) 176 (Mich., 1945) (recommendations of United States De partment of Agriculture not determinative in Michigan) 3. Evidence that third parties received similar injuries from same product is admissible to establish the dan gerous nature of the product or to negate: the probability of causation through a particular allergy. (a) LaadiDSLsasss-iD-afififlx'd.with this-Euiat (1) Henderson v National Drug Co., 23 A. (2d) 743 (Pa., 1942) (2) Carter v Yardley, 64 N.E. (2d) 693 (Mass., 1946) See, Morris, Proof of Safety History in Negligence Cases, 61 Harv. L. Rev. 205 (1948) 4. Questions-to witnesses as to whether a particular label should convey adequate warning of dangers of improper use to those who would us it commercially1 may be excluded as invasion of jury's province. (a) Casses i jg .jafippffLallfo,,KWikft* (l) Walton v Sherwin-Williams Qo., 191 F. (2d) 277 (Ark., 1951) (questions to plaintiff's witnesses who were experts in botany and! plant pathology as to whether the label on container of weed killer con veyed adequate warning) h. Note; The general rules of procedure are applicable in negligence actions involving chemical products. The de cisions cited below are illustrative. 1. Subject to certain modifications, it is improper for a court to require a defendant to reveal any secret formulas or trade secrets although it is proper for a court to require a party to allow an examination of ingredi ents of a product which has caused harm. - (a) Cases in which this principle was Involved: (1) Wiggins Chemical Co. v Berfy, 46 F. (2d) 622 (111., 1931) (satisfactory for defendant to submit formula to court for its confidential examination and inspection) (2) Reiss v Kirkman & Son, 273!N.Y.S. 7 (1934) (manufacturer can obtain portion of product causing in jury from plaintiff for chtenical analysis) (3) Lenerts v Rapidol Distributing Corp., 3 F.R.D. 42 (N.Y., 1942) (motion by defendant manufacturer under Federal Rule 30 (b) ;o limit scope of depositions and interrogatories, held that defendant was required to reveal ing edients of hair dye and to detail manner in which product should be used) (4) Hyman v Revlon Products Cotp., 100 N.Y.S. (2d) 937 (N.Y., 1950) (order granting examination of manufacturer limited to ingre lients of cosmetic and not to include formula disclosure; dicta that proportion of poisonous ingre lients could be obtained if analysis were unavailable or inadequate) (5) Putney v Du Bois Co., C.C.l 22, 198 (Mo., 1950) (defendant manufacturer required to answer inter rogatories as to ingredients, and proportions thereof of detergent despite contention that this would divulge trade secret) (6) Click v McKesson & Robbins, 10 F.R.D. 477 (Mo., 1950) (manufacturer'of sun tan lotion required to answer interrogatories as to ingredients but not as to the proportion of the ingredients) (7) Pierson v Roux Laboratories, C.C.H. 22, 242 (N.Y., 1951) (manufacturer required to divulge poisonous ingredients and proportionate quantity in hair dye by deposition where chemical analysis by plain tiff was iiiadequate but noli to divulge non-poisonous ingredients) (8) Levy v Roux Laboratories, 107 N.Y.S. (2d) 585 (1951) (manufacturer required to submit written state ment of ingredients of product and samples) See also; Lever Bros. Co. v Proctor & Gamble Mfg. Co., 38 F. Suppt680 , 683 (Md., 1941) and cases cited therein. 4 Moore, Federal Practice 2468 (2d ed. 1950) -- Professor Moore states: "There is no true privilege against discovery of trade jsecrets or other 'confidential' business information, but the courts nevertheless., will exercise jthelr discretion to avoid unnecessary disclosure of such information, particularly where the action is between competitors." See, 119 A.L.R. 1356 - "Joinder of manufacturer or packer and retailer or other middleman as defendants in action for injury to per son or damage to property of purchaser or consumer of defective article." See, O'Neal v Teeter, 11 F.R.D 180 (ill., 1951) (action against manufacturer of oxygen gas pressure regulator and dealers from whom regulator was purchased by plaintiffs for damages sustained in fire and explosion resulting frcjn use of regulator, held, the tort liability of the manufacturer and dealer were several and not joint and hence under Federal Rules of Civil Procedure, plaintiffs were entitled to dismiss action as to dealers in order to establish the requisite diversity of citizenship as basis fox federal jurisdiction) Section 3. Liability Of Vendors of Chemical Products for Breach of Warranty B. Liability of Vehdors other than Manufacturers for Breach of Warranty C. Special Problem^ in Warranty Cases involving Vendors in General A. Liability of Manufacturers for Breach of Warranty 1. A manufacturer is subject to liability for breach of either an express warranty or a warranty implied by law Comment; The general basis of liability!in warranty actions differs essentially from that in tort actions in that tort liability is based on the absence of diue care on the part of the manufacturer in making his product safe for 27 its intended use, whereas warranty liability is based on a violation of a contractual duty expressly assumed or im plied by law. It is always open for the manufacturer to show, however, that his product was put to an unintended use and that this was the proximate caufe of the harm complained of. Conduct on the part of the plaintiff, similar to contributory negligence, may also bar recovery in warranty actions. b. Liability, 2. A manufacturer is generally subject to! liability In warranty actions for harm resulting from a breach of warranty to the person pr pygpqrty 9f .any person who is in privity. witb_him. Coronentt It has been noted in Part I, Secjtlon 2 that the manufacturer is subject to liability in tort cases to the person or property of any person who raayi be expected to use his product or be in the vicinity of his product's probable use. Liability extends in favor of! remote vendees and users as well as parties with whom the manufacturer has dealbwith directly. On the other hand,|the manufacturer's liability in warranty actions is limited to those persons with whom the manufacturer has dealt! with directly or has assumed to deal with by means of labeling repre sentations. This is the rule in the majority of jurisdictions. However, a minority of jurisdictions have broken away from this view and hold the manufacture:? liable to:remote parties irrespective of contractual privity. These jurisdictions enlarge the ambit of liability on the ground of- public policy and social justice. The trend of the law, principally in food-products liability cases, is' in the direction of this minority approach. The Uniform Sales Act ido.es. not change the traditional, concept of privity. It may be noted that in the case of most chemical products, which leave the manufacturer in packaged form with a label on the container or labeling accompanying the product, requisite privity between the manufacturer and a remote party may be found on the basis that the manufacturer has by labels or labeling assumed to deal directly with whoever purchased or used the product. (a) personal.injuries..or properjiY-.ri3aaflaJa-jflWB.tfl. parties.! (1) Simpson v American Oil Co., 14 S.E. (2d) 688 (N.C., 1941) (manufacturer of insecticide liable for personal injury to purchaser 4m dealer where warranty was made on label) (2) Bbters v General Chemical Co., jl7 N.W. (2d) 176 (Mich, , 1945) (manufacturer of insecticide liable to purchaser from dealer for firoperty damage where express warranty was made in advertising pamphlets decided on mergeil j3riactpi.es olf . tort and .warranty! (3) Free v Slqss, 1.97 P. (2ifr} 854 !(Cal., 1948) (soap manufacturer liable to retail purchaser from whole- saler-where -express- warranty was made on label) (4) NorthsAmerican "Fertilizlsj? Co. ^ Combs, .212 S.W.. (2d) 536 (Ky., 1948) (dicta that fertilizer manu facturer would he- liable .to purchaser from dealer on- implied warranty) (b) SasgsjifiMiaa^J&ifgtSj^^ on the.ground of lack-gf, privity; (1) Cliff v California'Spray-Chemibal Corp., 257 Pac. 99 (Cal., 1927) (dicta that manufacturer of insecti cide would, not be liable.for -ppraonal injury to.;.purchaser from retailer) (2) SieroeirisJti v E. 1, DuPont de Nemours and Co., 25 F. Supp. 706 (Pa., 1938) (implied warranty of fitness does not arise between |manufacturer and third party) (3) Carter v Yardley & Co.., -64 N.Sl (2d) 693 (Mass., 1946) (dicta that perfume manufacturer would not be liable for personal injury to purchaser from retailer) (4) Cempo v Scofield, 95 N.Y.S. (2d) 610 (1990) (Manufacturer of onion topping machine not liable for personal injury to purchaser fyoo retailer) (5) Green y Equitable Pewda Ifg. op., 94 F Supp. 126 (Ark., 1950), affirmed, 95 F. Supp. 127 (Ark., 1951) (explosives manufacturer loot liable for personal injury to employee of purchaser) (6) lecfesler v Hoffman-La Eddie, Ir(c., 99 N.Y.S. (2d) 588 (N.Y., 1950) (drug manufacturer not liable for personal injury to patient of physician) Notes Other illBstjeatiye-oases In atjiwrd with rule, .but involving products other than chemical products ar.e noted in the footnote!. These eases -prineipally- involve food products.26 . (c) Products Liability and the Food Consumer, pp. 93-109 (:ii) 46 Aim. Jill?., Sales, seoSsSLl 299-331 (2) Privity of Contract as a Requisite for Recovery on Warranty, 19 N. C. L. Rev. 551 (1941) (ii) Wots* (1949) 29 B.U.L. HSv. 107 (1949) (3) bW$&g&2M&t - (None) 26. Smith v Williams, 45 S.E. 394 (Ga., 1903); Nelson v Armour Packing Co., 90 S.W. 288 (Ark., 1905); Roberts v iSVa\Sev~BUSCh Brewin9 Ass'n- 98 N-E* 95 (Mass., 1912)5 S. H. Kress 8. Co. v Lindsey, 262 Fed. 331 (C.C.A. 5th, Oflv e\ on9 1 Certainteed Products Corp., 133 S.E. 279 (Ga., 1926)} J. I. Case Threshing Machine Co. v Dulwoxth, m e Y* 1926)* P^inaen v Russos, 215 N.W. 905 (Wis., 1927)5 Turner v Edison Storage Battery Co., 161 ru ` u 1928'5 Minutilla* v Providence Ice Cream Co., 144 Atl. 884 (R. I., 1929); Wood v Advance Rumely rnresher Co., 234 N.W. 517 (N.D., 1931); Collins Baking Co. v Savage, 150 So. 336 (Ala., 1933); Burns v Baldwin- Joherty Co., 170 Atl. 511 (Me., 1934); Colonna y Rosedale Dairy Co., 186 S.E. 94 (Va., 1936); Chanin v Chevrolet iotor Co., 89 F. (2d) 889 (ill., 1937); Rachlira v Libby-Owens-Ford Glass Co., 96 F. (2d)'597 (N.Y., 1938); Square ^ Model Farm Dairies, 55 T.L.R. 384 (Eng., 1939!); Finks v Viking Refrigerators, 147 S.W. (2d) 124 (Mo., 1940); poplar v Hochschild, Kohn & Co., 24 A (2d) 783 (Md., 1942); Massey v Borden Co., 37 N.Y.S. (2d) 571 (1942); ptrother v Villere Coal Co., 15 S. (2d) 383 (Lai., 1943); Pearl v William Filene's Sons Co., 58 N.E. (2d) 825 .Mass., 1945}j Barni v Kutner, 76 A. (2d) 801 (Del., 1950); Studebaker Corp. v Nail, 62 S.E. (2d) 198 (Ga., 1950) decided on other*grounds) / t- 28 3. A_ayiuf.actuier wiic-_undertak.es to .make representations regarding his product upon which a purchaser justi fiably relies as an Inducement to the purchase of the product is under the obligation to make such representations good. Comment* Where the manufacturer induces the purchase of his product by positive representations that it is safe for use or efficacious for its intended purpose, he subjects himself to liability in warranty if the representations are false, inaccurate, or misleading. The representations may be oral, or may be made on the label of the product itself, or by advertising ox other mean^ of labeling. It is not a prerequisite to liability that the manufacturer did not know that the representations w^re false, since he is in the position of a guarantor in a warranty action. An express warranty is defined in thfe uniform sales law as follows* "Any affirmation of fact or any bromise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goodsjrelying thereon. Mo affirmation of the value of the goods, nor any statement purporting, to be a. statement isf the seller's opinion only shall be construed as a war ranty." (Section 12) (a) Csas.h.sliiag_manufa.eturer llible for breach of express warranty* (1) Ingraham - Associated Oil Co., 6 P. (2d) 645 (Wash., 1932) (manufacturer of insecticide liable to purchaser on basis of or^l claims for safety made at the time of sale) (2) Simpson v American Oil Co., 14 S.E. (2d) 638 (M.C., 1941) (earlier opinion in 8- S.E. (2d) 813 (-N.-C*, 1940) (manufacturer of insecticide liable to remote purchaser on basis of safety claims made on the label of the, product) (3) Ebers v General Chemical |Co., 17 M.W. (2d) 176 (Mich., 1945) (manufacturer of insecticide liable to remote user on basis of safety claims made in advertising pamphlet distributed to the public; prin ciple of negligent misrepresentation involved) (4) Free v Slues, 197 P. (2d) 854 (Cal., 1948) (manufacturer of soap product liable to remote user on basis, of, guarantee, of quality made on the label of the product) (5) Lindroth v Walgreen Co., j87 N.E. (2d) 307 (ill., 1949), affirmed 94 N.E. (2d) 847 (ill., 1950) (manufacturerof vaporized liable to remote user partially on basis of safety claims made on the label, of--the prjodaet and'jin pamphlet accompanying the product) (b) CaS&mS.. - . sas-oat U ) FaarrrrdAf v Andrews & Co., 69 Ala. 936 (1881) ((sstatement that "fertilizer is good," held mere expression of-..spin! on) (2) Hubbard Fertilizer Co. of Baltimore City v American Irona Corp., 120 Atl. 522 (Md., 1923) (no evi dence of breach of expresjs warranty of borax content in fertilizer) (3) $ayr v--Pine-Oil Salas Cb,,, 155 F. (2d) 855 (La., 1946) (statement on label of cleansing product that "It-will not injure the skin..." was not a warranty against non-injury to the eye) (4) North American Fertilizer] Co. v Combs, 212 S.W. (2d) 526 (Ky., 1948) (designation of fertilizer as "6-8-6" constituted express warranty that product had specified formulation, but theory of action was not that this warrant^ was: breached) (5) Gibson v California Sprayfffihentlcal Corp,, 188 P. (2d) 316 (Wash., 1948) (no evidence of express nwpeatjty of safety of insecticide) (6) Murphy Laboratories v Emery Industries, 95 F. Supp. 651 (Pa., 1951) (no evidence of warranty of sqajj product) (<=) Ceggy.aiiBgpiaF.rtfiB.8 (D Is (fcl Void, Sales, sec. 142 (1931) (li) SfilUstOn, Contracts, secs. 673 , 712, 970-971, 1075, 1492, 1505 (1938) (2) (1) Will1stbn. What Constitutes an Express Warranty in the Law of Sales, 21 Harv. L. Rev. 555 (1-308) (ii) filliston, Representation and Warranty in Sales, 27 Harv. L. Rev. 1 (1913) (iii) Bdgert, Express Warranties in Sales of Goods, 33 Yale L. J. 14 (1923) (iv)- Sdgiert. & Fink, Business Practices Regarding Warranties in the Sale of Goods, 25 111. L. Rev. 400 19*3) (v) fctws (1932) 46 Harv. L. Rev. 161; (1932 ) 81 U. Pa. L. Rev. 94; (1927) 36 Yale L. J. 1155; (1932) 7 Wash. L. Rev. 351; (1933) 18 Cornell L. Q. 445 (3) toMaMefes (i) Ifit Ii.t.B. 856 - "Warranties-and conditions upon sale of seed, nursery stock, etc." (ii) 2B: A.L.R. 991; 158 A.L.R. 1413 - "Advertisements of seller as affecting rights of parties to sal of -personal property." (iii) 1$ ftiJL.K. 1182; 74 A.L.R. 346; 168 A.L.R. 1062 - "Personal injuries to buyer, due to de fective or dangerouk condition of article, effect of express warranty on liability of seller of. article not inherently dangerous." (iv) 42 A.L.S. 1255; 60 ^.L.R. 371 - "Personal injury to or death of, third person due.to danger ous condition of article sold, effect of express warranty on liability of seller for." d. 4. A manufacturer has under certain conditions an oblioation imposed bv law to make his product of a merchantable quality and reasonably fit for the particular purpose for which it is bought. Comment * The manufacturer may be subject to liability in warranty actions although he has made no express repre sentations concerning the safety or efficaciousness of his product. The law imposes the duty under certain con- 29 ditions to supply a product which Is merchantable and the duty under certain other conditions to supply a product which is suitable for a particular purpose. The conditions under which the law imposes the warranty of merchantability and the warranty of suitability are set forth in the uniform sales law27 as follows: "....there is.no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: e (1) Where.the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's sk'ifLl or judgment (whether he be the grower or manu facturer or not),, there is an implied warranty that the goods shall be reasonably fit for such purpose. : (2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the.grower or manufacturer or not), there is an implied warranty that the goods shall be of a merchantable quality. (3) If the buyer has examined the .goods, there is no implied warranty as re gards defects which such examination ought to have revealed.. (4) In .the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular'purpose.28 (5) An implied warranty or Condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. (6) An. express warranty or Condition does not negate a warranty or condition implied under this act unless inconsistent therewith." (Section 15) (a) Cases holding .manufacturer...liable for breach of implied warranty! (1) Swain v Schieffelin, 12 N.Y.S. 155 (1890) (manufacturer of chemical ingredient incorporated in food product) (2) Patterson v Orangeburg Fertiliser Co., 108 S.E. 401 (S.C., 1921) (manufacturer of fertilizer) (3) Willcox, Ives. & Co. v Brazzell^ 117 S.E. 203 (S.C., 1923) (manufacturer of fertilizer) (4) Sherwin-Williams Co. of Texas v Offenhauser, 42 $.W. (2d) 859 (Tex., 1931) (manufacturer of in secticide) (5) Bianchi v Denholm & McKay Co., 19 N.E. (2d) 697 (Mass., 1939) (manufacturer of face powder; question of allergy involved) (6) Pietrus v J. R. Watkins Co., 38, N.W. (2d) 799 (Minn., 1949) (manufacturer of hair shampoo) (7) Pabellon v Grace Line, Inc., 191 F. (2d) 169 (N.Y., 1951) ( reversing 94 F. Supp. 989 (N.Y., 1950) (cleaning compounds sold under trade names) 0>) i32ii.ed warranty: (1) Philbrick v Kendall, 88 Atl. 540 (Me., 1913) (fertilizer ordered by brand name - no warranty of fitness) (2) Hubbard Fertilizer Co. of Baltimore City v American Trona Corp., 120 Atl. 522 (Md., 1923) (ferti lizer sold under trade nape) (3) F. E Atteaux & Co. v Pancreon Mfg. Corp., 22 F. (2d) 749 (Mass., 1927) (chemical compound sold under trade name) (4) Sawyer v Pine Oil Sales Co., 15b F. (2d) 855 (La., 1946) (no implied warranty that soap product would not splash into eyes and cause injury) (5) Carter v Yardlay & Co., 64 N.E. (2d) 693 (Mass., 1946) (dicta that no implied warranty of cosmetic in absence of privity) (6) North American Fertilizer Co. v Combs, 212 S.W. (2d) 526 (Ky., 1948) (fertilizer put to unintended use) (7) Gibson v California Spray-Chemical Corp., 188 P. (2d) 316 (Wash., 1948) (disclaimer in sale of in secticide precluded implied warranty) (8) Campo v Scofield, 95 N.Y.S. (2d) 610 (1950) (no implied warranty of machinery in absence of privity) (9) Green, v Equitable Powder Mfg. Co*, 94 F. Supp. 126 (Ark., 1950) (no implied warranty of explosives in' absence of privity) (10) Murphy Laboratories v Emery Industries, 95 F. Supp. 651 (Pa., 1951) (no evidence of warranty of soap product) (11) Tuscany v U. S. Standard Products Co., 243 S.W. (2d) 207 (Tex., 1951) (no evidence that drug was unsafe) (c) SSQgraliagfi^flcgS! (1) TektB,and Encyclopedias: (i) 46 Am. Jur., Sales, secs. 332-361 ----- ---- ----------- ---- ------------------------ --- . # f C * * !. Tfle uniform sales law is in effect in the large majority of jurisdictions. Since it is essentially a codifi:ation of the common law, its principles are equally applied in those jurisdictions which have not enacted sales Laws. There are other warranties imposed by law, other than merchantability and fitness for a particular purpose, >ut they are rarely Encountered in chemical-products liability cases. These warranties, as considered in the uniroxm sales law, include warranties of title (Section 13), warranties in sales by description (Section 14), and rarranties in sales bjy sample (Section 16). !8. It should be notjed that the mere fact that the article happens to have a trade name and is so designated in ;he contract does not: automatically bring the contract within the provisions of this subsection. An implied waranty of fitness is npt excluded if the buyer, when he discloses to the seller a particular purpose, relies on the seller's skill and judgment to furnish the appropriate article and the seller then selects an article which has a latent or trade name. See, Buchanan v Dugan, 82 A. (2d) 911 (D.C., 1951) and cases cited therein. on / v. ~~ (, (2) (i) Gose, Implied Warranty of Quality under the Uniform Sales Act, 4 Wash. L. Rev. 15 (1929) (ii) Llewellyn, On Warranty of Quality and Society, 36 Col. L. Rev. 699 (1936) (iii) Morrow, Warranty of Quality: A Comparative Survey, 14 Tulane L. Rev. 327 (1940) (iv) Prosse.r,| Tmhee .Implied Warranty of Merchantable Quality, 27 Minn. L. Rev. 117 (1943) (v) Notes: (1944) .22 Tex. L. Rev. 243 (implied warranties in sale of animal feed); (1948) 23 Tulane L. Rev. 96 (nature and proof of implied'warranties) (I) 62 A.L.R. 1510 - "Construction and effect of express or implied warranty on sale of article intended for use as an explosive." t(ii). 131 A.L.R. 123 - "Cosmetics, implied warranty by retailer of." (iii) 168 A.L.R. 389 "Implied warranty of quality, fitness, or condition as affected by buyer's inspection of, or opportunity to. inspect, goods. B. Liability of Vendors other than Manufacturers for Breach of Warranty 1. A vendor is subject to liability iin warranty actions for breach of an express or implied warranty of a product which he.sells irrespective of whether he has exercised reasonable care in the sale of the product. Comment: The vendor who is not a manufacturer is subject to liability in warranty actions in accordance with the principles applicable to the manufacturer. The comment in Section A, pp. 27-28 is equally applicable here. The in surer's liability of the vendor is strikingly illustrated in cases where the vendor of sealed-packaged products is ' held liable for breach of warranty, although he had no means of ascertaining the dangerous nature of the contents within the package. 2. A vendor is generally subject to liability in warranty actions for harm resulting from a breach of warranty 19...1M person; <?r property of any person, who Is in privity with him. Comments The comment in Section A, ,pl 28 is equally applicable here. The vendor is under the general rule liable in warranty actions only to those persons who directly deal with him in the sale of a product. Because of the similar' requirement of privity in warranty actions against the manufacturer, remote users or vendees-frequently bring an original suit against their immediate vendors, such as retailers. The latter may then, in appropriate cases, join the manufacturer as a party-defendant or bring a separate recovery-over action against the manufacturer or wholesaler. (a) _holc!ing._^ndgr_ jiab 1 e for personal injuries or property damage to remote parties: (l) Davis v Radford, 63 S.E. !(2d) 822 (N.C., 1951) (wholesale druggist liable for personal injury to purchaser from retailer; theory of Simpson v American Oil Co,, supra. followed) (b) Casas holding vendor not llab to remote parties on the ground of.lack oj_privity: (1) Binion v Sasaki, 41 P. ( ) 585.(Cal., 1935) (seller of food contaminated with arsenic not liable for personal injury' to mi er of purchaser's family) (2) Dumbrow v Ettinger, 44 F. Supp. 763 (N.Y., 1942) (retail druggist not liable for personal injury to member of purchaser's family) See also, cases cited in Sect ion A, footnote 26, p. 28. M General References: Refer to material cited in Section A, p. 28. 3. A vendor who undertakes to make representations regarding a product sold upon which a purchaser justifiably relies as an inducement to the purchase of the product is under the obligation to make such representations good. Comment: The comment noted in Section: A, p. 29 is equally applicable here. (a) CasfiS-hPlding-Mandar liable for breach of express warranty: (1) Hawkins v Pemberton, 51 Ni Y. 198 (1872) (oral representation that product sold was blue vitriol, held an express warranty)| (2) Leonard v Carleton & Hovey Co., 119 N.E. 674 (Mass., 1918) (terms "cold pressed provincial medicine oil" and "pure medicine c^sd liver oil" used in contract for sale of such oil, constituted express warranty) (3) Swift & Co. v Meekins, 102 S.E. 138 (N.C., 1920) (oral statement that product sold was "as good ..fertilizer as there is on the market", held an express warranty as a matter of law) (4) City of Chicago v Proctor & Gamble Co., 9 F. (2d) 286 (Ohio, 1925) (provision in contract for sale of soap "in no case shall the maximum amount of hydrocarbons exceed 3 per centum," held an express warranty) (5) Stevenson v B. B. Kirkland Seed Co., 180 S.E. 197 (S.C., 1935) (oral representation that seed sold was of a certain name and variety, held an express warranty) (6) Miller v Economy Hog & Cattie Powder Co., 293 N.W. 4 (Iowa, 1940) (oral representation that stock powder was "all right" for sheep, held an express warranty) (7) Graham v Jordan Marsh Co., 67 N.E. (2d) 404 (Mass., 1946) (oral representation that cosmetic would be beneficial to purchaser 's skin, held an express warranty) (8) Free v Sluss, 197 P. (2d) 354 (Cal., 1948) (oral statement that soap product was the same as product previously purchased) 31 (h) Cases holding vendor not liable for alleged breach of express warranty; (1) Mason v Chappell, 15 Grat. 572 (Va,, 1860) (statement that "fertilizer is good," held mere ex pression of opinion) (2) Dent v Murphy, 13 Ky. Law Rep. 46 (1891) (no evidence of warranty of fertilizer, abstract opinion) (3) DeZeeuw v Fox Chemical Co, 179 N.W. 605 (Iowa, 1920) (statement that hog remedy would improve growth and condition of hogs, held mere expression of opinion) (4) Blunter v Hauer, 230 Pac. 964 (Cal., 1924) (statement that fertilizer would increase the productivity of purchaser's vineyard and enrich the soil, held mere expression of opinion) (5.) Gray v Gurney Seed & Nursery Ci,, 231 N.W. 940 (S;D., 1930) (no evidence of breach of warranty of seeds) (6) Smith v Denholm & McKay Co., 192 N.E. 631 (Mass, 1934) (express warranty at time of sale of cos metic, product does not extend, to subsequent sales of the same product) (7) Buckley V Shell Chemical Co., $9 P. (2d) 453 (Cal, 1939) (manufacturer's written'disclaimer pre vailed over dealer-agent's oral) representations concerning fertilizer) (8). Bel v Adler, M S*E. (2d) .495 (Ga., 1940) (dealer's statement held a mere recommendation) (9) Beckett v.iF W, W90.lworth.-Go.', !34 N.E. (2d) 427 (ill., 1941) (no reliance by purchaser on dealer's .statement that cosmetic was^sa^o or on card enclosed in package by manufacturer, where purchaser had. been using" the'.product over 10 years) (10) Henderson v National Drug Company, 23 A. (2d) 743 (Pa., 1942) (no evidence of breach of warranty ^ of'.drugs) Refer to material cited in Section A, p. 29 d. Warranties Imposed bv Law 4. A vendor has under certain conditions ah obligation imposed bv law to sell a product which is of a merchant able quality and reasonably fit for the particular purpose for which it is bouoht. Comment: The comment noted in Section A, pp. 29-30 is equally applicable here. (a) Cas.es_holjdl.n9:.. vendor liable for breach of implied warranty of quality or .fitness; (1) Wilcox, Gibbs a Co. v Hall, 53 a. 635 (1875) (fertilizer) (2) Jones v George, 61 Tex. 345 (18434) (insecticide) (3) Flynn v Bedell, 136 N.E. 252 (Miss., 3922) (wearing apparel) (4) Swift & Co. v Etheridge, 129 S. 453 1N.C., 1925) (fertilizer) (5) Blanchard v-Kronick, 169 N.E. (Mass., 1929) (feed containing Paris Green) (6) Larson v Farmers* Warehouse Co.. 297 Pac. 753 (Wash., 1931) (seeds) (7) Haller v Rudmann, 292 N.Y.S. 58p (1937) (defective bottle containing rubbing alcohol) (8) Manning Mfg. Co. v Hartol Products Corp. 99 P. (2d) 813 (Vt.,-1938) (kerosene) (9) Bianchi v Denholm & McKay Co., |9; N.E. (2d) 697 (Mass., 1939) (cosmetics) (10) Zirpola y Adam Hat Stores, 4 A. (2d) 73 (N.J., 1939) (wearing apparel) (11) Smith v Gimbel Bros, Inc., and jsbclete Coiffure, Inc, 259 N.Y. App. Div. 1037 (1940.) (permanent wave preparations memo opinion) i (12) Griffin v Taylor, 16 S.E. (2d) 186 (Ga, 1941) (fertilizer) (13) Dumbrow v Ettinger, 44 F. Supp, |763 (N.Y., 1942) (drugs) (14) Henderson v Berce, 50 A. .(2d) 45j (Me, 1946) (seeds) (15) Graham v Jordan Marsh Co., 67 N.|E. (2d) 404 (Mass., 1946) (cosmetics) (16) Reynolds v Sun Ray Drug Cb., 52 (2d) 666 (N.J., 1947) (cosmetics) (17) Davis v Radford, 63 S.E. (2d) (N.C., 1951) (drugs) (18) Ringstad v I. Magnin & Co., 239 (2d) 848 (Wash., 1952) (wearing apparel) 0) not.!liable for al leoed breach of implied warranty of quality or fitness; (1) Dent v Murphy, 13 Ky. Law Rep. (1891) (fertilizers abstract opinion) (2) Bowker Fertilizer Co. v wailingfbrd, 111 Atl. 329 (Me., 1920) (fertilizer purchased under stated chemical formula) (3) Smith v Denholm & McKay Co., 192; N.W. 631 (Mass., 1934) (cosmetic sold under trade name) (4) Biniort v SaSaki, 41 P. (2d) 585 (Cal., 1935) (no implied warranty of contaminated food in absence of privity) (5) Smith v S S. Kresge Co., 79 F. (2d) 361 (Mo., 1935) (complaint based on negligence with no alle gation of: warranty) (6) Bel v Adler, 11 S.E. (2d) 495 (Gi., 1940) (cosmetic manufactured by reputable manufacturer and re sold by dealer in original package) (7) Clcarelli v Lipshetz,;8 Conn. Supp. 529 (1940) (no evidence of breach of warranty in sale of lipstick) (8) Poplar v Hochschild,. Kohn & Co., 24 A. (2d) 783 (Md., 1942) (no implied warranty of container of perfume) (9) Landers v Safeway Stores, 139 P. (2d) 788 (Ore., 1943) (breach of warranty of bleaching solution not the; proximate cause of injury complained of) (10) McGee v Bennett, 33 S.E. (2d) 577 (Ga., 1945) (careless conduct by purchaser of fungicide) (11) Warier v Pearlman's R;R. Salvage Co., 52 S.E. (2d) 3 (N.C., 1949) (no evidence of breach of warranty of glue) (12) Yofsaack v Farmers' Cooperative Ass'n. of N.J., 78 A. (2d) 421 (N.J., 1951) (breach of warranty of insecticide:was not the proximate cause of injury complained of) (13) Flexmir, InC. v Lindeman a Co., 32 A. (2d) 450 (N.J., 1951) (no causal connection between alleged .breach .ofwarranty' of Fitness of oil and explosion of heating unit) Refer tC adterial cited in Section A, pp. 30-31. 32 C. Seselal-Problems In Warranty Cases Involving Vendors in dona-t-ai Djamaoss tjojes The amount of damages awarded in warranty action depends upon the facts and circumstances in each case. Generally, there is no difference between the amount of damage which may properly be awarded in a tort action or in a warranty action. As in tort cases, an award is not set aside as excessive unless it fails to bear some reason able proportion to the injury or loss sustained. The.measure of damages for. breach of warranty is stated to be the loss directly and naturally resulting from the breach. In the absence of special circumstances, this would be the difference between the actual value of the product sold and its value if it had beeh as warranted. However, in cases concerning chemical products there is usually more in issue than.the efficacy-factor and therefor special damages, personal or property, are generally involved, ' Where personal, injur*/ is traceable to a breach of warranty, the allowable damages would reflect the cost of the injuries to the plaintiff including, physical pain and expenses for treatment and care. Where property damage is involved, the measure of damages is generally the difference in the market .value of the property immediately be fore and after injury plus such incidental expenses as are incurred by reason of the product's non-confoimance to the warranty. a) C1a-1a-}-s-J-Lo--sn-eJ--sj-a--va---MG---ei-ifo-l-r^-g-^-e-^-,--6--1---T--e--x-.fll.3j.^!45S!(W18fle8%4)-to(,inJisPeCcEtmictyid. te) 2) Swain v Sehieffeiin, 31 Nij,E.. 1023 (N.Y., 1092) (chemical ingredient in food product) (3) Sherwin-Williams Co. of I^xas v Offenhaueer, 42 S.W. (2d) 859 (Tax., 1931) (insecticide) (4):Phillips V Sharp, 185 N.Ei 562- (Ohio, 1932) .(seeds) (5), Ingraham v Associated OiliCo., 6 P. (2d) 645 (Wash., 1932) (insecticide) S5i Griffin v Taylor, 16: S.E, (2d) 186 (Ga., 1941) (fertilizer) .'Henderson v Seres, 50 A (2d) 45 (Me., 1946) (seeds) (b) Simpsbn v American' Oil Co 14 S.E. (:2d) 638 (N.C. , 1941) ($7,000 for inflammation of skin and boils of. sfrious and recteent' .mature) (2) Pietrus v J. R. Watkins Cc)., 38 N.W. (2d) 799 (Minn., 1949) ($20,000 for loss of hair) (=) Saan ..^a&jIaBgBa-avigrsi.si,, .yqrt, SLasMs__m_stte)j_giri_E__B_J_M__2_.s Smith V Denholm & McKay C4, 192 N.E. 631.(Mass., 1934) ($8,500 for peripheral neuritis) (d) casas, .ms (1) 'Sherwia-Wi1llama Co. of Te Ss v Offenhauser, 42 S.W. (2d) 859 (Tex. 1931) ($4,983 allowed for inefficacious insecticides] $3,112 set aside as speculative) (2) Yoxnwefe-v Farmers' Cooperative Ass'n. of M.J., 78 A. (2d) 421 (N.J., 1951) ($2,500 for injury to 'POBltef) (e) SgoamJwJSateoiisa.! CD Isz^MMmzlsssiMs.s (i) Void, Sales, sec. 157 (1931) :ii) Bhifonn Sales Act, sec. 69. . (iii) flllliston, Contracts, secs. 1391-1396 (1938) (2) ISS&Sf^cS-ESSd.sMSSJ^.* - (None) (3) hi' (iT A.L.R. 856, 885 4 "Warranties and conditions upon sale of seed, nursery stock, etc. Notes The defense of contributory negligence in product liability cases is usually found in actions grounded in negligence and seldom appears in warranty actions. However, the principles of contributory fault of the plain tiff, discussed p. 23 supra, apply to either theory of action. (a) Cas-as_where contributory negligence was founds (1) Fredehdall v Abraham & Straus, Inc., 18 N.E. (2d) 11 (N.Y., 1938) (plaintiff failed to use reasonable care in use of cleaning fluid) . (2) McGee v Bennett, 33 S.E. (2d) 577 (Ga., 1945) (plaintiff carelessly purchased and used fungicide) (h) S^es_a|iaj^L^lLtrfMti33^ t (No chemical-products liability cases) (e) fisnspal Refer to material cited in Section C, p. 24. Note; In recent years the problem of the allergic consumer has become Increasingly important In product liability cases involving chemicals, principally chemicals in cosmetics. The problem arises where the manufacturer or seller defends a negligence or breach of warranty suit on the ground that the plaintiff's injury was caused by his own hypersensitive condition rather than, by an unsafe ingredient in the product itself or that the particular hyper sensitivity of the plaintiff was such a rajrely encountered condition or occurred in such a small proportion of the consumer population that the resulting! injury was unforeseeable. The courts have not squarely defined the legal principles which should apply in such situations or set forth the public policy which should be invoked. It is reasonably clear, however, that the defendant cannot rely solely upon the fact that the product was fit for use by the average user and that the plaintiff is not required to prove that a majority of users would be injuriously affected. Recovery is generally denied when the allergy Involved is relatively unknown or when it exists among an infinitesimal proportion of the population; Conversely, recovery is generally allowed when the product might affect a normal person or when it affects a discernible proportion of the population. 33 The question as to whether the manufacturer should label his product with a statement of ingredients which have allergenic properties or with a caution as to the hypersensitive conditions which are likely to be aggravated be cause of the presence of the ingredients has not as yet been extensively developed by the courts. (a) C.as^, ^m jsppverv we denied to an allergic plaintiffs (1) Bradlt v Hollaway, 136 N.E. 254 (Mass., 1922) (dyed neck piece; warranty action) (2) Walstrcm Optical Co. v Miller 59 S.W. (2d) 895 (Tex., 1933) (dye in eye-glass frames; negligence action) (3) Cream v Inecto, 99 N.Y.L.J. (1938) (hair dye; negligence action) .(4) Zager v F. W. Woolworth Co., P. (2d) 389 (Cal., 1939) (cosmetic; warranty action) (5) Boss v Porteous, Mitchell & un Co., 3 A. (2d) 650 (Me., 1939) (dress shield containing rhodamine dye; warranty action) (6) Cicarelli v Llpshetz, 8 Conn. Supp. 526 (1940) (lipstick; warranty action) (7) Cleary V John M. Maxis Co., 19 N.Y.S. (2d) 38 (1940) (lead from metallic nipple shield; negligence action) (8) Bartett v S. S. Kresge Co., 19 A. (2d) 502 (Pa., 1941) (dress;warranty action) (9) landers v Safeway Stores, 139 P, (2d) 788 (Ore., 1943) (bleaching solution; warranty action) (10) Payne v R. H. White Co., 49 M.E. (2d) 425 (Mass., 1943) (dress: warranty action) (11) tonga V Touraine Stores, 66 N.fe. (2d) 792 (Mass., 1946) (gloves; warranty action) (12) Sihger v Olsenj, 87 N.Y.S. (2d) p86 (1949) (phenol in calcmine lotion; negligence action) (13) Briggs v national Industries, Inc., 207 P. (2d) 110 (Cal., 1949) (thioglycolate in cold wave solu tion?' -negligence, action) (14) Bennett v Pilot Products Co., 235 P. (2d) 525 (Utah, 1951) (ammonium thioglycolate and potassium topaiate in permanent' wave solution; negligence action) (b) aoes :i!!Mr^^.omty_Ha_s_.M.lPwed to| an. allergic Plaintiff: (1) Qexkin v Brown & Sehler Co., 143 N.W. -48 (Mich., 1913) (dye in fur; negligence action) (2) plynn v: Bedell Co., 136'N.E. 2!)2'(Mass.,. 1922) (dye in fur; warranty action) (3) Smith v Denholm & McKay Co., 192 N.E. 631 (Mass., 1934) (thallium acetate in hair dye; warranty (Iction;. decision for defendant on other grounds) (4) Arnold v May Department Stores Co., 85 S.W. (2d) 748 (Mo., 1935) (hair dye containing trihydroxy Uepzaln; negligence action) (5) Zlrpela v A'dam Hat Stores, Inc j 4 A. (2d) 73 (N. J., 1939) (hat containing aniline dye; warranty action) (6) BiancM v Denholm & McKay Co., 19 N.E. (2d) 697 (Mass., 1939) (aniline dye in cosmetic; warranty action) (7) Taylor v Newcomb Baking Co., 5<j N.E. (2d) 293 (Mass., 1945) (trisodium phosphate in soap; negli gence action) (8) Ghasfrwr v Yaxdley & Co., 64 N.E. (2d) 693 (Mass., 1946) (perfume; negligence action) (9) Graham,; v Jordan Marsh Co., 67 N.E. (2d) 404 (Mass., 1946) (cold cream; warranty action) (10) Rpynoljis v Sun Ray Drug Co., 52 A. (2d) 666 (N.J., 1947) (lipstick; warranty action) (c.) : (i) Dickerson, Products Liability and the Food Consumer, pp. 211-230 (2) Lasfel,..yeriadlieals s pjiJra'sch, Allergies and tjhe Law, 10 Brook. L. Rev. 363 (1941) (il)< Cavltch, Liability of Mahufacturer or Vendor to an Allergic Consumer, 49 Mich. L. Rev. 253 (1990). (iii) Horowitz, Allergy of the! Plaintiff as a Defense in Actions Based upon Breach of Implied Warranty of Quality, 24 So. Calif. L. Rev. 221 (1951) (iv) Noted! 29 B.U.L.A. 397 (1949); 19 ibid. 501 (1939); 26 Minn. L. Rev. 668 (1942); 24 MW L. Rev. 792 (1939) (3) 6aBBta$iigtI&i- ; (i) 27 A.L.R. 1504 - '"Implied warranty upon retail sale of garment for personal wear." (ii) 121 A.L.R. 464 - "Seller?s or manufacturer's liability for injuries as affected by peculiar or unusual susceptibility of buyer or user to injury from dye or other ingredient in article sold." d. Disclaimer of Liability for Breach of Warranty r.P Haigs The general rule is that a manufacturer or other vendor may effectively disclaim by contract or by label ing any or all warranties which would otherwise attach in the sale of his product. .Provisions for nonwarranty may be operative when used on labels, on letterheads, invoices, bills of sales, catalogues, or other extrinsic media which bring home the terms of the disclaimer the purchaser. It is not essential that the plaintiff actually read and understand the disclaimer, if in fact it was made and could have been read and understood with reasonable effort. 'Non-warranty provisions or disclaimers are, as a practical matter, looked upon with disfavor in the courts'arid are subject to strict construction. Some juri sdictions have imposed limitations by statute on the power of a manufacturer or vendor to disclaim. Where the question has been left to the courts, judicial legislation is encountered. Frequently, the courts hold a discliaimer inoperative as to warranties imposed by law on the ground that contracting parties cannot immunize themse Ives from the public policy of the law. Thus, a clause in a contract or on a label, excluding all warranties, express or implied, may be limited by the courts in its effect to exclude express or implled-in-fact %warranties which would otherwise attach. The warranties of merchantability and fitness imposed by law, remain operative. V 34 The seed industry has been particularly active in attempts to limit liability by contractual disclaimers and the standard non-warranty clause used by than has received frequent attention in the courts. For this reason, selected cases involving seeds are collected in a footnote to the following annotation. (a) Ca,ag$, holding, a disclaimer affective; (l) Manglesdorf Seed Co. v Busby, 247 Pac. 410 (Okla., 1926)" (disclaimer on invoice accompanying sale of seed - "we give no warranty express or implied.'*) (2) E. I. DuPont de Nemours and Co. v Baridon, 73 F. (2d) 26 (Iowa, 1934) (dicta that disclaimer effective against breach of warranty but not against negligence) (3) Buckley v Shell Chemical |co., 89 P. (2d) 453 (Cal., 1939) (disclaimer on order blank accompanying sale of fertiliser) ; (4) Charles Lorami & Son v Globe Laboratories, 95 P. (2d) 173 (Cal., 1939) (disclaimer on bottle of Anti-Hog.Cholera Serum; dicta that ineffective as to negligence) (5) Gibson 'V California Spra^-Cheaical Corp., lS8 P. (2d) 316 (Wash., 1948) (disclaimer on invoice accompanying.sale of insecticide) (b) Casas, (X) Patterson v Orangeburg Fertilizer Co., 108 S.B. 401 (S.C., 1921) (ineffective as to implied warranty of fertilizer) : (2) Swift & Co* v Etheridge, 129 S.E. 453 (H.C., 1925) (ineffective as to implied warranty of fertilizer) (3) Ingraham v Associated Oil Co., 6 P. (2d) 645 (Wash., 1932) (ineffective as to implied warranty of insecticide in view of express oral warranty) (4) Stevehson v 8. B. Kirkland Seed Co., 180 S.E. 197 (S.C., 1935)30 (5) Bb.axS/ v 'Geitesal Chemical Co., 17 N.W. (2d) 176 (Mich., 1945) (disclaimer in advertising pamphlet accompanying; sale of insecticide ineffective in view of express warranties in same pamphlet) (c) GsnsssJUMsxssma.* Eats . (1) 55 C. J., sec. 698 (11) Void, gales, sec. 150 (1931) (ill) 46 Ala* Jur., Sales, secs. 318, 354 (2) Bogt: & Fink, Business Practices Regarding Warranties in the Sale of Goods, 25 111. L. Rev. 400 (1930) (Si) Greeahalgh, Disclaimer of warranties, Wis. L. Rev. 459 (1939) (ill) Mess (1947) 32 idwa L. Rev. 784; (1948) 24 N.D. Bar Briefs 151; (1948) 1 Vand. L. Rev. 467 (3) 4aflgfcaia&3. (1) 16 A.L.R. 880; 32 A.L.R. 1244; 62 A.L.R. 454; 117 A.L.R. 476; 168 A.L.R. 589 - "Seeds, nursery stock, etc., effect of disclaimer of warranty clause on sale thereof." (Li) 76 A.L.R. 1017 - "Provision in sale contract to the effect that only conditions incorporated therein shall be blading." (ill) 117 A.L.R. 1350 - "Validity of provision of contract of sale of personal property negating implied'warranties.h (iv) 160 A.L.R. 357 - "Necessity of buyer's actual knowledge of disclaimer of warranty of personal property." ; e. Notice of Breach of Warranty Note: The Uniform Sales Act provides (hat where a buyer fails to give notice to the seller of the breach of any warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller is not liable. The purpose of this notice Is to advise the seller that he must meet a claim for damages in order that he might ad vantageously investigate the merits of the claim. The required notice is informal. The courts have generally held that the question of the reasonableness olf the notice in point of time is one of fact for the jury. In many cases a six months' delay in sending the notice ihas been held fatal, and in seme cases a delay of four months defeated the action. (a) IlLustJatiye-Cases involving noflce of breach: (1) Whitfield v Jessup, CCH 22,f117 (Cal., 1947) (nonsuit granted when notice was delayed 11 months after first purchase and 5^ months after plaintiff discovered cause of illness; citing numerous cases) (2) Murphy Laboratories v Emery Industries, 95 F. Supp. 651 (Pa., 1951) (six months unreasonable) (3) Ringstad v I. Magnin & Co., 239 P. (2d) 848 (Wash., 1952) (four months delay - question for jury) 29. Seed cases holding that where a purchaser accepts goods with notice of disclaimer of warranty, there can be no recovery against the vendor upon a claimed breach of warranty, include: Leonard Seed Co. v Crary Canning Co., 132 N.W. 902 (Wis., 1911); Blizzard Bros, y Growers' Canning Co., 132 N.W. 66 (lowa, 1911); Ross v Northrup, King 8. Co., 144 N.W. 1124; (Ms., 1914); Miller i Germain Seed 8. Plant Co., 222 Pac. 817 (Cal., 1924); Manglesdorf Seed Co. v Williams, 247 Pac. 413 (Okla., 1926>J Larson' v Inland Steel Co., 255 Pac. 919 (Wash., 1927); Davis Co. v Bertrand Seed Co., 271 Pac. 123 (Cal., 1928); Lumbrazo v Woodruff, 175 N.E. 525 (N.Y., 1931); Hoover v Utah Nursery Co., 7 P. (2d) 270 ((Jtah, 1932); Puratlch v Pacific Marine Supply Co., 51 P. (2d) 1080 (Wash., 1935); Reynolds v Binding-Stevens Seed Co., 67 P, (2d) 440 (Okla., 1937); Kennedy v Cornhusker Hybrid Co., 19 N.W. (2d) 51 (Neb., 1945); Pyle v Eastern Seed Co., 198 S.W. (2d) 562 (Tex., 1946); Dutch Mill Gardens v J. J. Grullemans & Sons, 238 S.W. (2d) 232 (Tex.,, 1951). Seed cases holding disclaimer inoperative under particular circumstances include: Landreth v Wyckoff, 73 N.Y.S. 388 (1901); Phillips v Sharp, 185 N.E. 562 (Ohio, 1932); Rocky Mountain Seed Co. v Knorr, 20 P. (2d) 304 (Colo., 1933). 30. Seed cases holding that the fact that the purchaser does not read the statement of disclaimer is immaterial include: Ross v Northrup, King & Co., 144 N.W. 1124 (wis., 1914); Pimpinello v Swift & Co., 170 N.E. 530 (N.Y., 1930); Kennedy v Cornhusker Hybrid Co., 19 |siW. (2d) 51 (Neb., 1945). 35  Miscellaneous Points of Procedure i- itewyery-pver (1) E. 0. Painter Fertilizer Co. v Kil-Tone Co., 143 Atl. 332 (N. J., 1928) (in recovery-over action, plaintiff's right of action started at time sale was made to him by defendant and therefore statute of limitations ran from that period and not from time that plaintiff lost a judgment to a thirdparty purchaser) (2) Brown v Godefry Mfg. Co., CCH 22, 252 (N.Y., 1951) (default of retailer in action for breach of warranty of hair dye,not binding on. jobber) (3) Davis v Radford, 63 S.E. (2d) 822 (NX., 1951) (retailer sued for breach of warranty of drug has .the right to. implead the wholesale; dealer from whom he purchases) (1) E. 0. Painter Fertilizer Co. v Kil+Tone Co., 143 Atl. 332 (H.J., 1928) (supra) (2) Verdi: v The National Mineral Go., CpCH 22, 126 (ill., 194?) (warranty action for personal injuries arising from--use of permanent wave;preparations manufactured by defendant held barred, since statute.of limitations ran. from tiiie of injury) 3. sasoag|siLiyi;S4LSiiiii$ga , (1) Grace, v S. S. Jfrfesge Co., 12 M.E. (2d) 557 (N.Y., 1938) (wrongful death statute covered warranty action) (2) Whifceley v lebb's City, Inc., CCH 22, 268 (Fla., 1951) (wrongful death statute covered tort actions but not warranty actions) SUPPLEMENTARY ANNOTATIONS TO PART.1 (Covering the years 1952 and 1953) Section.!. (No supplementary material) Section 2-A (Manufacturers Liability for Negligence) Page 8. Rule 1(a), after subpara. (4) add: (5) Pope v Edward M. Rude Carrier Corp., 75 S.E. (2d) 584 (W. Va., 1953) (explosive manufacturer) (6) Stull's Chemicals v Davis, 263 S.W. (2d) 806 (Tex., 1953) (herbicide manufacturer) Page 8. Rule 1(b), after subpara. (3) add: (4) See discussion in Gainey v: Folkman, 114 F. Supp. 231 (Ariz., 1953) (landowner's liability) Page 8. Rule 1(c)(2) after subpara, (xiii) adds (xiv) Crop Dustings Legal Problems in a New Industry,'6 Stanford L. Rev. 69 (1953). (xv) Griffith, Fault Triumphant, 28 N.Y.U.L.Rev. 1069 (1953) Pace 10. Rule 2(c), after subpara.- (50) add: (51) Saporito v Purex Corp., 2^3 P. (2d) 910 (Cal., 1952) (manufacturer of cleaning fluid liable for personal;injury to purchaser from retailer) (52) Cohan v Associated Fur Fa^ms, 53 N.W. (2d) 788 (Wise., 1952) (feed-ingredient supplier liable to purchaser from processor-dealer for loss of mink) (53) Higbee v Giant Food Shopping Center, 106 F. Supp. 586 (Va., 1952) (manufacturer of permanent wave preparation liable for personal injury to purchaser from retailer) (54) Willey v Pyrogas Co., 251 S.W. (2d) 635 (Mo., 1952) (manufacturers of safety valve and heater liable for personal injury to purchaser from retailer) (55) Saporito v Purex Corp., 255 P. (2d) 7 (Cal., 1953) (manufacturer of bleaching solution liable for personal injury to purchaser from retailer) (56) Burr v Sherwin-Williams Cg., 258 P. (2d) 58 (Cal., 1953) (pesticide manufacturer liable for property damage to non-purchaser) (57) Pruett v Burr, 257 P. (2d) 690 (Cal., 1953) (pesticide manufacturer liable 'for property damage to non-purchaser, reversed on other grounds) (58) American Cyanamld Co. v Fifelds, CCH 22,327 (W. Va., 1953) (manufacturer of poultry medicine incorporated in feed liable for injury to poultry to purchaser from dealer) (59) Marrero v Gluck, 122 N.Y.Si (2d) 197 (1953) (hair dye manufacturer liable to beauty parlor operator for personal injury of patron) Page 11. Rule 2(e)(2), after subpara, (ix) add: (x) 21 U. of Cinn. L. Rev. 460 (1952) - "Theory of Recovery by the Ultimate Con sumer from the Retailer or Manufacturer in Contract or Tort" (xi) Noel, Product Liability of a Manufacturer in Tennessee, 22 Term. L. Rev. 985 (1953) Page 12. Rule 3(a), after subpara. (16) adds (17) McClanahan v California Spiay-Chemical Corp., 75 S.E. (2d) 712 (Va., 1953) (fungicide inadequately labeled with warnings under federal and state economic poisons laws) (18) Hoskins v Jackson Grain Co.;, 63 S. (2d) 514 (Fla., 1953) (seed labeled with false or misleading statements contrary to state seed law) Page 12. Rule 3(b), after subpara, (l) add: (2) Boncek v Pennsylvania R. Co., 105 F. Supp. 700 (N.J., 1952) (dicta-violation of penal statute is not negligence per se under New Jersey law) Page 12. Rule 3(c), after subpara. (3) add: (4) Cohan v Associated Fur Farms, 53 N.W. (2d) 788 (Wise., 1952) (statute prohibiting sale of adulterated mixed feed not applicable to unmixed feed ingredient) 36-1 (1953 Cum. Supp.) Page 12. Rule 3(e)(2), after subpara, (vi) add: (vii) A Rationale of Negligence Per Se, 26 Ind. L. J. 419 (1951) (viii) Woods, Effect of the Food, Drug, and Cosmetic Act on Private Litigation, 8 Food, Drug, Cosmetic Law Journal 511 (1953) Pace 13. Rule 4(a), after subpara. (22) add: (23) Kieffer v Blue Seal Chemical Co., 196 F. (2d) 614 (N. J., 1952) (failure to label cleaning mixture with notice of dangerous composition) (24) HcClanahan v California Spray-Chemical Corp., 75 S.E. (2d) 712 (Va., 1953) (label on fungicide failed to warn against use contrary to directions) (25) See, Hardy v Procter & Ganjble, GCH 22,340 (C.A. 5th, 1954) (sufficiency of warning on detergent with Ire spec t to effects on the eye held a jury question) (26) Tomao v A. P. De Sanno & Sn* 209 F. (2d) 544 (C.A. 3rd, 1954) (failure to warn as to maximum safe operating speed of grinding wheel) Page 13, Rule 4(b), after subparb. (5) add: (6) Hopkins v E. 1. Du Pont De| Nemours & Co., 199 F. (2d) 930 (Pa., 1952) (failure to warn of the dahger of premature explosion of dynamite under certain conditions) Page 13. Rule 4(c), after subpara. (8) add: (9) Mauro v Great A & P Tea Coi,, CCH 22,276 (N.Y., 1952) (label on food extract "90% alcohol" held adequate warning of flammability) (10) Webb v Sandoz Chemical Works, 69 S.E. (2d) 689 (Ga., 1952) (label on drug showed that it was to be used under physician's supervision) (11) Stull's Chemicals v Davis, 263 S.W. (2d) 806 (Tex., 1953) (label on herbicide warned against harmful drifting potential) Page 15. Rule 6(a), after subpara. (7) add: (8) Willey v Pyrogas Co., 251 S.W. (2d) 635 (Mo., 1952) (failure to test safety valve and heater) (9) Seaton Ranch Co. v Montana Vegetable Oil & Feed Co., 252 F. (2d) 1040 (Mont., 1952) (10) Saporito v Purex Corp., 255 P. (2d) 7 (Cal., 1953) (failure to pressure test bottled bleaching solution) (11) International Harvester Co. v Sharoff, 202 F. (2d) 52 (Colo., 1953) Pace 16, Rule 7(a), after subpara^ (10) add: (11) Higbee v Giant Food Shopping Center, 106 F. Supp. 586 (Va., 1952) (excessive alkali in permanent wave preparation) (12) See, Hardy v Procter & Gamble, CCH 22, 340 (C.A. 5th, 1954) (detergent) (13) Shafer v Barbier, 259 S.W. (2d) 461 (Ky., 1953) (alleged poisonous ingredient in eyebrow dye) (14) Burns v Ralston Purina Co., 75 S.E. (2d) 563 (Ga., 1953) (alleged poisonous ingredient in poultry feed) Pa.ge_.l6, Rule 8(a), after subpara. (7) add: (8) Burr v Sherwin-Williams Co., 258 P. (2d) 58 (Cal., 1953) (contaminated pesticide) Pace 17, Rule 9(a), after subpara. (3) add: (4) Saporito v Purex Corp., 255 p. (2d) 7 (Cal., 1953) (explosion of bottled bleaching solution) .Section 2-fl (Vendors Liability for Negligence) EaSS-lg, Rule 1(a), after subpara. (5) add: (6) Bowman Biscuit Co. v Hines, 251 S.W. (2d) 153 (Tex., 1952), reversing CCH 22,280 (Tex., 1952) (food wholesaler not strictly liable for personal injury to pur chaser from retailer) (7) Cone v Vlrginla-Carolina Chemical Corp., 174 So. 554 (Miss., 1937) (fertilizer dealer) 36-2 (1953 Cum. Supp.) Page 19. Rule 3(b), after subpara, (l) add: (2) Cone v Virgin!a-Carolina Chemical Corp., 174 So. 554 (Miss., 1937) (retail fertilizer dealer) Page 19. Rule 4(b), after subpara. (3) adds (4) Strauel v Peterson, 52 N.Vil. (2d) 307 (Neb., 1952) (no right of action accrued by violation of the Bang's Disease Act) Page 20. Rule 5(b), after subpara. (10) adds (11) Cone v Virginia-Carollna Chemical Corp., 174 So. 554 (Miss., 1937) (dealer did not blow of dangerous(character of fertilizer) Page 20. Rule 5(c), after subpara. (3) adds (4) Blissenbach v Yanko, 107 N.E. (2d) 409 (Ohio, 1951) (construction of vaporizer apparent to purchaser) : Page 21. Rule 7(a), after subpaita. (21) adds (22) See, Kautzmann v James, 66 S. (2d) 36 (Fla., 1953) (misbranding of drug- doctrine of res judicata barred recovery) (23) See, Walgreen Drug Co. v Sfiarp & Dohme, CCH 22,350 (ill., 1954) (misbranding of drug-recovery over action) Page 22. Rule 8(b), after subpara. (9) add: (10) Cone v Virginia-Carolina Chemical Corp., 174 So. 554 (Miss., 1937) (sale by dealer of fertilizer) (11) Willey v Pyrogas Co., 251 S.V). (2d) 635 (Mo., 1952) (sale by wholesale dealer of defective heater) (12) Shafer v Barbler, 259 S.W. (2d) 461 (Ky., 1953) (no proof of harmful ingredient in dye applied by beautician) Section 2-C (Special Problems in Negligence Cases) Page 23. Item a(a), after subpara. (17) adds (18) Burt v Lake Region Flying Service, Inc., 54 N.W. (2d) 339 (N.D., 1952) ($1,100 for loss of produce of oats crop) (19) Kieffer v Blue Seal Chemical Co., 107 F. Supp. 288 (N. J., 1952) ($250,000 for permanent disfigurement and loss of earning power) Page 23T Item a(c), after subpara. (5) adds (6) Dubois v Phillips Petroleuni Co., 59 S. (2d) 107 (La., 1952) (damages for injury to rice crop reduced) Page 23. Item a(d) (2), after subfjiara. (ii) add: (iii) 2l U. of Kan. City L. Rev. 160 (1953) - Damages - Liability from Crop Dusting Page 24. Item b(a), after subpara. (11) adds (12) Grossgold v Brooklyn Jewish Center, 112 N.Y.S. (2d) 66 (1952) (ovei-exposure to ultra-violet lamp) (.13) Blissenbach v Yanko, 107 N.E. (2d) 409 (Ohio, 1951) (construction of vaporizer apparent to purchaser) (14) Black v Bennett, 55 N.W. (2d) 795 (Mich., 1952) (use of embalming fluid by experienced person) Page 24. Item b(b), after subpara:. (10) adds (11) Fein v Bonetti, 111 N.Y.S. (2d) 840 (1952) (application of hair dye) (12) McClanahan v California Spray-Chemical Corp., 75 S.E. (2d) 712 (Va., 1953) (failure to follow directions for use on label of fungicide, held question for jury) Page 25. Item c(a), after subpara; (8) add: (9) Willey v Pyrogas Co., 251 S(W. (2d) 635 (Mo., 1952) (negligence of manu facturer in testing not relieved by negligence of dealer) Page 25. Item e(a), after subpara, (2) adds (3) Shafer v Reo Motors, 205 F. (2d) 685 (Pa., 1953) (disclaimer releasing motor vehicle manufacturer from liability for breach of warranty and "all other obligations or liabilities" jheld effective bar against either breach of warranty or negligence actions) 36-3 (1953 Cum. Supp.) (4) Maryland Cas. Co. v Owens-Illinois Glass Co., 116 F. Supp. 122 (W. Va., 1953) (disclaimer effective as to negligence and warranty) Page 25. Item e(b), after subpara. (3) add: (4) Burr v Sherwin-Williams Co., 258 P. (2d) 58 (Cal., 1953) (disclaimer on label ineffective as to third parties not having opportunity to see the label) Page 25. Item e(c), after subpara, (ii) add: (ill) General Digest, Sales, key no. 267 Page 26T Item f(a), after subpara. (3) add: (4) Saporito v Purex Corp., ^43 P. (2d) 910 (Cal., 1952) (explosion of bottled cleaning fluid) (5) Burr v Sherwin-Williams Co., 258 P. (2d) 58 (Cal., 1953) (sale of pesticide) (6) Pope v Edward M. Rude Carrier Corp., 75 S.E. (2d) 584 (W. Va., 1953) (explosion of dynamite) (7) See, Lock v Confair, 93 AL (2d) 451 (Pa., 1953) (explosion of carbonated beverage) Page 26. Item f(b), after subpara. (6) add: (7) Webb v Sandoz Chemical Works, 69 S.E. (2d) 689 (Ga., 1952) (injury from use of drug) (8) Koktavy v United Fireworks Mfg. Co., 117 N.E. (2d) 16 (Ohio, 1954) (explosion of aerial bomb) Page 26. Item f(c)(2), after subpara (xiii) add: (xlv) Note: 13 Mont. L. Rev. 53 (1952) Page 27. Item g.2(a), after subpara. (6) add: (7) McClanahan v California Sppay-Chemical Corp., 75 S.E. (2d) 712 (Va., 1953) (fact of registration.of fungicide under federal and state economic poisons laws admissible} evidence showing effect of such registration not admissible) (8) See Pruett v Burr, 257 P. (2d) 690 (Cal., 1953) (certain memos prepared by state officials in investigation not' admissible as hearsay) Page 27. after Item h.2., add a pew subsection to read: 3. Statute of Limitations 1. In most states, product liability claims for injury based on negligence are governed by statutes of limitation which commence to run from the "date of the injury" or from the "date when the cause of action accrues." However, in at least one state, the statute of limitations for such claims relates to "the date of the act or omission complained of." The question becomes important when considerable time elapses between the placing of a product on the market and subsequent injury or damage from the product. (a) SaSesJjuMchJMhi&jdestipnwas jjn.yql.ved: (1) Dincher v Maarrlliinn piirearms Co., 198 F. (2d) 821 (Conn., 1952) (Connecticut statute of limitations runs from time of negligence complained of and not time of injury) Page 27. after Item h.3., add a npw section to reads In many cases, the use of chemicals by federal, state and local governmental units produces liability claims. As a general rule the principle of sovereign immunity bars the action. However, there may bp a question whether the government was acting in a proprietary capacity in which casp there may be recovery. Brown v Sioux City. 49 N.W. (2d) 853 (Iowa, 1953) or, in the .tjiase of the federal government, vtfiether the Federal Tort Claims Act permits the suit. i For a recent case denying government liability under this Act for crop spraying operations, see Harris v United States. 205 F. (2d) 765 (C.A. 10th, 1953), and Bawden_.v.mited State si 200 F. (2d) 176 (C.A. 4th, 1952). An annotation in 25 A.L.R. (2d) 1057 is rather exhaustive on the tort liability of state and local govern mental units for damage resulting from insecticide operations. Section 3-A (Manufacturers Liability fpr Breach of Warranty) Pace 28. Rule 2(a), after subpara. (4) adds (5) Randall v Goodrich-Gamble Co., CCH 22,279, reversed 54 N.W. (2d) 769 (Minn., 1952) (manufacturer of liniment liable to subvendee for breach of express warranty) (reversed on rehearing becaujse of erroneous instructions) 36-4 (1953 Cum. Supp.) (6) Worley v Procter. & Gamble Mfg. Co., 253 S.W. (2d) 532 (Mo., 1952) (detergent manufacturer subject to liability for personal injury to pur chaser from dealer where warranty was made on label; no liability on other grounds) (7) Burr v Sherwin-Williams Co., 258 P. (2d) 53 (Cal., 1953) (pesticide manu facturer liable for property damage to non-purchaser) Page 28. Rule 2(b), after subpara. (6) adds (7) Cohan v Associated Fur Farms, 53 N.W. (2d) 788 (Wise., 1952) (feed-ingredient supplier not liable to purchaser from processor-dealer for loss of mink) (8) Frier v Procter & GamblejDistributing Co., 252 P. (2d) 850 (Kan., 1953) (detergent manufacturer (lot liable for personal injury to ultimate user) (9) Wood v General Electric Co., 112 N.E. (2d) 8 (Ohio, 1953) (manufacturer of electric blanket not liable for personal injury to purchaser from dealer) Page 28. Rule 2(c), after subpara. (2)(ii) add: (ill) 21 0. of Cinn. L. Rev. 460 (1952) "Theories of Recovery by the Ultimate Con sumer from the Retailer or Manufacturer in Contract or Tort" Page 29. Rule 3(a), after subp^ra. (5) add: (6) Park v Moorman Mfg. Co., '241 P. (2d) 914 (Utah, 1952) (statement by salesman that poultry feed concentrate would produce at a certain level held an express warranty) (7) Worley v Procter & Gamble! Mfg. Co., 253 S.W. (2d) 532 (Mo., 1952) (detergent manufacturer subject to liability for warranty of safety on label; no liability on other grounds) (8) Wasatch Chemical Co. v Lepn, 259 P. (2d) 301 (Utah, 1953) (pesticide manu-. facturer liable to purchaser on basis of oral claims for safety made at the time of sale) Page 30. Rule 4(a), after subpara. (7) add: (8) Burr v Sherwin-Williams Co., 258 P. (2d) 58 (Cal., 1953) (pesticide manufacturer) (9) Wasatch Chemical Co. v Leon, 259 P. (2d) 301 (Utah, 1953) (pesticide manufacturer) Section 3-B (Vendors Liability for Breach of Warranty) Page 31. Rule 2(b), after subpapa. (2) add: (3) Bowman Biscuit Co. v Hines, 251 S.W. (2d) 153 (Tex., 1952) reversing CCH 22,280 (Tex., 1952) (food wholesaler not liable for personal injury to purchaser from retailer) (4) Duncan v Juman, 96 A. (2d) 415 (N.J., 1953) (food vendor not liable for personal injury to members of purchaser's family) Page 31, Rule 3(a), after subpara. (8) add: (9) Phillips v Whelan Drug Co., CCH 22,286 (Pa., 1952) (oral statement that cosmetic was suitable for bleaching skin held an express warranty) (10) Keller v Flynn, 105 M.E. (2d) 532 (ill., 1952) (oral statement that hogs were long time treated and safe held an express warranty) (11) Posts11 v Boykin Tool & Supply Co., 71 S.E. (2d) 783 (Ga., 1952) (oral statement that dealer "would stand behind" product, held an express warranty) Page 31. Rule 4(c)(2), after subpara, (v) add: (vi) Amram & Goodman, Problems in the Law of Implied Warranty, 3 Syracuse L. Rev. 259 (1952) Page 32, Rule 4(a), after subpara. (18) add: (19) Higbee v Giant Food Shopping Center, 106 F. Supp. 536 (Va., 1952) (retailer of cosmetics sold in sealed package liable for breach of implied warranty of Aolesomeness) (20) Schilling v Roux Distributing Co., 59 N.W. (2d) 907 (Minn., 1953) (hair dye) 36-5 (1953 Cum. Supp.) Section 3-C (Special Problems in Warranty Cases) Page 33. Item a(a), after subpara. (7) add: (8) Park v Moorman Mfg. Co., 241 P. (2d) 914 (Utah, 1952) (feed; measure of damages for breach of warranty where subject-matter has no true market value) (9) Wasatch Chemical Co. v Leon, 259 P. (2d) 301 (Utah, 1953) (pesticide) Page 33. Item a(c), after subpara. (l) add; (2) Missouri Bag Co. v Chemical Delinting Co., 58 S. (2d) 71 (Miss., 1952) (damages not proved to reasonable certainty) Page 33, Item a(d), after subpaia. (2) add; (3) Hlgbee v Giant Food Shopping Center, 106 F. Supp. 586 (Va., 1952) ($4,000 damages for temporary loss of hair held excessive and reduced to $1,500) Page 34. Item c(a), after subpara. (14) adds (15) Worley v Procter & Gamble Mfg. Co., 253 S.W. (2d) 532 (Mo., 1952) Page 34. Item c(b), after subpara. (10) add: (11) Schilling v Roux Distributing Co., 59 N.W. (2d) 907 (Minn., 1953) (ingredient in hair dye) Page 34. Item c(c)(2), after subpara, (iv) add: (v) 51 Mich. L. Rev. 447 (1953) (vi) Cady, Cosmetics and the Allergic Consumer: a medicolegal synthesis, 8 Food, Drug, Cosmetic Law Journal 701 (1953) Page 34. Item c(c)(3), after subpara. (11) add: (ill) 26 A.L.R. (2d) 963 - "Seller's or manufacturer's liability for injuries as affected by buyer's or user's allergy or unusual susceptibility to injury from article." Page 35. Item d(a), after subpara. (5) add: (6) Hall v Mosteller, 245 S.W. (2d) 338 (Tex., 1952) (disclaimer in contract of sale of seeds effective in breach of contract action based upon failure of seeds to produce) (7) Shafer v Reo Motors, 205 F, (2d) 685 (1953) (disclaimer in contract of sale of motor coach) (8) Maryland Cas. Co. v Owens-Illinois Glass Co., 116 F. Supp. 122 (W. Va., 1953) (disclaimer in contract) Page 35. Item d(b), after subpara. (5) add: (6) McPeak v Boker, 53 N.W. (2d) 130 (Minn., 1952) (disclaimer in bill of sale that boat "was not guaranteed In any way" did not exclude implied warranties) (7) Keller v Flynn, 105 N.E. (2d) 532 (111., 1952) (disclaimer after contract is concluded is ineffectual unless buyer assents to change) (8) Burr v Sherwin-Williams Co., 258 P. (2d) 58 (Cal., 1953) (disclaimer on label not seen by ultimate purchaser) (9) Diepeveen v Larry Vogt, 99 A. (2d) 329 (N.J., 1953) (disclaimer in sale of bulbs ineffective because made after consummation of sale) Page 35. Item d(c)(2), after subpara, (iii) add: (iv) 53 Col. L. Rev. 858 (1953) -i Warranties, disclaimers and the parol evidence rule ase_35, Item e(a), after subpara. (3) add: (4) De Lucia v Coca-Cola Bottling Co., 89 A. (2d) 749 (Conn., 1952) (lack of notice by buyer of breach barred warranty action arising from the presence of a decayed grasshopper in a bottled beverage) (5) Cohan v Associated Fur Farms, 53 N.W. (2d) 788 (Wise., 1952) (estoppel to raise question of untimely notice-question for jury) (6) Mead v Coca-Cola Bottling Co., 108 N.E. (2d) 757 (Mass., 1952) (type of notice required) (7) Victorson v Albert M. Green Hosiery Mills, 202 F. (2d) 717 (Pa., 1953) (notice of breach given four months after last shipment and ten months after initial shipment not unreasonable as a matter of law) 36-6 (1953 Cum. Supp.) Page 36. Item f.l., after subpara. (3) add: (4) Cohan v Associated Fur Farms, 53 N.W. (2d) 783 (Wise., 1952) (doctrine of res judicata barred recovery-over action) Page 36. Item f.2., after subpara. (2) add: (3) Blessington v McCrory Stores Corp., 111 N.E. (2d) 421 (N.Y., 1953) (breach of warranty claim governed by statute of limitations pertaining to contracts) Page 36. Item f., add new_subsection: 4. SjjbEsaatigg i) Bankers Indemnity Ins. Co. v Frigidaire Sales Corp., 113 F. Supp. 405 (Mo., 1953) 36-7 (1953 Cum. Supp.) PART II --.----- Product Liability Decisions Involving Pesticides (Including.Agricultural and Household Insecticides. Fungicides. Rodenticides. Herbicides, and Disinfectants) I* Jones v George. 61 Tex. 345 (1884t Action to recover damages for a breach of warranty in the sale of an insecticide by the defendant druggist to the plaintiff. Plaintiff was sold a quantity of "chrome green" by defendant instead of "Paris Green" as re quested. The product was purchased for use on plaintiff's farm in controlling cotton worms. The evidence showed, that "Paris Green" would have destroyed the worms on plaintiff's cotton, whereas the product furnished was wholly ineffective. Plaintiff offered to prove the value of the cotton as it stood before destruction by the worms, but this was excluded by the court on the ground that the value of the cotton did not constitute an element of actual damage. This, together with the giving of an instruction assuming the same principle, was assigned as error. Held, reversed. Although technically no warranty existed," there was an implied contract that the seller sold and delivered an article of the kind contracted for. The truss measure of damages in such a case should have been the value of the crop before it was destroyed by worms, the cost of the insecticide, the cost of its prepara tion and application, with interest cm the money expended. 2. )S^s&JlsJ1rtacllaa_j^^ .D.C,. 345 (1916) Action to recover damages for personal injuries sustained by plaintiff as a result of an explosion which occurred during the application of an insecticide manufactured by defendant. Plaintiff had purchased a quantity of insecticide known as "K11-Bug" for use in spraying the premises of his employer. While using this with a sprayer, also furnished; by defendant, plaintiff's eyes were severely Injured when an explosion occurred. The evidence showed that defendant had orally represented that the insecticide was not poisonous and could be used In the accompanying sprayer wdthbut harm to the person using it, and that defendant had .failed to properly label the receptacle. Recovery was sought .on this grounds of false representations, failure to label, and the selling of a sprayer which was not in .psfaper condition in that it failed to Indicate when sufficient air had been pumped $ , ,in the machine. Numerdus instructions were given by the court, and the jury returned a verdict for the plaintiff for 2 000 Held, affirmed. The basis of liability was stated by the court as follows: "The defendant was charged, and the]jury necessarily so found, that the disinfectant was sold with the representation of its haimlessness. Whether so or not, it was the duty of the defendant to label the can containing the fluid so as to show its dangerous character, or to represent the same to the party purchasing. A man who delivers an article which he know to be dangerous, without notice of its nature and:qualities, is liable for any injury which may reasonably be contemplated as likely to result, and:Which does in fact result, therefrom, to that person or any other, who is not hims:jlf In fault,, .and. it matters: not whether the person injured was the actual purchaser from the defendant, if his use of the shake was that intended." 3Action to recover damages for the loss of plaintiff's cows sustained as a result of applying "Quack Destroyer" to his grass. The compound was purchased bjy plaintiff from defendant dealer. Eight cows died from eating the grass to which the mixture had been applied. Recovery was sought on the ground that defendant had negligently failed to label his product with the word "jPoison" as required by statute. The jury rendered a verdict of $450 for plaintiff and defendant appealed. Held, affirmed. The violation of the statute in question constituted negligence as a matter of law. The evidence further supported the finding that! the negligence was the proximate cause of the injury resulting, and that plaintiff was not guilty of contributolry negligence. 4. Action to recover damages for the loss! of plaintiff's cattle caused by their drinking water containing arsenic (for eradication of Texas ticks}. The poispn flowed from a dipping vat maintained by the defendant carrier on its right of way. Plaintiff sued on the theory that defendant was negligent in failing to enclose its dipping com pound so::as to prevent injury to: trespassing cattle. Halil* jitdgarient for plaintiff: affirmed:. The evidence was sufficient to support a finding of negligence on the part of the .railroad company. 5- Action to recover damages for the loss'of plaintiff1 s cow alleged to have been killed by the negligence of the defendant railway company. The evidence showed that the cow, running at large, was poisoned by drinking an arsenic dip Insecticide used by the defendant for destroying fever ticks on livestock. The dip had flowed frcra a tank car of the defendant: and had formed a pool along defendant's right of way. The defendant's agent failed to remedy the condition after being notified of its existence.31 31. The court said that an implied warranty of fitness and quality would have arisen if the "Paris Green" had been of Inferior quality but that the non-conformity of a product delivered to the description under which it was sold was in the nature of a breach of contract. It will be noted that this is now covered under the uniform sales act by the warranty of description. 37 H.SM> judgment for plaintiff affirmed. The evidence was sufficient to support a finding of negligence in that the defendant failed to exercise reasonable care to prevent injury to the cow after discovery of the escaped poisonous fluid.32 6- s and Sciences,. 162 N.Y.5. 625 (1916) Action to recover damages for personal injuries to plaintiff caused by the explosion of a disinfectant which defendant and others were using on stuffed bird specimens in a case. The plaintiff assisted in the disinfecting operation. The disinfectant contained carbon disulphide. The evidence showed that the quantity used in a space of that size formed a highly explosive mixture, that it was likely to dissolve the insulation on electric wires in the case,, whereby a spark sufficient to explode the mixture could be created. Recovery was sought on the ground that defendant, supervising the disinfecting, was negligent in using such a quantity under the circumstances. 8&lSk$ judgment dimissing the complaint reversed. There was sufficient evidence of negligence for the jury. 7* jSssBBaLiLiasfefiiiasm^ ?ll. (flash,,. 191.3) Action to recover: damages for the destruction of a large part of plaintiff's prune orchard resulting from the use of an insecticide sold by defendant. Plaintiff had actually purchased the insecticide from a seed company which was not connected with'the defendant. Recovery was sought on the ground that plaintiff had made a prior purchase of the same, product seme years before from Another party and. that the labels on the can of this product stated "Trunks of fruit tree painted with Avenariiis Carbolineum will not be troubled with boxers and will become healthier," . Held, directed verdict for defendant affirmed. There was no privity of contract between plaintiff and de fendant. The court concluded! "The Avenarius Carbolineum is not shown- to be of a noxious or dangerous kind. It was not shown that the respondent (defendant) had been guilty of fraud or deceit in passing off the article, or that the respondent had sold or ever had possession of the article purchased by the appellant (plaintiff)j and it was not shown that the respondent had been negligent in any respect with reference to the sale of the article purchased by the appellant and used upon his fruit trees. Mot coming within any of these exceptions, the general rule must apply that, where there is no privity of contract, between the appellant and the respondent with reference to the sale of the Avenarius Carbolineum, no liability exists-against the respondent." r a- i?3.n .|. 566 (M!m..,.i.9i9) Action to recover damages for wrongful death against a wholesaler dealer in drugs. The defendant dealer had sold a quantity of "Roach Doom" to the state! board of control for use in the extermination of roaches in various state institutions. Plaintiffs intestate, |an employee of one of these institutions, ate some of this compound in ignorance of its poisonous character and Subsequently died. Recovery was sought on the ground that the product was not labeled- to showi its poisonous and dangerous nature. Held a judgment for defendant. A manufacturer or vendor, putting out and selling articles inherently danger ous, without notice to others of their dangerous nature and qualities, is liable for any Injury to any third per son which might have been reasonably foreseen by the manufacturer or dealer in the exercise of ordinary care. However, the complaint here was defective since (a) there was no allegation that Roach Doom was imminently danger ous, (b) there..mas no positive'.allegation that defendant, a vendor, actually knew that Roach Doom contained poison ous or deleterious ingredients, and (c) there was no allegation that the label did not give adequate notice of the character'.of the substance, since the name Rgach Doom itself would be sufficiently suggestive of the danger to life from -the preparation. c Action to recover damages for the loss df plaintiff's sheep poisoned by the use of an excessive solution of cresoi spray used by defendant to disinfect the cars used in transporting the sheep. The evidence showed that the disinfectant, instead of being a 3 per cent 4lution of cresoi, the amount prescribed by government formula, was from 5 to H times thfe proper amount. The lods of the sheep was due to the inhalation of the cresoi fumes and the consumption- of the disinfectant. iisMj; judgment for.plaintiff affirmed. 'There was sufficient evidence to support a jury finding of negligence on the part of the carrier. # 10 SiifLJLSallfianlaig^ Coro....257. Pac,_99. (Cal,. 192?) Action to recover damages for personal injuries sustained by plaintiff from the use of an insecticide manu factured by defendant. The product, "Ortho Lime Sulphur Solution," consisted of 1056 lime, 20J6 sulphur and 7056 water, and,was sold for use in spraying orchards and vineyards. Plaintiff bought it from a fruit exchange of which he was a member, the exchange having purchased it from a retailer who had in turn bought it from the defendant man ufacturer. .Hie-barrels or drums were.properly labeled and indicated the quantity, quality and ingredients of the solution, -Plaintiff-ftadi-used the, spray for four years prior to the accident in question, which occurred when the solution squirted into his eye as he opened a! barrel for the first time. The manufacturer was charged with negli- ................... .......... ........................... f 32. Other cases involving the liability of railroads for damage to livestock arising from the use of chemicals on rights of way Includes (1) Ft. Wqrth & R.-G. Ry, Co. v Brow, 173 S.W. 943 (Tex., 1914) (2) Texas & N. 0. R. Co. v Jones, 242 S.W. 269 (Tex., 1922) (3) St. Louis-S. F. Ry. Co. v Fletcher, 253 S.W. 12 (Ark., 1923) (4) Texas 8, M* 0. R. Co. v Kaderli, 33 S.W. (2d) 832 (Tex., 1930) (5) McKenzie v -Powell, 21 S.E. (2d) 735 (Ga., 1942) (6) Louisville t N 1, Co. v Gillespie, 172 S.W. (2d) 1015 (Tenn., 1943) (7) Wright v Illinois Cent. R. Co., 16 S. (2d) 381 (Miss., 1944) * 38 gence in packing the solution and failure to warn of dangers incident to its use. Defendant contended that it was not guilty of negligence, that it was not liable to a purchaser from a retailer, and that the loss of plaintiff.'s eye was not due to injury caused by the solution but by attempted removal by surgery of scar tissue from the eye after it had successfully healed. Held, judgment for defendant affirmed.33 The court reviewed the evidence and concluded: "The record shows that the labels which were placed upon the drums gave specifically and in detail the quantity, quality, and ingredients contained in each. The accuracy of the label is unquestioned. There was also testimony to the effect that the substance had been handled for many years without anyone experiencing any injurious results. ....nor was there any testimony Introduced from which the jury could conclude that the chemical content of the drums were not correctly stated on the labels, ncr was there any testimony from which the jury could conclude that the contents of the drum in Question was imminently or inherently dangerous, or contained anything from :whieh the jury couldl conclude that a user thereof, In the ordinary course of handling, or in applying it to the| uses and purposes, for which it was intended, would be ex posed to any hazards, or to. anything that (tight result injuriously to either life or limb.... There being net contractual relations between the plaintiff .and the defendant in this case... recovery canr only be had in tort, and then only when the compound or substance sold is immi nently and inherently dangerous and such' danger concealed by the seller." 11 Kolbero v Sherwin-Williams Co. 269 Pac. 975 (Cal.. 1928) * Action to recover for damage sustai ned by plaintiff from the use upon his orange orchard of a product manufactured and sold by the defendant for th purpose of spraying orange and other citrus trees to destroy scale, The solution, known as "Citro-mulsion", COB'tained about 73% heavy gravity hydrocarbon oil and about 27% inert ingredients. .Experiments conducted prior to the sale:showed that solutions with from 4% to 8% of the citroraulsion with the balance water resulted in 75% - 90% defoliation. The manufactured article was sold by the agents of defendant to the plaintiff through a dealer under an agreement that the dealer would apply the spray to plaintiff's .orange trees under the direction and cont col of defendant's agents. The spray was applied under this arrangement and resulted in serious, injury to the tre as sprayed and in the loss of a large portion of the crop of oranges, Plaintiff sued upon; the theory that th m inufactured "article was inherently dangerous to citrus fruit trees; that this fact was.known to the defendant, and that the plaintiff was induced to purchase it and have it applied to his trees through the fall representation of defendant's agents that it would not injure the trees or the fruit or the buds. Judgment was riandered: for $6,100 ii ; favor of .plaintiff, and defendant appealed. Held, .affirmed.' The liability of tl * defendant rested upon the rule that a manufacturer or seller of an article inherently dangerous to life or p; operty is liable for injuries to the ultimate consumer who has purchased through a middleman. The evidence was su fficient to show that the product contained oil that was inherently dangerous to leaves and that defendant knew fchis by reason of .prior experiments. i2. Action by plaintiff seller to recover the purchase price of a tree spray in which the defendant purchaser filed a cross-complaint for property damage caused by the spray after representations by plaintiff's agents that the spray was harmless. Evidence was introduced showing that the use of the spray, which contained oil, damaged the fruit growing on defendant's citrus trees in the suin of $2:,300.. Judgment was entered in favor of the defen dant in the:sum of: $714, the difference between the amount of the alleged damage and the purchase price of the spray. Plaintiff appealed on the grounds that there was no showing of negligence and, secondly, that he had disclaimed; liability for: harm resulting from the use of his spray. Held:, afflrmbd. (l) The evidence supported the finding that plaintiff's agents falsely represented that the spray "would1 not burn* scald, or in any way harm citrus fruit trees, their fruits or foliage, regardless of the temperature-or weather conditions." Thesi representations1 must have been known by plaintiff to be false due to the findings- by other, entomologists, of. th injurious effects, of spraying citrus trees with this product. (2) The evidence would not support a finding that!any label, containing a disclaimer of results, actually appeared on any of the drums of spray.which were delivered to the defendant. 13. Sherwin-Williams Co...of Texas, v Offenhauser. 42 S.W. (2d) 859 (Tex.. 19311 Action to recover damages for breach of warranty against a manufacturer of arsenate of calcium. The defen dant sold to th plaintiff a quantity of drums of arsenate1of calcium for resale to other farmers for use in the control: of cotton toas and boll weevils. The drisns were labeled with the name of the product, that it was "sold for insiscticidte purposes" and contained directions for use.upon potatoes and other vegetables, and for dusting cotton Ifor cotton boll weevils. The evidence showed that the quantity purchased by plaintiff from defendant for $2,700 was, in turn* sold, by plaintiff to farmers for $4,903, but that the product completely failed to kill in sects as represented and plaintiff wa$.forced to make'refunds and furnish another brand of insecticide. Recovery was sought on th: ground thatthe substance sold by defendant was not an insecticide as represented, was not marketable,.and was not suitable for the purposes for which it was sold. The jury returned a verdict in favor of plaintiff for $8,095. Hfeld't judgment modified and affirmed). (1) The evidence established that arsenate of calcium is well, known as an insecticide artd is usedfor the purpose of killing army worms and boll weevils feeding upon cotton plants and was; sold1 for that purpose, These facts established that there was an implied warranty that the product was reasonably useful Tor the purpose for whiph it was sold. The jury were justified in finding that there was a breach of this.warranty. (2) :ffor the bredch of warranty, the measure of damages was the difference between the value of th" product warranted.and the value of the product actually delivered. If the article delivered were wholly Worthless the entire value warranted could be recovered. Therefore, recovery of $4,983 was justified.33 33. The court held that the trial court Should have directed a verdict in favor of defendant but that since the jury gave a verdict for defendant, there! was no prejudicial error. 39 However, damages of $2,500 as injury to plaintiff's business, $437 for replacing some of the worthless arsenate to the farmers, and $175 for investigations, were too remote and speculative to authorize recovery. 14 Ingraham v Associated Oil Co.. 6 P. (2d) 645 fWash.. 1'9321 Action to recover damages for breach of warranty sustained by plaintiff as a result of spraying his peach orchard with "Avon Spray Emulsion," an oil spray manufactured by defendants. Plaintiff contended that at the time the defendants sold the oil spray to him, they expressly warranted^4 that the spray would kill aphis pests on fruit trees and would not injure the trees or fruit, whereas the spray was not suitable for the purposes for which it was intended in that it was old, and the elements composing the spray had broken down, thereby freeing the oil. The evidence further showed that when the spray was applied it.killed some of the trees and injured many others and damaged the.growing crops and that it failed to kill the aphis pests* Defendant contended that at the time the spray was sold there appeared upon each of the containers a notice disclaiming any warranty, either express or im plied, "for any injury, resulting . from ;.handling and using the product," IMMs. judgment fpr plaintiff affirmed; (!) The jury were justified in finding that the defendant made an express warranty of hie product .in the oral!representations to plaintiff and that these were breached. Since the jury found that an. express warranty of fitness was made, no subsequent disclaimer would be effective unless as sented to by the plaintiff. .(2)-The court Correctly instructed the jury that, in assessing damages, they should estimate the difference in the^ market ^value! of the orchard .beforehand after the injury complained of, and, in es timating the market value of the orchard.,, they should'consider the value'of the crop which the trees would have produced during the current season had they .not been injured, less the cost of producing and harvesting the crop. * * 15- . Action to recover damages for personal injuries to plaintiff caused by the explosion of a chemical disin fectant manufactured by defendant and sold to plaintiff by a traveling dealer. The proof at trial showed that when, the plaintiff handled the purchased bottle of disinfectant, it exploded and destroyed the sight of one eye. There was also proof tending to show that the ingredients used in the disinfectant were such that a gas would form which would acpumulate, if not released, and cause an explosion. Recovery was sought on the ground of negligence. After a verdict for plaintiff, defendant appealed on the ground that the trial court should have given binding instructions for defendant on the ground that there was no 'privity between plaintiff and defendant. Held, affirmed. The defendant prepared--the disinfectant for the purpose of sale through a dealer and there fore could not avoid liability on the ground of lack of technical privity. * 16. 354 36 Action by a farmer to recover damages for the death ox one of his cows. The evidence showed that the defen dant was engaged in. spraying trees on a public road adjacent-sto plaintiff's pasture. Some of the spraying solution containing arsenate- of lead was. carried by the wind to the p-slura and the cow was poisoned through eating sane of the grass. Defendant had knowledge of the proximity of the farm- but gave no notice to the plaintiff of his oper ations. Held, judgment for plaintiff affirmed. Where animals are injured or killed by reason of eating poisonous substances present upon land through the act of a defendant, !a right of action against him will lie in behalf of the owner of the livestock. 17. .193.3) Action to recover damages for injury to plaintiff's bees caused by the defendant's dusting his lettuce crop with an insecticide, "Dutox No. 20". The defendant employed an aerial dusting company to perform the spraying to control worms. The spraying was done in the morning from an airplane flying over the field and over plaintiff's apiary. Seventy-five colonies of bees, were destroyed by the insecticide. A verdict was rendered for $2,000 in favor of plaintiff, and defendant appealed on the grounds that the dusting company was an independent contractor and that therefore defendant was not liable fox any damage suffered by the plaintiff, and secondly, that the ver dict was excessive. . . Held, affirmed. (1) The owner of premises may not delegate the work of dusting or spraying a crop with poi sonous insecticides to an independent contractor and thus avoid liability. (2) The verdict was not excessive. The proper measure ;of damages was the difference, between the markjet value of the bees at the time they were damaged and the value of the colony after bees were killed, with reasonable expenses incurred in effort to mitigate loss. 18. ..E,_(2dl. 26 .(Iowa .....1934) Action to recover for damage to gladiolus bulblets allegedly caused by the use of "Semesan", a seed disin fectant or fungicide manufactured by defendant and purchased by plaintiff through a dealer. The company recom mended its use for the treatment of seeds, roots, and'bulbs before planting and represented it as a safe and bene ficial plant disinfectant, and, by labels on.the containers and by pamphlets furnished to customers through dealers, directed how it should be used. Plaintiff sought recovery on the ground that the defendant negligently failed to 34. The original complaint was framed on the theory of both an express and implied warranty. During the course of the trial, the court withdrew from the jury all evidence pertaining to an implied warranty and submitted only the question ifhather an express warranty had been made. 35. See, Gilmdn v City of Concord, 195 Atl.. 672 (N.H., 1937) (action against a municipality to recover for the loss of plaintiff's chickens, poisoned by a. tree spray employed by defendant to eradicate pestsj judgment for defendant on the theory of governmental immunity) 36. The court estimated compensable damages as follows: market value of 75 colonies destroyed-or absorbed, $7.50 each - $562.50; damages to 303 rebuilt colonies at $4.50 each - $1,382.00; wages of two apiculturists $100; honey fed to bees - $80; wages of plaintiff for extra work caused by the poisoning of bees - $300. The court rejected as speculative a claim for damages! by reason of the loss of increase, fixed at 250 -hives. 40 give proper directions for the treatment of bulbiets. The company alleged that the plaintiff's loss was the re sult of the improper use of the product, i.e., the bulbiets were not dried and planted immediately after treatment. The trial court charged the jury that if plaintiff had followed the directions for use and his bulbiets were de stroyed, he would be entitled to recover. The jury returned a verdict for $7,500 in favor of plaintiff, and de fendant appealed contending that the nontyarranty of results clause37 3p8rinted on the label attached to the containers constituted a defense, that there was no Iprivity of contract between the parties, and that there was no substantial evidence of negligence on the part of the defendant. Held. reversed. Although the lack ofj.privity was no defense, notwithstanding the fact that only property dam age was involved,.and although the disclaimer was ineffective to relieve liability for negligence, there was .re versible error in the court's instructions and a defect in plaintiff's proof. First, under the charge of the court the.liability of the defendant was that of an insurer of the safety of its product when used as directed, whereas .under the law it must appear that! the manufacturer knew .or in the exercise of reasonable care should have known that its product if used as directed, or recnaaiended by it would cause.or be likely to cause such injury. Second, the .evidence1 shewed .that.plaintiff did' not' use the product as directed. As expressly stated by the court: "The manufacturer is not an insured that in every instance and under all circumstances no in jury will result from the use of his product as directed ox recommended, but if he knows or in the exercise of reasonable care should know that if Ms product is used as directed or .recom mended it will cause or he likely to cause material, injury), then he is liable to any person who, in relianoe upon his representations, directions, and recommendations, uses the product for the purpose and in the manner directed and recommended by th& manufacturer and who suffers injury as a direct result, unless it appears that the user also kndw or in the exercise of reasonable care should have- known that the use of the product would be injurious ox would be likely to -cause the injuries complained of." 19. Milea^ ^i-li62-(Pa-L,iSa7) Action to recover damages for the d^ath of plaintiff's bees caused by a poisonous dust, containing calcium arsenate, floating from defendant's field Iwhere mellons were being dusted by an airplane to plaintiff's apiary about ohe-half mile away. Evidence showed that the dust was found in the hives and on the dead bees after the dusting-operations, H6J4.S judgment for plaintiff affirmed. The court stated: 1 "It must be conceded that, in itself, dusting vegetables to kill pests that prey upon them is a necessary and lawful operation which the owner of the vegetables may perform either himself or through his servants, or may have performed by an independent contractor. However, he should not'do the'dusting, or have it:done, under conditions which would Indicate to a reasonably pru dent person .that: damage to Ms neighbor would result. Defendant knew, or should have known, that the light dust projected under pressure onto the mellons would float in the air; there is evidence that a. light breeze was blowing during, the dusting operations. They should have known that the dust would float for a considerable distance when propelled by such a breeze. Dusting material containing a poison that wipuld kill bees was used. Under the conditions prevailing at the tlaie., they; should have foreseen | the ensuing damage to plaintiff. It follows that they must respond in damages." ; 20 Action to recover for damage to plaintiff's lettuce crop as the result of defendant's spraying trees on his adjoining property with a solution or compound containing arsenate of lead. The evidence showed that before the spraying began the plaintiff objected because of the danger to his crop, but that the defendant disregarded this and ordered the* spraying. . HfiM judgment for plaintiff affirmed. The court stated: "The spraying of a poisonous substance in the immediate vicinity of or practically over a crop of vegetables intended for human consumption was the performance of work of such a character that damage: would necessarily result! to the owner of the vegetables unless reasonable precautions were taken to avert such damage* Hejre the. trial court could find that no adequate measures were adapted to protect the plaintiff's property from being sprinkled with the poison, and that the defendant, Unmindful of the plaintiff's protest ordered the work to be done and witnessed its performance. Care in the selection bf an independent contractor in these circumstances was not. a defense." 21 (Tenn.. 1939) Action to recover damages for the death of plaintiff's intestate allegedly caused by the negligence of de fendant. Defendant was employed by the parents of plaintiff's intestate, a child, to exterminate bed bugs and vermin on their premises. The house was vacated by all occupants and turned over to the defendant fox a period of twenty-fbur hours. .Plaintiff's intestate entered the house during this period through a window which had 37. The provision read: "The use of Semesanbeing beyond the control of the manufacturer, no guarantee, express or implied, is made as to the effects of su^h use, whether or not in accordance with these directions or claimed so to be." The court held that this provision constituted a disclaimer of results but not a disclaimer of safety. 38. Applying the familiar rule where damage!to a plaintiff's property has resulted from drifting smokes, dust, noxious gases or similar substances originating on a defendant's property, that "No person is permitted by law to use his property in such a manner that damage to his neighbor is a foreseeable result." See, Restatement of Torts, Sec. 364 gjt. s^q. 41 been left unlocked and was asphyxiated by the hydrocyanic acid used by defendant. Recovery was sought on the ground that defendant was negligent in leaving the window unlocked. Held, directed verdict for defendant affirmed. The proximate cause of the child's death was his own act of entering the house, as a trespasser in violation of the instructions of his parents and the warnings of the defendant.TM Action to recover for personal injuries sustained by plaintiff when rat poison exploded and burned her while she was working in a coffee shop leased to heir employer by the defendant. The defendant had furnished the rat poison to plaintiffs employer for. use on the! premises. The evidence showed that the poison contained about two percent phosphorous and was not dangerously inflammable. SiM judgment for defendant affirmed. (1) Although the defendant knew that the compound was poisonous, there was no showing, that he knew or should mv known that it was explosive or inflammable. (2) Assuming that the defendant violated the statute, "Whoever (shall, except in a safe place on his own premises, lay out strych nine or other poison, is guilty of a misdemeanor", there was no showing that plaintiff's injury was caused by ex posure to a hazard from which it was the purpose of the statute to protect him. 23. tfammand, fonph,CfflrPb;p3U<?fi v .. 1.94Q.) Action to recover damages for injury tojplaintiff's stock poisoned in their pastures adjoining the defen dant's farm by the spreading of a spray containing arsenic. The evidence showed that the airplane pilot spraying defendant's cotton spread the spray upon the pastures of the plaintiff, without cutting off the spray while making his circle' over: the .pasture in turning around to go over the cotton field. Immediately thereafter a mule, heifer, and two milk .cows became sick, one dying on the day the poison was spread, another shortly thereafter, there being ns evidence that any -of the animals were slot before the spreading of the poison. The jury returned a ver dict for plaintiff and defendant appealed on(the grounds that there was insufficient evidence to go to the jury, and, secondly, that the operator conducting the dusting was as independent contractor. Held,,, affirmed, (!) The evidence justified a finding for the plaintiff. (2) The dusting company was an agent of the'defendant, rather than an independent contractor, since the liability arising from the work was non delegable. ! 24. Simpson v American 01 Action to recover damages for personal njuries sustained by plaintiff while she was using an insecticide manufactured by the defendant oil company sold by the defendant druggist. The spray settled upon her body causing inflammation and boils of a serious nd recurrent nature. The can in which the insecticide was sold contained the following label statements "Ft Best Results use Amox hand Sprayer - How to Use Amox - The lOOfs Active-Insecticide. Amox is made for the pose of killing insects, it is not poisonous to human beings, but is sure death to insects. Amox liquid Sprayj is non-poisonous to human beings, but is not suited for internal use. Do not spray on food os plants. Mote With all its insect killing power Amox may be used freely indoors." Plaintiff sought recovery on the grounds of negligence and breach of warranty. The defendant oil company relied heavily sn the fact that, it was not in privity with plaintiff. After a jury trial, the court entered a judgment for $5,000 in favor, of plaintiff, and the defendant oil company appealed. (A voluntary nonsuit was taken as to the retail druggist-) \ Ej&td. reversed on technical grounds. However, the court affirmed that the printed assurances on the label that tfe -product as used in a spray was harmless to human beings constituted a warranty by defendant running with the product into the -hands of the consumer, (for whom it was intended. In the words of the courts "Here we have written assurances that were obviously intended by the manufacturer and distribu tor of Amor for the ultimate consigner, since they, are intermingled with instructions as to the us of the prbdudt; and the defendant mn r-o anxious, that they should, reach the eye of the con sumer that it;had then printed upon the package in which the product was distributed. The assur ances that the .'product as used in a spray was. : harmless to huaan beings while deadly to insects was an attractive inducement to the-purchaser for consumption, and such purchase in large quan tities was advantageous to the manufacturer. We know of no reason why the original manufacturer and distributer should not, for his own benefit and that, of course, of the ultimate consumer, ' make such assurances, nor why 'they should not be relied upon in good faith, nor why they should not constitute a:warranty, on the part, of the original' seller and distributor running with the product into the hands of the consume?, for whom it was intendeds" 25. On the first appeal from a judgment ini favor of plaintiff, 8 S.E. (2d) 813, supra. the court granted a new trial because of error in the instructions (to the jury involving the possibility of a double recovery on both theories presented in the pleadings, namely,, negligence and breach of warranty. On the second trial, the ques tions of negligence and implied warranty were eliminated altogether and the case went to the jury solely upon the express warranty printed upon the container. A verdict of $7,000 was returned for the plaintiff. The court, on this appeal by defendant, affirmed the jjudgmemt. 26. Qr.r;.y Shell Oil Co.. 177 S.W. (2d) 60^ (Mo.. 1943) Action to recover for personal injuries sustained by plaintiff while employed as a laborer at the Whitmire Research Corporation, manufacturing chemists. Under contract, the Whitmire Corporation compounded an insect39 39. See, King v Ohio Valley Terminix Co., 214 S.W. (2d) 993 (Ky., 1948) (action for breach of warranty against exterminator for failure to insulate plaintiff's residence and laboratory against termites as advertised) 42 spray for the defendant Shell Company according to Shell's formulae, ingredients, containers and specifications. The defendant Strain was an employee of Shell and was stationed at the Whitmire plant. His duties were to test the finished products for compliance with the formulae and to inspect the packages for shipment. Plaintiff was employed in misting the insect spray. One of the ingredients used was a compound known chemically as Alphanapthylisthio cyanate. After working on this mixture, plaintiff suffered skin irritations and chronic nephritis. Recovery was sought on the ground that the defendant oil company was negligent in failing to warn plaintiff of the danger incident to the use of its chemicals, and against the defendant Strain for improper supervision. The trial court found for the plaintiff and awarded a judgment for $40,000. This amount was reduced by remittitur to $20,000. Held.- judgment against Shell Company; affirmed and judgment against Strain reversed. The defendant company knew of the inherent dangers of the chemical and therefore had the duty to warn plaintiff. However, the evidence showed that the defendant"Strain had no knowledge of the1-toxin quality of the chemical since the chemical was furnished under its .trade name-which ms ja product new and unknown to him. His duties did not call for an analy sis of the chemical tat only of the finished product. The court set forth the evolution of the rule as follows: "The rule is now well settled that a duty is imposed upon the one who furnished an article which he knows, or dught to know, to be!peculiarly dangerous to give notice.of its character or bear the natural consequences of his failure to do so. This rule. originated as an exception to the general.rule-of non-liability where no .privity of contract exists, and was applied `in cases in volving injuries.from .poisonous dings, chemicals, explosives or articles inherently dangerous to person or property....The rule haf been extended to cover articles not only inherently dangerous in their nature, hut dangerous because of the use to which they are to be put by whoever may use them for the-purpose intended." : Action to recover damages for loss of cows due to alleged poisoning. There was an alfalfa field adjacent to the pasture land leased by plaintiffs. Plaintiffs contended that one of the defendants had furnished poison to kill grasshoppers1 which iwexe infesting the alfalfa and that plaintiffs' cows ate some of the poison near the pas ture fence, Which separated the pasture from the alfalfa field, and that the cows died as a result thereof. The grasshopper poison had been obtained by defendants from a Federal Farm Bureau. Directions for its use expressly provided that it should`be scattered so as to fall on the ground in individual flakes, thus eliminating the dan ger of poisoning domestic or wild animals or birds. The poison was found in chunks near the fence. Held. judgment1 for plaintiff affirmed. The evidence supported a jury finding that defendants were negli gent in applying the poison as they did.-0 28. Ban^giL.y.J^llliagLG.gqperJfePhews. 55 N.E. (2d) 94 (111.,,1944.) Action to recover for personal inji ries to plaintiff as the result of a pine oil disinfectant splashing into her eyes. The product was manufactured by defendant and purchased by plaintiff through a retailer. The injury occurred while plaintiff ms diluting disinfectant in a water container. The disinfectant which was used around dog kennels contained a label she ,ng detailed directions for use, its strength, and a statement that it was "saf-a, noreriisritating .and .of-pleas! odor." Plaintiff, an educated woman, had read the label and was dilut ing the product in. accordance with the directions. Recovery was sought both on the ground of negligence and breach of warranty. Plaintiff relied srqrongly on the label statement that the product manufactured by the de fendant was,, safe,and non-irritating. At! the close of plaintiff's evidence, the trial court directed a verdict for defendant and plaintiff appealed. ; affirmed. There was no evidence that the disinfectant would irritate or injure the eye if it were diluted in accordance with the directiorts on the label. The court stated: "A user of the disinfectant who reads the language of the entire label is clearly apprised that the disinfectant: must be diluted: with water before it can be used for any of the purposes stated os the label,, and the words upon which plaintiff bases her right to recover refer to the disinfectant after the addition of walk1er in accordance with the directions given. Plaintiff knew, far better than the .average indlvidua 1, the effect that this very strong disinfectant, undiluted, would have, upon the eyes, and,.,, she concedes, as she must,, that the disinfectant was not in- tended to be used upon any part Qf the human body." Muee.v oennezz. -j j , a.c. iz q i .577 fGa.,, 1945) Action in warranty to recover for damage to plaintiff's peanut seeds resulting from the use of a fungicide purchased from defendant. Plaintiff purchased a quantity of the unpackaged fungicide, five per cent ceresan, and* 1 2 3 4 5 6 40. Other cases involving liability to pasture tenants for injury to livestock caused by the use of pesticides includes (1) Brady v Sutter Butte Canal Co., 278;Pac. 50b (Cal., 1929) (loss of sheep caused by consumption of grass sprayed with arsenic solutions cause of action stated) (2) Wolfsen v Wheeler, 19 P. (2d) 1004 (Cal., 1933) (loss of sheep caused by the spreading of thallium to kill rodents by the county agricultural commissionerj recovery allowed) (3) Moores v Rumsey, 36 P. (2d) 15 (Okla., 1934) (loss of cattle poisoned by arsenic insecticide; recovery allowed) (4) Reif v Morrison, 100 P. (2d) 229 (N.M., 1940) (loss of cattle caused by consumption of grasshopper poison; recovery allowed) (5) Holt v Mundell, 112 P. (2d) 1039 (Colo., 1941) (loss of cattle caused by consumption of grasshopper poison; recovery allowed) (6) White v Splawn, 133 P. (2d) 298 (wash., 1943)-(injury to cattle caused by consumption of weed poison) 43 jontended that he had requested two per cent ceresan. The evidence was conflicting on this point. Recovery was sought on the ground of breach of implied warranty, The case was submitted to the jury who rendered a verdict in favor of defendant. Plaintiff appealed, alleging numerous errors in the court's instructions to the jury.4-*- Held, judgment for defendant affirmed. (.1) A buyer who knows that an article sold is different from the one which he ordered cannot recover for injury caused solely by his negligent use thereof or by his negligent failure to discover the difference. (2) Pamphlets published by the manufacturer and agricultural bulletins from experlnental station were admissible in evidence to show the use of the chemical purchased to treat the peanut seed was in the experimental stage and that the. buyer wap aware of such fact. (3) The statute requiring branding and stateuant of .contents of packages containing -ealciunj arsenate, lead arsenate, etc., and "other insecticides and fungi cides" did not apply to ceresan under the rule of ejusdeffl;generis. 30. Action by a farmer to recover for damage ;to peach trees resulting from the use of an insecticide manufac tured by defendant. Defendant manufactured ethylene dichloride emulsion and sold arid distributed it under the trade name of ."E-Hs* for the control of peach itree boxers. Defendant had prepared and distributed to the pub lic, including pli'intiff, an advertising pamphlet which read in parts "E-D-E Kills Peach Tree Borers the Safe, Economical Way - Kill the Peach Tree Borer Before it Kills Your Trees - Use the original E-D-E - the uniformly safe and efficient control for peach tree borer."421 4T3he44p4a5mphlet also stated: "The use of this material being be yond our knowledge and-control and involving eoj events of risk to vegetation, we do not make any warranty, express or implied, as to .the offsets: of such use, whether or not In '.accordance with directions or claimed so to be." Plaintiff purchased from various dealers 30 gallons of E-D-E and applied it to about 1,700 peach trees. Later over 400 of these trees died or were materially injured. Plaintiff sued contending that the E-D-E caused the tree injuries; that defendant gave improper directions for its ijse and application} and that defendant was negli gent in placing the product on the market in Michigan without first making field tests in Michigan to determine whether or not, cinder local dietetic and soil sfohdltibns, it wotiM injure peach trees. It was also alleged that the product was SOW under an implied warranty1 by defendant that it was fit for the uses and purposes intended and' would not injure pe&ch tress. At the conclusion of the wiianc, the court directed a verdict in favor of defenders* -and 'plaintiff: appealed:.. Baljd, reversed, (l) Defendant could not escape liability merely by showing that it followed the recommen dations of the United States Department of Agriculture, which recommendations were based upon field tests in states other than Michigan. It was a jury question whether defendant f*as negligent in distributing his product in Michi gan without prop field tests having been mad4 in Michigan. (2) Defendant could not rely upon the disclaimer of guarantee or warranty appearing In its advertising pamphlet due to the other positive representations in the pamphlet that the product was safe. In the raotds of the courts "This was a representation by defendant that, if used as directed, its product E-D-E was safe and would not kill peach tress. If it was negligent in placing such product on the market in Michigan without proper field tests to determine its teffect on peach trees in this State, or if it gave improper directions for the use and application of the product, it cannot escape responsibility for such negligence merely by adding a disclaimer of warranty to Its representation of safety. Altjswph plaintiff claims under the theory of an implied warranty, the r6E|l question is whether or not defendant was Wgligent." (3) Privity of contract was not necessary, since de fendant represented the jwodpei. to be ''Bnlf.osnijly safe" with knowledge that it was inherently dangerous. 31. Harders.MalPoeM,_26_M.j. (2d) .930 (Wls,,. 19A7_) Action to recover damages for the death of plaintiff's intestate allegedly caused by the negligence of de fendant. The .defendant employed'-an exterminator (joined as a co-defendant) to disinfect his premises with cyanide gas. The premises were posted #ith signs reading "Danger - Fumigating with Cyanide Gas - Deadly Poison - Ail Per sons are Warned to Keep Amy - Do Not Enter." 1 Plaintiff's intestate entered the premises to eonmit larceny and was killed: by the- fumes. Herld. judgment for defendants affirmed. . The defendants, were not negligent in failing to give adequate warn ings, And,': secondly, the contributory negligence of plaintiff's intestate was the sole cause of the injuries which he sustained. 32. Sifesoa-y.Caljj^Ma-tea^hgmicii^^ JJ Action to recover damages for the loss of an apple crop resulting from the use of a chemical compound called "Elgetol" purchased by plaintiffs from the defendant. Plaintiffs purchased a quantity of the compound at defen dant's local warehouse and signed an invoice which disclaimed all warranties, express or implied. (Each of the. cans, containing the compound, showed similar disclaimers but. the cans were not introduced in evidence.) Prior to the purchase, plaintiffs had; read a small paper published by defendant which stated tha't Elgetol had shown good control of. mildew but that it should be "stirred thoroughly in its container before removing the proper dosage." The paper recommended usage in the pink or calyx sprays. Plaintiffs were orally informed at the time of sale that the product was in the experimental stage. The evidence was conflicting as to the stage of bud development when 41. These.instructions are.set forth in full in the reported opinion. 42. Detailed directions for use were stated in the pamphlet. 43. Citing with approval Kolberg v Sherwin-Williams Co., supra. and E. I. DuPont de Nemours & Co. v Baridon, supra. Note that the court bottomed its decision on the tort theory of misrepresentation and not warranty. 44. The complete pleadings.in. the Ebers case are contained in an excellent annotation in 17 N.C.C.A. (N.S.) 660. 45. The statement on the. invoice reads "California Spray-Chemical Corporation guarantees the above material sold to be true:to label, if labeled, but makes no other, representation or warranty, express or implied, and shall not be held responsible for any injury resulting from the use or handling of said material whether or not used in accordance:with directions.- When mentioned, results from use of the corporation's products are given for infor mation only. Mo. representative of the corporation may vary any of the foregoing and the buyer hereby accepts said material subject to all the terms hereof." 44 the product was applied and as to the dosage used. Recovery was sought under three theories of action, viz. (1) breach of express warranty, (2) breach of implied warranty, and (3) negligence in recommending the product as a mildew control. The jury returned,a verdict for defendant, but the trial court entered an order granting plaintiffs a new trial. Hsli, reversed with directions to enter judgment for defendant, (l) There was no warranty in connection with the sal, but, on the contrary, an express disclaimer of any warranty on the part of defendant. The fact that plaintiffs did not read the disclaimer was not material. (2) Under the circumstances, the statements in the pamphlet published by defendant war. neither false nor negligently, mad. (3) There was no evidence that the de fendant concealed any information regarding the nature or action of the chemical as a fungicide or insecticide. In conclusion, the court stated: "....respondent had full knowledge that the product as a fungicide and as a thinner during apple biosaoja time was in the experimental stage. As far as the evidence shows, respondent could easily have obtained from the extension service of the United States and the state department of agricul ture full Information regarding thej chemical most advisable to us under the conditions which then existed in his orchard....The case does not fall within the principles announced in cases involving foods, drugs, and!:p3?dducts inherently dangerous to. the health and safety of: human .beings...Elgetol was a merchantable product. There was no danger to be incurred in using it as a dormant spray. The evidence does .not show that its Use is more dangerous than the old standby of lime and sulphur, taking into consideration that lime and sulphur cannot be followed by summer oils.'1 Lund-bara v flolon. Action to recover for damage to plaintiff's bees caused by drifting poisonous dust called "Quick Kill - 155" spread by anrairplane on an adjoining cottjon crop owned by defendant. Plaintiff's apiary was located 880 feet west of defendant's crop. The jury returned a verdict for $1300 (later reduced by the court to $936.30) and defendant appealed on the ^principal-: ground that the evidence did not establish the causal connection between the dusting and the death of the bates in that it was equally likely that the bees went upon the field of cotton that was dusted and were-poisoned there. i&SMj affirmed (one judge dissenting). Thera was sufficient evidence for the jury to believe that the death of thec-bees respited feom defendant'; negligence. The court properly instructed the jury as follows: "It is not enough....for the plaintiff to prove to you by a preponderance of the evidence that the,;defendant did use the insecticide upon his cotton and that it did drift over....into the colonies of bees of this plaintiff lin order to entitle him to recover....but he must go further and:prove that.that was the proximate cause of death of the bees which he claims died." 34. Lulhrlnoer v Mooye. 190.P. (2d) 1 (Cal.. 1948) Action to recover damages for personal injuries to plaintiff resulting from the inhalation of hydrocyanic acid gas.which was being used by defendant pest control operator in fumigating adjoining premises. The case was submitted to.: the jurymen the .theory of absolute liability for miscarriage of an ultra-hazardous activity. The mmjury awarded! $10,000 in. damages and defendant appealed. affirmed.: The.use of.hydrocyanic*acid for fumigation is an "ultra-hazardous activity" which sub jected .thes wiser -to: abiseljut1 liability fox; harm resulting from its miscarriage. The exercise of due care by the pest control operator* udder such circumstances does not operate to relieve liability. 35* Action to recover for damage to plaintiff's bees caused by defendants' dusting nearby tomato fields with an insecticide compound, containing, arsenic trioxide, by airplane. Recovery was sought on the ground that the dust was permitted to drift on plaintiff's hives. The cause was tried by the court sitting without a jury. Judgment w&s, rendered.in favor of defendant. HfeJLdj, ^affirmed. Findings that plaintiff's loss resulted from his own contributory negligence and not from the negligjehee of defendants were sustained by evidence that it was customary to dust, fields in the vicinity with snibstaac. poisonous .to. bess., that defendants gave him notice of their intention to dust the fields, that plaintiff ^wtuld neither move them nor confine them, that defendants used due care in dusting and waited until the vrtijid v&g blowing away from the hives,* and that the bees obtained the poison while trespassing away from the hives and carried it back with them..* 37 36Action, to recover damages for the death of plaintiff's bees from poison, known as "Cryolite 70," spread by an airjjilarie during crop* dusting operations on defendant's pepper fields. Plaintiff sued both the landowner and two codmteijcial applicators on the ground that the dust was permitted to float in the air about the field and upon surrounding^properties' and adjacent alfalfa fields so as to pollute the air and cause the property damage in question. ! SfiJ4, judgment for defendants on demurrer affirmed. It was not alleged that the dust settled upon the hives or upon the property of the plaintiff, bdt only that the bees came in contact with the dust while on defendants' property ajjmql property, of .others than plaintiff immediately adjacent thereto. This was not a sufficient basis upon wticlj to predicate liability. 37. m-rm v Vaughn, 224 $,yr, (2d),,365 (Ark.,. 1949) Action to recover for damage to plaintiffs' cotton crop caused by the defendant's dusting his rice crop with 2,4-D by $n'-airplane,-- When a,breeze aro^e, the dust drifted to the plaintiffs' farms which were located about a mile fpoauthe dusting operation. The evidence showed that the defendant knew of the dangerous nature of the dust and warned the.airplane pilot, but the latter continued his operations despite the breeze. Judgment was rendered 45 ainst the defendant and the manufacturer of the chemical. The defendant appealed contending that he should have ceived a directed verdict. The manufacturer made default and did not appeal. Held. affirmed. Although there was no absolute liability for this damage, the evidence was sufficient to ke the question of negligence to the jury since the defendant knew of the drifting properties of the dust. Action to recover for damage to plaintiff's cotton crop caused by the use by defendant. Elms Co., of a 4~D dust in spraying a rice crop on land owned by the Elms Co. The land was three-fourths of a mile from aintiff's crop. It was undisputed that particles of the 2,4-0 had drifted and caused the damage. The Elms Co. .led. a cross-complaint against theChapman.Chemical Company which was the distributor and sole agent of the man acturer of ths, product in Arkansas. The jury returned a verdict against the chemical company, but in favor of le defendant .Elms Co.,, and the chemical company I and plaintiff appealed. HgMj affirmed. (1) The4efdant Elias Coi could be held liable only if it could have foreseen the probaility. of injury Iran the use-of 2,4-D. The jury could: properly find, as to this defendant, that there was no reviews experience in the use of agricultural chemicals which gave any indication of the danger of using 2,4-0 3 a prop three-fourths of a mile away, (2] As to the chemical company, a different test of liability must be spiled. This test, one of absolute liability, was correctly set forth in the trial court's instruction to the ja-y as follows! f X # "It was the duty of the defendant Chapman Chemical Company before putting an inherently dangerous product on the market to make tests to determine whether or not it would damage crops of others; if you believe from a preponderance of the evidence in this case that the 2,4-0 dust applied on July 1, 1947, by the Elms Planting. Company was an inherently dangerous product liable to damage the- property of others, and that such tests were not made, then you are told that the defendant Chapman Chemical Company is negligent.'146 2b) Privity of contract between the chemical company and plaintiff was not necessary to recovery.470 *O*ne* *ju* s46tice iissented on the ground that the rule of absolute liability should not have been applied to the chemical company. his justice concluded! r "I think the manufacturer's duty should be that of making such tests as are reasonably necessary in the circumstances....It is shown that 2,4-D is harmless to narrow-leaved plants, but suppose for argument's sake that there is in the:world .one narrow-leaved plant that the dust will injure. Upon the majority's reasoning the Chemical Company would be liable for failing to test the dust on that particular plant, even though it may have made experiments with ten thousand other species. So as. to the drifting quality of the chemical, the proof shows that many agricultural dusts, have been widely used during a quarter of a century, yet none has ever before been known to drift mere than a few rods. 1 think the jury should have had the opportunity to decide whether th Chemical Company acted with ordinary prudence in assuming that 2,4-0 would float in the same way as other dusts."48 c 39. Kennedy.V_Clayton. 227_S,W. (2d) 934 (Ark.. 1950) Action to recover for damage to growing cotton through use by defendant of a pesticide, 2,4-D, on nearby realty. The chemical was applied by airplane and drifted over plaintiffs' crops. The jury returned a verdict for $4,460.78 on demands aggregating $14,727.23 and both parties appealed on the ground of various errors made by the court in instructing the jury. Held, affirmed, (l) The following instruction by the trial court to the jury summarized the applicable laws "If yqu find from a preponderance of the evidence that the.....(defendant) had, or in the exercise of ordinary ca#e:shduld have had, knowledge of sufficient facts to have caused an ordinarily prudent person, in the same, or 'Similar circumstances, to believe that the 2,4-D dust might reasonably be anticipated to damage the plaintiffs' 'Sotton, and that such.dust put out by them did in fact drift upon plaintiffs' cotton and damage the same, then your verdict should be for....(plaintiffs)." (2) A further instruction summarized the correct measure of damages to be applied by the jurys- "the actual cdsh value of each of such plaintiffs' crop at the time of its destruction,.....(with interest thereon from the date of the injury) at the rate of six percent per annum." 40.YoimacK v Farmers' Cooperative Association of New Jersey, 78 A. (2d) 421 (M.J.. 1951.) Action to recover damages for breach of the implied warranties of quality and fitness in the sale of an secticide by, defendant for use in plaintiff's Chicken roosts. At the trial, plaintiff testified that he asked the clerk in; defendant's store for "Black Leaf, 40" but that there was none on hand so a 5-gallon can of "ICC Carbolineum" was ,given instead. The can. did njot bear any label revealing the instructions for its use. Later plaintiff sprayed his coops with this material,. On the following day 50 chickens were found dead and some 357 died during the succeeding two weeks. The ramjaining, layers were sold at the best price obtainable. Defendant's clerk testified that the plaintiff specifically asked for a can of carbolineum; that there was no discussion con cerning its intended use; that the container bore a label. Other evidence was introduced showing that carbolineum ----------- ______i.............-............................ 46. Citing with approval Luthringer v Moore, 190 P. (2d) 1 supra and the Restatement of Torts, secs. 519, 523. It will 'be'inotttdji that the Chapman case was actually premised on the doctrine of negligence per se rather than the distinct .rationale of the Luthringer casei 47. Citing^acPriferson v: BUick Motor Co., 111 H.E. 1050 supra. and Carter v Yardley & Co., 64 N.E. (2d) 693 sugrg.. 48. TwO im^ortartjt procedural points were invoj.ved in this case, l.e., the sufficiency of the service on the chemical company .arid the propriety of joining) the chemical company as a co-defendant. The court held that service of 'pr|fe6as ,,iias, sufficient under the . statute providing that any non-resident doing business in Arkansas would be deemed tb havie appointed the Secretary of ^tate as Agent on whom process could be served in any action arising out of the'non-tesident,'s doing business within the state. The bringing of the chemical dusts into the state and making tests; tfcfre ..was '.cteaaed to constitute t)ie doing of business by the chemical company. Joinder was proper under the tJftifoaa Contribution Among Torifeasjors Act. 46 in-jr_ t has been commonly used as a standard marketable insecticide by poultry owners without harmful conlengthy span of years. There was evidence that if the skin of the chickens came in contact with i might be irritation, but there was no evidence that this contact could result in death. The jury plaintiff $2,500 damages. Held, reversed and remanded for a new trial. Although'the conflicting evidence was sufficier jury determination of the disputed questions of fact, nevertheless there was no evidence that the would or could cause the death of man or fowl. Moreover, in the admeasurement of damages, the jui festly influenced either by passion, sympathy, prejudice, or mistake." 41. Mallink v Pollard. 226 P. (2d) 69 (Cal.. 1951) Action by a distributor of insecticides against a farming co-partnership to recover an amount mercial insecticides Supplied for crop dusting. Defendants cross-complained, claiming that the ir chased from and applied by plaintiff had destroyed their crops. At the trial, plaintiff produced tomological evidence to show that the crop failure was dm to infestation by thrips and lack of me that these conditions; existed prior to the use of plaintiff's insecticides. Defendants claimed tf sides were harmful anfi were negligently applied by plaintiff and that either or both of these fact damage. Outstanding in their testimony was proof that a one-half acre plot of beans dry farmed or parable to at least pbrfc of the land on which the field crops were planted, produced at the rate c acre under conditions! similar in most material respects to the conditions affecting the field crop that the half acre pilot had not been dusted, with plaintiff's insecticides. This plot had also bee thrips, but the infestation had not prevented a fair crop. Held, judgment f!or plaintiff affirmed. The court said: "Appellants ' cause depended upon proof that the insecticides were harmful and were negliger. used and. that either or both of these factors caused the damage. On the other hand, respor attributed the crop failure to insects and drought and poor soil. That there was a crop fa was admitted. 1 Clearly, the insects and the lack of moisture could have caused the failure, may be conceded also that chemical insecticides, if wrongly selected and carelessly used, c the same. Under the evidence the court could have found either for or against the conflict theories." 42. Walton v Sherwin-Williams Co.. 191 F. (2d) 277 (Ark.. 1951) Action by a group of cotton farmers to recover for damages to their cotton crop sustained whe 2, 4-D mixed in an oil solution drifted from the rice fields where it was being applied by airplan ing rice farmers. Recovery was sought against the manufacturer of the 2, 4-D on the ground that h the product was dangerous when used in areas of mixed crops and on the ground that the product was tested and labeled. Interrogatories were submitted to the jury who found that 2, 4~D when used as was not inherently dangerous, that the product was reasonably pre-tested and adequately labeled, a farmers and pilots responsible for the spraying were negligent in applying the product. Judgment against the plaintiffs who appealed on the theory that under Chapman Chemical Co. v Taylor, supra. manufacturer was strictly liable. Held, judgment for defendant affirmed. (1) Since 2, 4-Ij) when used in liquid form could be used safely if the proper precautions were ing it, the'rule of Chapman Chemical Co. v Tavlor (involving 2, 4-D in dust form) was not applicab care was the proper standard to gauge the manufacturer's liability. (2) The negligertce of the applicators in applying the spray was the intervening cause of the therefore, a bar to suit against the manufacturer. 43. Action to recover damages for loss of honey bees and honey alleged to have resulted while the dusting their cotton crops by airplane. The manufacturer of the "R-H Dust" used and the pilot whe the defendants to spread the pesticide were made third party defendants under the Uniform Contribu feasors Act. There jwas evidence that the pilot flew over the plaintiffs' apiary and dusted the be with the dust. The jury found for the plaintiffs' in the sum of $1,500 against the pilot and the ploying him, but in favor of the manufacturer. The defendants appealed. Held, affirmed.' The evidence supported the verdict. The defendants who employed the pilot for his negligent ac|ts since the work performed was inherently dangerous. 44. Brown y.Sioux-Cijtv. 49 H.W. (2d) 853. Clfl^JLS5l) Action against h municipality for damages for the killing of plaintiff's bees and the loss of hiyes located at a Municipal airbase on an acreage rented by plaintiff from defendant. The damage the defendant sprayejd plaintiff's acreage with chlordane for grasshopper control. Recovery was sc ground that the defendant was negligent in failing to warn plaintiff of the spraying operations, sustained defendant's motion for judgment notwithstanding the verdict on the ground that the defen in a governmental capacity Held, reversed. The defendant was acting in a proprietary capacity in renting the property t and as such was responsible for its negligent conduct. 45. Bynum Cooperage Co. v Coulter.244 S.W,_ (2d) 955jArk.,...1952) Action to recCoOvVler damages for crop losses sustained by plaintiffs as the result of the spray: dant's rice with 2,i4-D from an airplane. The liquid spray drifted from the place of release ovei boring cotton crops I of plaintiffs. Recovery was sought on the ground that the spraying operation negligently. The j returned a verdict for plaintiffs, and defendant appealed on the ground of instruction, to the ury on the question of damages. This instruction permitted the jury to find i of the crop at the ime it was damaged, to consider its probable value at maturity, less the difff cost of production sed on a full or probable crop. Held. judgment|for plaintiffs affirmed. 47 (1952 supp.) 46. Heeb v Prysock. 245 S.W. (2d) 577 (Ark.. 1952) Action against rice grower to recover for damage to plaintiffs' cotton crops as a result of the use of 2,4-D by defendant. The damage occurred when the 2,4-0 drifted from the place of release over defendant's rice crop and settled upon the neighboring cotton crops of the plaintiffs. Plaintiffs contended that, the aviator employed by the defendant to do the spraying was negligent in applying the material in a manner in which the risk of drift would be Involved. Held, judgment for plaintiff affirmed. There was sufficient evidence that the aviator was negligent in doing the spraying and this negligence was binding upon the defendant who employed him. i 47. S0B-tIg8.sfeg^^ Action against telephone company and agent to recover for the loss of plaintiff's three cows as the result of the use of a 2,4-0 01*3.2,4,5-1 formulation by defendants. The loss occurred when the cows consumed grass upon which the material had been sprayed by defendants from a tank for the purpose of destroying vegetation under its telephone lines. Plaintiff contended that both the telephone company and the applicator were negligent in conducting the oper ation where a hazard to livestock would..he involved. Held, judgment for plaintiff .affirmed as to each defendant. 48. Monsanto Chemical Co. v American mtumul8jGg..^49--S.j!L. (2d) 428. (Mo,,. 1952) Action against a chemical manufacturer to recover for the loss of a quantity of powdered 2,4-D acid owned by plaintiff. Under a contractual:agreement, plaintiff supplied the defendant with the chemical for processing and conversion Into a liquid weed killer. The material was held at defendant's plant for plaintiff's account. A quantity was damaged or destroyed In a fire:on the defendant's premises. After the fire, plaintiff was compensated for the loss by its insurer, ftecowary was then'sought against the defendant for negligence. Defendant relied on a provision in the contract between the parties that "Monskito (plaintiff) agrees to carry adequate insurance to cover all stocks of materials held by:Gtt*Sp*ay (defendant) for! Monsanto's account" contending that this made the defendant a bene ficiary -of. the insurance, ttelcL judgment for defendant affirmed. The insurance provision in the contract was for the mutual benefit of the pasties and shifted the risk of loss to thp insurer. 49. Pgt.yi,,t(akpJ^aa-Eljd3S. Ssrateflu...3as,,, ,MJLA-gd,)_?.39, ,(N..P,f,,._!?&) Action against a commercial applicator foje damage to plaintiff's oats crop as a- result of the use of 2,4-D. Plaintiff employed the defendant to spray his drops. Plaintiff's evidence showed that the yield from the oats sprayed by defendant averaged 11 bushels per acre whereas an adjacent unsprayed plot averaged 53 bushels and that the sprayed oats war of much, poorer development and growth than the unsprayed oats. It was undisputed that the spray would not cause my damage to bat' or other grains when mixed and used according to the directions of the manufacturer and of the state agricultural extension service, Racjwery Was sought on the ground that the fields were negligently sprayed. After a verdict far plaintiff, defendant appealed on the grounds that there was no evidence of negligence and no com petent evidence as to 'the.':anoint of .damages. ; Heidf affirmed. .{1): The fact' -that .the spjray would not cause damage when properly mixed and used and yet did cause daws supports the inference that, defendant was negligent in the mixing or application. (2) There Was suffi cient evidence upon which to predicate damages since the: measure of damages in cases of this kind is the difference in value between the drop actually produced amjd that which would have been produced had the spray been effective. 48a so- Eseis_xJteiSiMteJa^h0^ Action against the federal government to recover for damage to plaintiffs' crops as a result of the use of 2,4-D by employees of the United States Fish and Wildlife Service. The damage occurred when the 2,4-D drifted from the place of release pvfflt.land .owned:fey .tee .federal! government and settled upon the nearby crops of the plaintiffs. Re covery was sought under^ the federal Tort Claims Act, 28 U.S.C.A. 1346 (b) which permits suits against the ttilted States "for inj^try or.loss nf property, or personal injury or death caused by the negligent or wrongful act or emission of any employee ;o. the government while acting within the scope of his office or employment, under circum stances where the Uttited States, if a private person, would be liable...." [feld. jiidg&ent ior defendant., fl) The decision to .conduct the spraying constituted the exercise of a discretion ary function within the ufeaning of the Federal} Tort. Claims Act, 28 U.S.C.A. 2680 (a) which expressly excepts such action from the seope^qf 'tlio Aot. (2) The affltgal spraying: was done in a careful and prudent manner and was similarly exempt under the provisions of 28 U.S.C.A. 26 (a). M. Mrs $JL*l&) .28g.iMg.tJt. Action against adjoining landowners for damage to a cotton farmer's crop resulting from the spraying of corn with 2,4-D. Recovery was sought on the ground thap the defendants negligently-used the spray at a time when a strong wind was present and as result -the:spray:drifted|frcm its place of release. The trial court gave judgment for defendants and plaintiff alppealed on the question of the isufficiency of the evidence to sustain the judgment. Held, reversed*. (1).There was evidence plowing that the spray caused some damage to plaintiff's crop contrary to the finding 'of the. trial court. (2) On tip question of damages the court stated the rule as followss "The. measureof dsstages '.for injury to dr partial destruction of a growing crop is the difference between the oxqprs value 'immediately 'before antt its value immediately after the injury; and that value is de termined by 'the maturity value of tip. probable crop but for destruction or injury, and by a deduction therefofraa of the: value Of the labor sap the expense which subsequent to its injury or destruction and but for it, Would have been required -fco mature, care for, and market the crop!" 48a. The trial court instructed the jury on the issue of damages --- "In arriving at such damages, if you come to that question, you will determine from the evidence the number of bushels of oats the plaintiff threshed from the two plots of land that were Sprayed, theft:you will determine from the evidence the additional number of bushels of oats that he would have Obtained'from the. two plots of land if the alleged injury had not occurred and you will determine from, the evidence the value of this additional number of bushels on the farm of the plaintiff as of the time of the alleged injury...," 47-1 (1952 Supp.) 52. Wilson v Geiav & Co.._73 S.E. (2d^ 487 (N.C.. 1952) Action against a chemical manufacturer to recover for damage to plaintiff's tobacco crop allegedly caused by benzene hexachloride dust emanating from defendant's insecticide plant. Held, judgment for defendant affirmed, on the ground that there was no evidence establishing a causal relation between the dust from defendant's plant and the injury to plaintiff's tobacco crop. 53. Smith v Okerson. 73 A..(2d) 657 Action against a potato grower by a dairy farmer for consequential damages resulting from the use of an arsenic solution. The solution used by the defendant on his crops drifted to plaintiff's adjoin ing pastures preventing the use of tljie pastures by plaintiff's cattle. Damages sought by plaintiff were for the special feeding costs wijiith. were made necessary through the temporary loss of the pastures for feeding purposes. A suit was-pending at the time of "the spraying involved in this action based on a prior spraying:operation by defendant which resulted in the death of some of plaintiff's cattle. The cattle had eaten grass contaminated with arsenic which had drifted. Held, judgment fox plaintiff. The court first rejected a contention that the defendantshould be held strictly liable under the theory of gylaads, v .Eletefair and ruled that the common law rules of negligence apply in crop spraying cafses. The court want on to find that the defendant was placed on notice of the t is It involved in spraying close to plaintiff's pastures by virtue of the prior incident and was, there fore, negligent in failing to take precautionary steps against a recurrence. 54. Kentucky~Aerosprav v Mays, 251. ft.W. (2d), 46Q jKy,1952) Action against a commercial aerial applicator by a minnow dealer for loss of minnows resulting from the use of toxapheras. The toxaphene used by the defendant in spraying a tobacco field drifted to plaintiffs adjoining land and settled In a pond containing a substantial number of minnows. All of the minnows were killed as. a result. Plaintiff had judgment in the trial court and defendantappealed on the ground, inter alia, that there was no proof that the spraying was conducted negligently. Held, judgment for plaintiff affirmed. The court dispensed with the contention that there was no negligence with this statements ". . . we must, hold .that,, if appellant allowed the chemical compound to fall1 and settle in the pond in the spraying, operation so that the minnows were poisoned, appellant was guilty of negligence." 55. Bowden v felted States. 20Q F ,(2d_) 176 (C.A, 4th. 19-52) Action against the United States Government by a sheep owner for loss of sheep resulting from the use of DDT sprays by the National Advisory Committee on Aeronautics. Plaintiff contended that some of his sheep died as a result of exposure to these government spraying operations. There'was no evidence that any of the sheep declared lost were ever in the vicinity of the spraying. HeldT judgment for defendant. The court held that there was no evidence that any sheep died as a result of the spraying and no evidence of negligence on the part of the United States. 56. Me3Mi_iX^iiabga^^ ,s .,&,t_l2dl-3S2-jaj^i22? Action against a railroad by a cotton grower for damage to cotton plants resulting from the use of 2,4-D by the railroad on its.right pf way adjacent to plaintiff's plants. The railroad contended that it had employed, an independent contractor to do tine spraying and that the contractor was solely re sponsible for the. damage. The jury ireturned a verdict of $1,750 against the railroad and an appeal .was taken. Helcl, affirmed. The court reaffirmed the well settled rule that the independent contractor doctrine does not relieve the principal from liability arising from the use of inherently dangerous materials. 57. ' Harris v United States. 205 F, (2d) 765 (C.A. 10th. 1953) On appeal from Harris v United States (case no. 50) held, affirmed. The court further held that the single spraying operation which was involved fell short of a taking within the meaning of the "just compensation clause" of the Fifth Amendment to the United States Constitution.* 58. ajMll.'.s.SSaefflicels, v.Dayku...^ Action against a chemical manufacturer by a cotton grower to recover damages to plaintiff's cotton crop caused by the use of 2,4-D on adjacent property. Recovery against the manufacturer was sought on the ground that the 2,4-0 was .sold to the applicator without sufficient warnings as to its drifting potential and harmful effects on cotton. At the trial, the manufacturer introduced in evidence copies of the label used on. the product which contained specific warnings against drifting and stated that cotton would.be injured by such drift. Held, judgment for plaintiff reversed. First, the court stated that the manufacturer was not sub ject to strict liability since the product was not shown to be "inherently dangerous". Second, the warning statement on the label was deemed to be adequate caution to the user of hazards connected with the use of the product. 59. BgdgrgaS-.-V_l,Qye_IaeeJ_.262...P,. (2d).231 (N. Mex.. 1953) Action against an adjoining landowner by a cotton grower for damage to plaintiff's cotton crop resulting from an aerial application of 2,4-D which drifted. There was evidence that the commercial . applicator employed by the defendant flew over plaintiff's land and emitted 2,4-D. Defendant defended on the grounds that (l) the applicator was an independent contractor whose negligent acts could not be attributable to defendant, and (2) the evidence as to the measure of damages was speculative. Held, judgment for plaintiff affirmed. First, the court followed the well-settled rule that in herently dangerous operations are not delegable so as to render the principal immune from liability under the independent contractor dottrine. Second, the court held that there was sufficient basis for 47-2 (1953 Supp.) a determination of damages in the evidence which showed a comparison between the produce from plain tiff's crop after damage and produce from other crops in the area which were not damaged. Action against a cotton grower by a cattle owner to recover damage for injury to plaintiff's . cattle and injunctive relief against further cotton dusting on defendant's adjacent ranch. Plaintiff contended that defendant's aerial dusting operations with DDT, BHC, and parathion drifted over to plaintiff's land, impregnated alfalfa used.as cattle feed, caused injury to cattle consuming the alfalfa, and caused personal injury to one of the ranch hands. Recovery was sought under the doctrine of absolute liability. Held, judgment for defendant and injunction denied. There was no evidence that the injuries com plained of were caused by the dusting Operations. The court indicated that the principle of absolute liability would haw applied if there Wire proof of harm proximately caused by the dusting. 61. Adams v Henning. 2.55 P. (2d)..456._(GM.,.^9_53) Action against a landowner by a potato farmer for damage to potato crops arising from the use of 2-,4-D by defendant on adjacent land. The evidence was conflicting on the nature and extent of the damage. The trial court granted a motion for nonsuit and plaintiff appealed. Held, reversed. The1 court indicated 'that the evidence as a whole predominated in favor of de fendant "but that there were sufficient:factual .questions involved to require the trial court to enter formal findings of facts instead of to1 dispose of the case as a matter of law. 62. George v Cox. 261 S.W, (2dl:20l (Tex., 1S33) Action against a commercial applicator by a cotton grower to recover for damage to plaintiff's cotton crop resulting from the use of a pesticide by defendant on adjoining property. Recovery was sought on the theory of trespass. At the trial, the defendant offered no evidence in defense. Held, judgment for plaintiff affirmed. The court in weighing the evidence emphasized in par ticular the failure of the defendant to offer any defense. (There was no finding of negligence on the part of the defendant -- probably because the'theory of action was trespass.) 63. fas^ch^iejnjxalj:^ v Leon. .259 K (2d)..301_..(Utah^_I953) Action against a grower by a chemical manufacturer for an unpaid bill incurred by the purchase of a pre-emergertqe: wed killer containing: oil. The grower counterclaimed alleging substantial damage to his onion crop by reason of the use of1the product. The onions damaged were beneath the surface of the earth at the time the product was applied to surface plants. Recovery was sought for breach of warranty on the ground that, the manufacturer's plant physiologist represented orally to the grower that the product, although destructiveto all plant life which it directly contacted, would not destroy plants under the soil. Held,, judgment against manufacturer affirmed. The court held that the manufacturer through its agent expressly and impliedly warranted the' safety of its product, which warranty was breached. 64. ) Action against a commercial applicator company, a distributor and a manufacturer by a cotton grower for damage to plaintiff's Cotton crop resulting from the use of a DDT solution. The manufac turer had sold the material to the distributor who, in turn, had sold it to the commercial applicator for mixing and use on plaintiff's cottCa. Recovery was sought on the ground that the material con tained a 2,4-D .(or derivative) contaminant due to negligent manufacture or application. Recovery was also sought for breach of implied warranty. The jury returned a verdict of over $12,000 against the manufacturer under instructions by the! court that res ipsa loquitur was applicable. He,Id. affirmed. The dbctrine of bps ipsa loquitur was properly applicable. With respect to the warranty count, the court hiald that privity between the manufacturer and grower was not essential since the cause of action was based on; the breach of a public duty.. Although the label on the container of the material sold by the) manufacturer contained a disclaimer against warranty liability, the court ruled this was not operative against the grower who never had the opportunity to see the container or label. 65. Pruett v Burr. 257 P, (2d) 690 fCfal.. 1953) Action against a grower, commercial applicator company and manufacturer by a cotton grower for damage to plaintiff's cotton crop resulting from the use of a DDT solution. The damage occurred when the material drifted from the place of release over land owned by the defendant grower and settled upon the nearby cotton crop of plaintiff. Recovery was sought on the ground that the material contained a 2,4-D (or derivative) contaminant dud to negligent manufacture or use. The only evidence bearing on contamination was contained in letters;and memoranda prepared by government officials who had made an investigation. The jury returned a vefdiet against the manufacturer under instructions by the court that res Ipsa loquitur was applicable. Held. reversed,, on the ground that the evidence showing contamination was hearsay and, therefore, was erroneously admitted. The. court stated, however, that res ipsa loquitur was properly applicable despite the fact that multiple defendants were involved. 66. Msian3han_v.--Californ:ia__$orav-Clitniieal Corporation. .75 S.E. _(2dj .712 jVa^__1953l Action against a fungicide manufacturer by apple growers to recover for damage to apple orchards owned by plaintiffs as a result of the j use of the fungicide. The damage occurred when the material was applied, ten days v.-i two weeks after th^ petal fall spray during a period of serious scab infection. The label on the product directed that: the material should be used up until petal fall and warned 47-3 (1953 Supp.) against use after petal fall to avoid a food residue problem. A disclaimer on the label purported to release the manufacturer from all liability arising from the use of the material. The action was initially brought on the common-law ground that the manufacturer failed to label the material with adequate warnings against use after petal fall, during certain temperature conditions and during periods of serious scab infection. The action was tried on a statutory basis. The trial court charged the jury that the Federal Insecticide, Fungicide and Rodenticide Act of 1947 and a counterpart Virginia statute required the manufacturer to place on the label'"a warning or caution statement which may be necessary and if compiled with adequate to prevent injury to living man and other vertebrate animals, vegetation, and useful invertebrate animals" and that a failure to do this constituted negligence per se. The specific question submitted to the jury was whether such a warning had bean given with respect td use during periods of serious scab infection. A jury verdict of $30,000 was. returned. This verdict was set aside by the trial court and judgment entered for de fendant on the ground that the label. <prx the product complied with federal and state law and the damage was caused by use after petal fall contrary to directions on the label, Plaintiffs appealed. Heldf judgment n.o.v. reversed arjid. verdict fox plaintiffs reinstated. (Two justices dissenting.) (1) The federal and applicable s^ate laws regulating the manufacture and sale Of pesticides were violated because the label on the. material in question failed to warn against the consequences of use after petal fall dtoeireg- periods of serious scab infection, the violation constituted negligence per se (2) The-ipFav:Lsi.as of such laws delating to directions for use and those relating to warnings are separate and serve distinct'pacposes. Warnings are to assure safe use -- directions to assure effec tive use. Therefore, it was no defense (in .a case involving a safety factor) that the material in question was not used in accordance with the manufacturer's directions. 48b/ 67. Paris v .Atwood Crop Action against a grower and a commercial applicator company by a cotton grower for damage to plaintiff's cotton crop resulting froija the use of a defoliant (asxeo cyanamide dust). The damage occurred when the defoliant drifted from the place of release over land owned by the defendant grower and settled upon the nearby cotton, crop of plaintiff. Recovery was sought on the ground of negligent application. The jury returned a verdict of over $13,000 in favor of plaintiff and defendants appealed. iJsM, affirmed. There was sufficient evidence that the defendants knew of the drifting potential of the material and that it was likely to damage cotton which was not ready for defoliation. 48b/ Numerous issues of first impression were presented in the case bearing on the application of the Federal Insecticide, Fungicide and Rodenticide Act and counterpart state law to civil product lia bility litigation. The opinion of the court should be referred to in this regard. Among the inter pretive questions involved were (a) the nature and scope of "labeling" as defined in these laws and (b) the meaning of the term "commonly recognized practice" as used in the misbranding sections of these laws. Other significant issues disposed of in the trial court but not discussed on appeal included the effect of registration and label approval by the government agencies responsible for administering and enforcing laws regulating the manufacture and sale of pesticides and the effect of a disclaimer provision on the label against liability. The trial court allowed evidence showing that the product ' in question was registered under applicable law but disallowed any proof as to the effect of such registration in determining compliance with labeling requirements. The disclaimer was allowed in evidence but the court refused to instruct the jury that this was a valid defense. 47-4 (1953 Supp.) Seiion_2. Product Liability Decisions Involving Fertilizers 1 Bml-VjaurjgJto^ 1.3...Kv. Law Rep. ALllIMI) Action to recover damages for breach of warranty in the sale of fertilizer by'the defendant dealer to plain tiff, Plaintiff made the purchase upon the faith of recommendations in circulars issued by defendant, which plaintiff had seen prior to the sale. At the time of the sale nothing was said by either party as to the value, character, or quality of the product. By reason of a latent defect in the fertilizer, plaintiff's crops were injured. Held. judgment for defendant. There was neither an express nor an implied warranty, and plaintiff could not recover for the injury to his crops, unless! it was caused by some defect known to defendant at the time of the sale, (abstract opinion)49 2- Swi,f|,,&.,<;p-,.,y Mppklhe^lp2_g.g. 138,IN,C,., 192P) Action to recover the purchase price of a quantity of fertilizer sold by plaintiff to defendant. Defendant counterclaimed for breach of warranty as to the quality of the fertilizer. Recovery on the counter-claim was sought on the basis of statements made by plaintiff's agent at the time of purchase that the product was "as good fertilizer as there was on the market." The trial court submitted the question of warranty to the jury. From a judgment for plaintiff, defendant appealed. Held. reversed. The language used by the agent constituted a warranty in law and the jury should have been so instructed. 3. 322-IMSj j -1920) Action to recover the purchase price of fertilizer sold to the defendant by the plaintiff manufacturer. De fendant contended that the fertilizer was inferior and its use damaged his potato crop and caused him to have a crop of inferior and unmarketable potatoes.: In support of this defense, defendant offered to prove that other fertilizer mixed to the same formula of the "4-6-10" sold by plaintiff, produced a marketable crop under similar soil conditions and methods of cultivation. The court ruled that this defense was insufficient and ordered judg ment for: plaintiff . Defendant excepted. Help)f exception overruled. The sale was for fertilizer of a 4-6-10 brand and imported no guaranty of suit ableness?, or results, the only warranty involved was one of guaranteed analysis and for this purpose defendant's evidence: was inadmissible to establish a breach. 4* S.S. 401 (S.C..-1921)50 Action against the defendant fertilizer manufacturer to recover damages for crop losses allegedly sustained as the result of the fertilizers' containing an appreciable quantity of borax. Plaintiff purchased the fertilizer direct from the defendant. The evidence showed that the fertilizer contained a deleterious quantity of borax and that whop plaintiff used it, serious crop losses resulted. The trial court directed a verdict for defendant and plaintiff, appealed. On appeal, defendant urged: (l) that the statute law of the state purporting to regulate the sale of fertilizers prescribed an exclusive remedy for plaintiff, (2) that the warranty of the defendant that it did not? guarantee results from the use of the fertilizer was exclusive of any implied warranty, (3) that the con tract ofr sale: limited the filing of a plain) to 10 days after receipt of goods, and (4) that the action was in tort and negligence was not proved. Hgijg,, .reversed, that the case should h ve been submitted to the jury. The court answered defendant's con tentions! as follows: (1) The statutory reme ly was cumulative and did not supersede the common law remedy; (2) the warranty did not by implication exclude the usual implied warranties; (3) the contract provision was contrary to -public policy : and void}. (4) the complaint ind proof sustained a cause of action on any one of three theories, i.e. action fox damages for.breach of contract d;ue to a failure of consideration, action for damages for the breach of the implied warranty of fitness of the goodjs sold, or an action in tort for negligence in supplying a fertilizer containing a deleterious ingredient. 49. Early decisions involving warranties in the sale of fertilizers include: (1) Mason v Chappell, 15 Grat. 572 (Va., 1860) (2) Walters v Croasdale & Co., 43 Ga. 204 (1871) (3) Radcliff v Gunby, 46 Ga. 464 (1371) (4) Sims v Howell, 49 Ga. 620 (1873) (5) Allen v Young, 62 Ga. 617 (1878) (6) Farrow v Andrews & Co., 69 Ala. 96 (1881) (7) Walker v Pue, 57 Md. 155 (1881) (8) Morris v Bradley Fertilizer Co., 64 Fed. 55 (C.C.A. 3rd, 1894) 50. Followed on similar facts in Willcox, Ives & Co. v Brazzell, 117 S.E. 203 (S.C., 1923) 48 (1952 Supp.) 5. Hubbard Fertilizer Co. of Baltimore City v American Trona Coro.. 120 Atl. 522 (McL, 1,923) Action to recover money expended by the plaintiff fertilizer company as damages resulting from the use of its fertilizer by customers. The alleged damage was occasioned by excessive borax in the muriate of potash sold by the defendant ingredient-supplier to the plaintiff. The evidence showed that the defendant knew that the potash purchased by plaintiff was to be used in the manufacture of chemical fertilizer. The purchase of the quantity in question was made by trade name, i,e.T Trona potash. Recovery was sought for breach of express and implied war ranties. Held. judgment for defendant affirmed, (l) Thera was no evidence of any breach of the express warranty that the percentage of; borax would not exceed a certain amount. (2) There was no implied warranty of fitness since the product was sold under its trade name (applying the uniform sales law). 6. Action to recover the purchase price of aquantity of fertilizer sold by plaintiff to defendant. Defendant defended on-the ground that the fertilizer proved worthless and that this constituted a breach of warranty. Held, judgment for defendant reversed on technical grounds. The court noted, however, that there was a war ranty of quality and fitness implied by law and a warranty required by statute that the commercial fertilizers were of the guaranteed analysis.. This warranty was not negated by a clause in the note, executed at the sale, that "the,consideration of this note is ccmmerjcial fertilizer sold....without any warranty as to results from its use, or otherwise."5^. 7- E.. P, Painter Fertilizer Co, v Kll-Tone Coj.. 143 Atl. 332 (N.J.. 1928) Action to recover damages for breach of warranty against a fertilizer manufacturer. The defendant sold the fertilizer to plaintiff dealer under the oral (representation that it would act as a destroyer of insects and as a stimulant to the growth and productiveness off tomato plants. Plaintiff resold the product to a third party under , the same representation. The third partjy used the product and it destroyed his tomato crop. Suit was brought against plaintiff and recovery was allowed. Plaintiff then sued defendant for the amount of this recovery. Held., judgment' for defendant affirmed, dije to the statute of limitations since plaintiff's cause of action accrued when defendant made the original representation (an implied warranty) and not when judgment was recovered against.it by a third party. 8. Buckley v Shell Chemical Co. ______ ________ _____________ Action to recover damages for breach of warranty against the retailer and the manufacturer of a fertilizer. Plaintiff contended that the retailer had made oral representations to him that the fertilizer bought would pro duce a large, crop of good quality potatoes whereas the potatoes actually produced were of an inferior quality. Recovery against both the retailer and the manufacturer was sought on the ground that the retailer was the manu facturer's agent. Thei order blank signed by plaintiff contained the following provisions "Because of weather hazards which affect the productiveness .and, dr, quality of growing crops, it is understood and agreed that.... (the retailer) shall not.be held responsible for productiveness and, ox, quality of the undersigned's crops." ifgM, judgment, fox both defendants affirmed. The written waiver of warranties in the order was a complete disclaimer".of'lfteiesciqusness and controlled .any inconsistent oral warranties. Since plaintiff attempted to impose liability on the manufacturer as the undisclosed principal of the retailer, the manufacturer could take advantage of the disclaimer. 9. Griffin v Taylor, la s .e . tzdi ib o tea Action to recover the purchase price of a quantity of fertilizer sold by the plaintiff dealer to the defen- dant. The buyer defended on the ground that the plaintiff had breached the implied warranty of fitness and had furnished fertilizer which was hardened into uraps and therefore worthless for use. The court instructed the jury that if the fertilizer was not deficieni in chemical analysis or ingredients as specified by the buyer, there was no breach of warranty. Instruct!< ware also given that the measure of damages for a breach of war- ranty is the difference between the contract ice and the actual value of the goods at the' time and place of delivery. The. court excluded evidence offer* by defendant to show the expenses incurred by him, consisting of land rent, labor,.plants, seed., in using the fertilizer and to show the value of the crops produced. The jury returned a verdict fox. plaintiff, and def< t appealed from an order denying a motion for a new trial, iMsb reversed, (l)The court erred in ex; essly excluding from the jury any consideration of the implied war-- ranty that the'fertilizer 'was suitable fqr ft rtilizing crops,512 as the instructions tended to confine the.jury to the consideration @f the statutory warrani ly that the fertilizer was of the represented chemical analysis, (2) The cburt properly excluded the evidence offered by defendant to show his net loss, since the failure of the defendant to make .a profit on the crops was oo remote to be the basis of damages for a breach of the warranty that the fertilizer'was reasonably suited t< the use intended. (3) The court erred, however, in instructing the jury as- to the measure of .damages since efendant should be allowed to recover such incidental damages as the expenses of hauling and distributing the wra Mess fertilizer. 51. The rationale of the opinion would seem ;to be that implied warranties of merchantability and fitness for use cannot be disclaimed. Compare this with a statement in an earlier North Carolina case, Carter v McGill, 89 S.E. 28 (1916)- that "....plaintiff, and others in;the fertilizer trade similarly situated, can protect themselves against too great a hazard in respect to the Toss of crops by a provision in their contracts to the effect that they are not to be liable for any results frdm the use of the fertilizer or for any loss of crops..." 52. Citing Wilcox, Gibbs & Co. v Hall, 53 Gd. 635 (1875) where it was said: "A seller of fertilizers warrants that the article is merchantable and reasonably suited to the use intended. He warrants that it is a manure, that it is reasonably suited for giving additional capacity to land to produce a crop...The seller does not warrant against the seasons, so that, if his fertiliser fails on account of the seasons, the purchaser is liable." 49 (1932 Supp.) 10. North American Fertilizer Co. v Combs. 212 S.VI. f2d 1 526 (Ky.. 1948) Action to recover damages for breach of warranty in the sale of fertilizer manufactured by defendant.^ Plain tiff had purchased the fertilizer from a dealer for the indicated purpose of using it as a field fertilizer in the growing of tobacco. The product designated as. "6-8-6" contained the proper parts of nitrogen, phosphoric acid and potash but the nitrogen component contained an excessive quantity of cyanamid and caused a total destruction of plain tiff's tobacco plants in the tobacco bed where. It was applied. There was evidence of a local custom to use "6-8-6" as a tobacco bed fertilizer,, but that defendant manufactured the product for field cultivation and sold another product, containing less cyanamid, for plant beds. Held, judgment for plaintiff reversed. (J) .There was no privity between the manufacturer and the defendant ex cept that springing from the express warranty that the product had the specified component parts and the further im plied warranty that the product was fit for this common usage of the ordinary fertilizer. Here the product was subjected to a special use.. (2).The provision! of the uniform sales act that "an implied warranty or condition as to the quality or fitness for a particular purposte may fee annexed.by the usage of trade" was not applicable, since this provision does not extend, beyond the seller soi as to include the manufacturer. 11. Cone y Viraloia-GaEolina ChemicaLC0SP-vJl34 Sq . & . .,, ,,t Action against a fertilizer dealer for personal injury sustained by plaintiff as a result of handling a commer cial fertilizer purchased from defendant. It was contended that the injury was caused by the sulphuric acid content. Recovery was sought art. .the ground that, the defendant .knew -the general custom of farmers to handle commercial fertilizer With their hands and yet failed, to. give notice! of the dangerous qualities of sulphate of ammonia which was contained in the fertilizer sold. Defendant relied upon the fact that it was a retailer and had purchased the product from the manufacturer upon a guaranteed analysis. At tjha trial, there was no proof of the analysis of the product in question and no. proof that. the-'daftebdant was a .oanufaccuser. Held, directed verdict for defendant affirmed. The plaintiff failed to prove that the defendant was a fertilizer manufacturer or had any knowledge of its baling dangerous or improperly prepared. The court stateds "A person who buys articles not constituting food, drink or medicine, to be taken internally, cannot hold the seller liable for injury if quoh articles were bought from a reputable manufacturer or dealer. A distinction must be borne in mind between those substances constituting food, drink or medicine:, to: be taken internally,: and those intended for use on external objects. A manufacturer of fertiliser is not under the same liability as a warrantor as those selling food-stuffs, drink or medicine, to be taken into the bodyt."53 54 53. The dealer was also sued but received a directed verdict. 54. Note that the court indicated that lack of privity would not have barred the plaintiff in this suit, if the fertilizer had been applied to its common use, i.e., in the field. 50 (1952 Supp.) Section 3. 1 * Thomas v Winchesterf 6 M.V. 39? (18521 Action to recover damages for personal injuries against a manufacturing druggist who negligently labeled and sold, as extract of dandelion, a jar of extract of belladonna. This poisonous compound was sold to a retail druggist as extract of dandelion, and the druggist bought it believing it was such. Plaintiff purchased the com pound from the retail druggist and administered it to his wife. Recovery was sought on the ground of negligence. Defendant/moved for a nonsuit on the ground that sines the defendant was the remote vendor of the article, and there was no privity .of contract, the action could not he maintained. Held, judgment:for plaintiff. The general requirement of privity established in Winterbottom v Wright does not apply to the sale of a poisonous drug in place of a harmless medicine, since this is an act "imminently dan gerous to human life." 2. Action to recover damages for the death of plaintiff's intestate caused by the drinking of oil of bitter almonds, a poisonous drug. The drug was;mistakenly sold to the plaintiff by defendant druggist instead of.oil of sweet almonds as: requested. Ho label;on the retail package indicated the contents. Held, judgment for plaintiff affirmed. The evidence established a sufficient cause of action in negligence. Privity of contract was not necessary. Action to recover damages for personal injuries sustained as a result of plaintiff's receiving and consuming sulphuric acid on an application to purchase sulphuric ether from defendant druggist. No label was on the bottle. ffejjJ, judgment for plaintiff affirmed. Defendant was liable under the common law and also negligent as a matter of law in violating the statute requiring poison labels on products such as sulphuric acid. 4. Action to recover damages for personal injuries sustained by plaintiff as a result of using a proprietary medicine manufactured' by the defendant. I Plaintiff made the purchase through a retail druggist. The evidence showed.that that plaintiff used th: medicine in accordance with the prescription accompanying it and that the quantity, thus'pxessribed and consumed byj plaintiff contained a harmful amount of iodide of potash. The defendant contended in defease that there was no privity of contract between the parties and that the drug'was not immi nently poisonous. Held. judgment for plaintiff affirmed. Since the manufacturer undertook to prescribe directions for the use of his product and the product whenjused as directed was injurious, he was liable irrespective of privity. 5. Bowes -V Rose. 42 W.E. 303_( 1^.-18553 Action against a retail druggist tb recover damages for personal injuries sustained by plaintiff as a re sult of taking a quantity of Tartaric acid sold by defendant as Rochelle salts. Defendant had purchased the medicine from1a reputable manufacturer vkth the label on the bottle reading "Rochelle salts." Recovery was sought on th ground of negligence. 'Held, judgment for plaintiff reversed. The mere sale of .a wrong drug does not establish a prima facie case.. Thereforej, there was no showing Of negligence by the defendant. (overruled in Knoefel v Atkins, 81 N.E. 600 find,, 1907) v i orbert Action against a druggist to recover damages for personal injuries sustained as a result of an explosion of phosphorus purchased by plaintiff from defendant. Pursuant to an order, the defendant had delivered three sticks of phosphorus to plaintiff. Plaintiff dropped one stick, which ignited, and, on his attempting to pick it up, caused the explosion of the remaining sticks in his hands. Recovery was sought on the ground that de fendant knew that plaintiff was uneducated and should have specifically warned him of the dangerous nature of phosphorus. Hejd, judgment for defendant. The article ordered was not such a new and unknown substance, with the dan gerous qualities of which the general pjublic, and therefore the plaintiff, was not acquainted, as to render de fendant negligent in selling it without! a specific warning. 7. test. 47 Ati,., 95.(,p JL2221) Action to recover damages for thhee deeath of plaintiff's daughter alleged to have been caused by a headache powder sold to her by defendant drugggiist. The druggist sold the drug in the manufacturer's sealed package.* 1 2 3 4 5 6 7 8 55. This case is usually regarded as the parent of the "dangerous instrumentality" doctrine. 56. Other early decisions involving negligence in the sale of drugs includes (1) Norton v Sewall, 106 Mass. 143 ;(1870) (2) Hansford's Adm'x. v Payne & CoJ, 74 Ky. 380 (1875) (3) Brown v Marshall, 11 N.W. 392 {Mich., 1882) (4) Walton v Booth, 34 La. Arm. 913 (1882) (5) Wohlfahrt v Beckert, 92 N.Y. 490 (1883) (6) Minner v Scherpick, 5 N.Y.S. Rept. 851 (N.Y., 1886) (7).Smith v Hays, 23 111. App. 244:(1887) (8) Brunswig v White, 8 S.W. 85 (Tex., 1888) 51 Held judgment of nonsuit in favor of defendant affirmed. The court stated the rule as follows: "In the sales of patent or proprietary medicines furnished by the compounder of the ingredients which compose them, the druggist is not required to analyze the contents of each bottle or package he receives. If he delivers to the consumer the article called for with the label of the proprietary or patentee upon it, he cannot be justly charged with negligence in so doing." " 8. Parks vScudders-Gale Grocer Co.. 130 S,W. 430 (Mo.. 1910) Action against defendant wholesaler to recover damages for the death of the plaintiff's intestate, a retailer. who used ginger extract containing wood alcohol fox medicinal purposes. The product was sold by defendant to plain tiff's intestate under the oral representation that the product was manufactured by him and was harmless. Recovery was sought on the theory of negligence. ; Held:, judgment for plaintiff affirmed, j Where a person selling an article represents to the purchaser that it is wholesome and safe, and it is proved that the article is a deadly poison, dangerous to human life, and that a person, relying upon the statement, purchases the article and uses it for the purposes for which it has been sold and is injured thereby, the seller is liable as a matter of law. 9Action to: recover damages for personal injuries sustained by plaintiff as the result of using a drug sold by the defendant. The-defendant sold the drug Ito a minor who, in turn, administered it to plaintiff. Recovery was sought on the ground that .defendant was negligent in selling a poisonous article to a minor. Hejd;. judgment for defendant. The sale by the druggist was not the proximate cause of the injury complained of. Ison v Faxon. Willtarns & Faxon. Action against a retail druggist to recover damages for personal injuries alleged to have been caused through taking a proprietary medicine sold to plaintiff by defendant under its own label. The label contained a statement that the medicine was "purely vegetable," art was orally represented to plaintiff by defendant's clerk at the time of purchase as being the same as another hai less -preparation. The medicine actually contained a mineral poison. Defendant contended that it had purchased this medicine from a reputable manufacturer and was justified in placing reliance upon its vendor that., the product |S: as represented. Heldj. judgment for. plaintiff. Neglige jtce may be predicated upon the evidence that the medicine contained a dangerous mineral, poison and that the defendant although representing itself to be the manufacturer and, therefore, presumably acquainted, with all the injtfediejits going to make up the medicinal preparation which it sold to the plaintiff, knew practically nothing.about the nature of the compound, and had taken no effective means to ascer tain the true (Character, thereof. The druggist, representing himself as the manufacturer became liable to the pur chaser to the same extent as the actual manufacturer would hkve been if the purchase had been made from him. 11- Wrlqhly.ttm., lSP,.PftOT, 956 Action to recover damages for the death of four horses and for injury to a fifth resulting from the consump tion of boiled.linseed oil purchased from defendant dealer. Plaintiff's employee had requested raw linseed oil which was a harmless remedy whereas the product furnished was deleterious when used for the purpose for which the oil was purchased.. Hejd, judgment for plaintiff affirmed.: The defendant was negligent in supplying a harmful substance instead of a harmless one. 12 Le_vln_y Maser. 194 W.W. 672 (Neb.. 19231 Action to recover damages for the death of plaintiff's intestate caused by .the consumption of oil of mirbane, a deadly poison. The poison was sold by the defendant drug-wholesaler to the defendant retailer who, in turn, sold it to the deceased without any label thereon, except the words "oil of mirbane." Death was caused when the deceased drank some of the oil of mirbane believing it to be a throat gargle. Recovery was sought against the re tailer arid the wholesaler on the ground that each was negligent in failing to label the bottle as a poison. Hejld, judgment sustaining demurrer in (favor of the defendant wholesaler affirmed. The complaint did not war rant this inference that the sale was the proximate cause of the death. 13. Krmk? .v.ftMTfaU, ffsv-js. a gg^, ij. . , 3L9a5) Action against a manufacturing chemist; to recover damages for personal injuries sustained by plaintiff as a result of treatment with defendant's medicinal preparation called "Camphor Solution Neutral." The drug was in jected into .the plaintiff's body by a physician. Plaintiff alleged that the preparation contained mineral oil instead pf vegetable or animal oil as advertised by defendant. Defendant demurred to the complaint on the ground mm,that there was no privity. The court sustained the demurrer and plaintiff appealed.. reversed. The cause of action Contained the elements of an action for fraud, in which the element of privity of contract is not essential., as well as an action for negligence, since defendant was engaging in a highly technical business affecting the health andj safety of the public. 14. Action to recover damages for injuries to plaintiff's poultry caused by the consumption of raw linseed oil. The oil was purchased from defendant retailj druggist in response to an order for cod liver oil. The retail drug gist had purchased the oil from the defendant wholesale druggist. Recovery was sought against both parties for negligence. Held, judgment for plaintiffs affirmed. The evidence supported a finding that both the wholesaler and the retailer; were negligent in supplying the wfong product to plaintiffs. The negligence of the retailer was not as a matter ef law an intervening and the sole proximate cause. 15. ash... Action against druggist to recover ages for personal injuries caused by the use of sodium fluoride. VC 52 Plaintiff lived in the home of the purchaser of the chemical and used it by mistake in place of salts. Recovery was sought on the ground that the sodium fluoride was not labeled as a poison. In the applicable poisons statute, sodium fluoride was not mentioned as one of the poisons requiring a label. Held, judgment for defendant. No common law duty was imposed on the defendant to label the sodium fluoride as a poison. When the purchaser made the purchase, she got what she desired and it was so labeled. She impliedly represented to the dealer that she knew its properties and uses and was a fit person to whom the sale could be made. Action to recover damages for tha death of plaintiff's husband caused by his consumption of strychnine pur chased from-the defendant druggist. The jdruggist sold the strychnine instead of quinine as requested. This was later consumed by, the deceased without reading the label on the bottle showing that it was poisonous strychnine. Plaintiff sued on the theory of common .lsjw. negligence and the .violation of the **'tute requiring the dispenser of poisons such as strychnine to satisfy hintself that the purchaser was aware of the poisonous character of the prep aration and that, it was to be used for legitimate purposes. The trial court directed a verdict for defendant. Held,, reversed. (!) The:violation 4f the statute was negligence per.-Sa and made a Brim facie case against tne defendant.(2) Blaintiff and her husband ware not guilty as a matter of law.of contributory negligence in failing to determine that the bottle delivered by defendant's clerk contained strychnine instead of quinine. ii. a3jalsiL3jiaixis3LJ2amJiiSES^^ Action:to recover damages for personal injuries resulting from plaintiff's taking three capsules of strych nine compounded by defendant druggist. Recovery was sought on the ground that defendant had failed to label the preparation "poison" as required by statute and. had filled the prescription without making any inquiry of the pur chaser. Held, judgment for plaintiff reversed. There was no evidence that the violation of the statute was the proxi mate cause of the injury complained of. IS. lEMfeaturl..a.Kata &.Be.stfaoff, 153 So, 16 .(La.,, 1934.) Action to recover damages for the death of plaintiff's demented daughter caused by the consumption of carbolic acid sold to the daughter by the defendant druggist. Plaintiff alleged that the defendant would have discovered the mental condition of the deceased if he had attempted to obtain from her the information required by statute to be entered in the register of sales of poisons 'and that this caused the resulting death. Held:, judgment lor defendant reversed. The complaint stated a cause of action. 19. Eekerd's. Inc, v McGhee. 86 S.W. (2d) 570 (Term.. 1935) Action against a druggist to recover damages for personal injuries sustained by plaintiff, a 15 year old girl. The defendant sold to plaintiff bichloride of mercury tablets and tincture of iodine in violation of the state statute prohibiting the sale of poisons to persons- under 16 years of age without a written order from a responsible adult. The plaintiff took the tablets ih a fit of despondency as the result of which she became seriously ill. Held, judgment fox defendant. Although the druggist was negligent as a matter of law in violating the statute, the plaintiff's act in taking: the tablets with knowledge of what she was doing, and the probable consequences thereof, was the proximate cause of her injuries. 20- HallPrtn v Parke. Davis & Co.. 280 N.Y.S. 58 (1935) Action to recover damages for the loss of sight of plaintiff's eye as the result of an explosion of a pharma ceutical preparation manufactured by' defendant. Recovery was sought on the ground that defendant was negligent in failing to give a warning of the dangerous character of the preparation and proper directions for use. Held, judgment for plaintiff affirmed, (memorandum opinion) 21. Action by the administratrix of a young child against the manufacturer of bicarbonate of soda for negligence causing death. Sodium fluoride was found in the can containing the soda about three weeks after the death. Held., judgment for plaintiff affirmed (without opinion). One judge dissented on the ground that the verdict was against the weight of the evidence as no sOdium fluoride was discovered in autopsy. 22. j 3^ . Action to recover damages for personal injuries sustained by plaintiff when defendant druggist misinterpreted a prescription: and: delivered poisonous bichloride of. mercury pills. The individual pills bore the word "poison" in small letters, but the container did (tot, contrary to statute. The container did show the printed words "fox external use chiy." Hisld. jcdgme-tt for plaintiff affirmed, (l) The defendant was negligent in failing to plainly mark the con tainer with such warnings as were required by law. (2) The plaintiff was not negligent in not noticing the small warnings on th|e tablets themselves and ih not noticing that the box bore the inscription "for external use only," in vie# of tHe( fact that he had been fold by his physician to take the tablets internally and the fact that the box contained the typewritten inscription "two at bedtime, as directed." 23 Haaagd y jgcgbaLPtepnadY CqJ>JJ,9.ls*E, 1237) _. . Action against a retail druggist to recover for personal injuries sustained as a result of using a patent medicine sold toy the druggist to plaintiff. The medicine was allegedly old, deleterious and unfit-for use. BgMj, :j4?sent for defendant, sustained. There was no duty on the part of the druggist to open and inspect the sealed cap .canjteining the powder in question. The retailer owes to the consumer the duty to supply goods packed by reliable manufacturers. Action to recover damages for personal injuries sustained by plaintiff as a result of using a compound con- 53 taining a slight amount of mercury to which plaintiff was allergic. The defendant druggist furnished this compound instead of calamine lotion with phenol as prescribed by the doctor and per the formula in the National Formulary. Later the druggist assured plaintiff's doctor that the compound did not contain mercury. SiaM judgment for plaintiff affirmed. The acts of the druggist constituted an actionable misrepresentation in tort. 25. Bennett Drug Stores v MoseW. 20 S.E. (2d) 208 (Ga.. 1942) Action against a druggist to recover damages for the death of plaintiff's husband allegedly resulting from the sale of carbolic acid to the husband while jie was intoxicated. The husband drank the poison and died. Held. judgment for plaintiff affirmed. Since the sale was made to an intoxicated person, it was in violation of the statute prohibiting the sale of carbolic acid "unless upon due inquiry it shall be found that the person to whom it. shall be delivered shall be aware of its poisonous character, and shall represent that it is to be used for a legitimate' purpose." Such a 'Statutory violation was negligence SSE .. and it was no defense that the voir notary drunkenness of the deceased was the proximate cause of his death since the doctrine of "last clear chance" applied. 26. Dumbrow v Ettlnoer. 44 F. Suoo. 763 1942) Action to recover damages for breach of warranty in the sale of a liver extract by the defendant, a retail druggist. The drug was purchased from the defendant by the plaintiff's son and caused illness to the plaintiff when she consumed it. H$ld. defendant's motion for summary judgment granted. There was no privity between the plaintiff and the defendant, and therefor there could be no [recovery in warranty. 27. Esncjerson v National Drug Co,. 23 A. (fed) 743 (Pa.. 1942) Action against a drug company to ree damages for personal injuries allegedly caused by liver concentrate purchased by the plaintiff's doctor from defendant. The evidence showed that other persons had been made ill by the injection of liver concentrate sed from defendant. There was no evidence that the drug contained an Irritant. Held. judgment for defendant. There S insufficient showing that the product in question caused the injury complained of. The court stated! "If tho who make and compound drugs and medicines in packages or bottles, under the Strict conditions prescribed by National Food and Drug Act....and the Public Health Service Act.... for use by the public, can be mulcted in ges every time seme person uses such drugs or medicines with harmful results, the making and selling of such pn itets would be a most pecuniarily hazardous enterprise. That a lower- ing of the standard of proof in such cases would open the door to colossal fraud is obvious." 28 Sings* v Qken. e? N.y.s. (2d) 686 (n .v JJ42) Action to recover damages for personal injuries sustained by plaintiff as the result of using a preparation consisting of calamine lotion .and on per c ent phenol purchased from the defendant druggist. Witnesses for the defendant testified at the-trial that such lotion was not irritant and that it was in general use in the medical profession. The evidence showed that plain tiff was allergic to calamine containing phenol, Wd, judgment fox defendant. The del endant was not negligent in selling such a product since he had no reason, to apprehend that it would prove haijavful to one person among a multitude of users. 29. JS_&_U_ Action to recover damages for breach of warranty in the sale of a salt substitute, Westal, by the defendant druggist to plaintiff's intestate. The retjail druggist answered that the wholesale dealer who sold him the drug should be mad a co-defendant if he was 11 le to the plaintiff, since he would have recourse against the whole sales, for breach, of his implied warranty t the article was fit for human consumption, Held, the retailer had the tight to intain a cross-action against the wholesaler. Under the rule in Slmspn v American Oi 1 [Co. T 8 S.E. (2d) 81; supra, the plaintiff could have maintained the action directly against the wholesaler.. Furthermore, the principl Is established in North Carolina that where the wholesaler has sold to a retail deals for resale personal proi , with implied warranty of fitness for the use for which it was purchased and sold, .and the retail dealer ti^js sold to a customer with the same warranty, and for breach of this warranty has been by judgment compelled to pay the retail dealer may thereafter in turn maintain action against the wholesaler for the entire loss sustain*! 30* h, T-.rTT-r-T ^ - -ir ir-- Tin"irV^nr- Action fey an .administratrix against ) State of New York for wrongful death and for pain and suffering re suiting from homologous serum jaundice con^ sted after a transfusion of pooled blood plasma distributed by the State. The transfusion was ordered , by a pi ysician. Recovery was sought on the ground that the State was negli- gent in failing to .affix a warning label tt the plasma carton. MsM> complaint dismissed. There is distinction between selling a medical preparation to the public, who may have no knowledge of the dangers aitc.. apt upon its use, and making available a preparation to a hospital at its request, Whose physicians may be expeci dd to have knowledge of the dangers involved in utilizing the thera- peutic preparation ordered by them. The c* Ste at bar fell within the principle that there is no duty to give warn- ing to the members of a profession against generally known risks. 31. Ipscany y_IL_S,.Standard ProdHo.tS-Ca4-^3 s-w- (2t^ 207 (Tex. ...1551) Action to recover damages for personal injuries sustained by plaintiff's wife as a result of her self-injecting by hypddensic! needle a drug known as estroiehie hormones, manufactured by the defendant. Recovery was sought on 5 the grounds of negligence and breach of warranty. There was no evidence that the defendant had negligently manu- "V factur^d the drug or that the drug was dangerous. The court entered judgment for defendant and the plaintiff on appeal urged the application of the res ippa loquitur doctrine. 1 Held, judgment for defendant affirmed. There was no evidence that the drug contained any im purities,, and, on the other hand, there was the inference that the conduct of the plaintiff's wife caused the resulting injury. Res ipsa loquitur was inapplicable since the cause of the injury was in question and the thing which did cause the injury was not in the exclusive control of defendant. Action by the personal representative of a deceased person for wrongful'death against a retail druggist. The druggist sold the deceased a drug "Westsal," as a salt substitute, which resulted in death. Recovery was sought on the ground of a breach of the implied warranty of fitness. Held, judgment for defendant. Ijne personal representative of a deceased person does not have a cause of action for the death of such person based upon an implied warranty, since the applicable wrongful death statute applies to tort actions but not to contract actions. 33. lebb. v....S.and.QZ...Chemical..Works,. A.5-E,.. (2d!.: 689 .(Ga,.,. 1952) Action against a manufacturer to recover for personal injury to plaintiff's wife as a result of consuming a patent medicine manufactured by defendant. The medicine "Cafergone" contained ergotamine tartrate and caffeine,, Plaintiff contended that the drug was dangerous when used as directed and that it was not adequately labeled with a (warning statement and directions for use. The drug was labeled "to bo dispensed: only by ox on the prescription of a physician" and the directions contained the pre caution that it "Should be taken undeir medical supervision," Held, judgment for defendant affp, ed. The caution statement on the label made it clear that the drug was for use: only, by or On the pr ascription of a physician and not for indiscriminate use by the 'Public S.E. 118 (Ga,.'1889) is distinguishable on this point. 34. Randall,v Goodrlch-Gamble Co.. C.C.H. 22. 279 (Minn.. 1952) Action against manufacturer to recover for personal injury sustained by plaintiff as a result of using a liniment manufactured by defendant. The liniment was purchased from a retail dealer. Re covery was sought on the ground of breach of warranty. The warranty relied upon was a statement on the label of the product reading "For! Man add Beast...Follow directions carefully and you will be rewarded with good results." Defendant contended that privity was lacking, that there was no ex press-warranty, and that .there was no reliance on. any warranty at the time of sale. Meld, judgment for plaintiff affirmed! (1) A subvendee may recover against a manufacturer regardless of privity where an expresi warranty is involved; (2) The label statement constituted an express .warranty that the product wasjnot harmful to human skin when used as directed; (3) Since the use of the product resulted in personal injury, the question was whether there was reliance on the warranty at the time of use not at thg time of sale. 35. R^daJJ^:xJ3Q.0dr,i,ch-SambLe,.,Ca. 54 S.W. (2d) 769 (Minn.. 1952) reversing C.C.H. 22 . 279 (1952) On rehearing of the decision reported in C.C.H. 22, 279, the court reversed and granted a new trial on the ground that' the trial court's instructions to the jury relating to the theory of ex press ^warranties wax ambiguous. The court affirmed the law of the case that in the sale of drugs or foods, an express warranty may extend to an ultimate consumer if the warranty in the first instance induces the purchase and the usage is consistent with the purpose for which the product was purchased in reliance on the warranty. 37. EaHtzmann v Jamas. 66 S. (2d) 36 jfFla.. 1953) Action against a druggist for personal injury allegedly resulting from the consumption of a medicine intended only for external ude. Plaintiff contended that defendant had mislabeled the drug and that.this .negligence caused a pepfic ulcer. In a prior action between the parties, plaintiff had contended that her injury resulted from mental pain attendant upon discovery that the drug had been mislabeled. Recovery was denied in this prior action on the ground that the negligence of the druggist was hot the proximate cause df the particular injury alleged -- that is, mental anguish. ifeilj complaint dismissed on the ground of res judicata. The court held that the adverse judg ment of the first suit was based upon the same set of facts which formed the basis of the second suit. 38. 22.350 .(.111,. 1954) Action against a pharmaceutical manufacturer by a drug company to recover amounts paid by the drug company in an. unsuccessful defense.of an action by a consumer based upon the misbranding of a drug. The drug sold under a prescription was sulfamerazine instead of the sulfauxadine ordered. The . evidence .was conflicting as to whether! the error was one of the drug company in filling the prescrip tion or tine pharmaceutical manufactured in supplying the drug to the company. .HfiMj jt49ent for defendant. Plaintiff failed to establish that the misbranding was'done by defendant it was more probable that! there was an error by the plaintiff's clerk in filling the prescription. 55 (1953 Supp.) Section 4. Product Liahi1itv Decisions Involving Cosmetics and Soap 1. Hasbrouck v Armour & Co.. 121 1M.W. 1.57 (Wis,. 1909) Action to recover damages for personal injuries sustained as the result of using a bar of toilet soap in which was embedded a needle. The plaintiff purchaser joined both the retailer and the manufacturer of the soap as de fendants. Recovery was sought on the ground of negligence in marketing an adulterated product. Held, order sustaining demurrers affilmed. There was no actionable negligence shown since the manufacturer and the dealer did not know or have reason to know of the needle's being in the soap. The resulting injury was so extraordinary as to be unforeseeable. 2* el Action to recover for damage to plaintiff's vessel sustained as the result of an explosion of soap which was being transported on the vessel. The sohp was manufactured and shipped by the defendant. The explosion resulted from naptha, fianes given off by the soap ^rora its confined, place of stowage. Recovery was sought on the ground that defendant negligently failed to war(i plaintiff of the dangerous properties of the soap and the likelihood of an explosion whert confined. There was evidence that prior to shipment defendant's agent had advised plaintiff of the hazard -and had recommended stowage in a ventilated place. Held. judgment for defendant affirmed. The evidence supported the finding that sufficient warning was given. 3. Armstrong Packing Go., v Clem. 151 S.W. 576 (Tex.. 1912) Action to recover damages for personal injuries sustained by plaintiff's wife as the result of using laundry soap which allegedly contained a poisonojjs or deleterious substance. The injury occurred to her .hands as she was cleaning clothes with the soap. The product was manufactured by defendant and sold by him to a jobber; the jobber sold it to a retail dealer and the plaintiff's wife purchased it from the latter. Recovery was sought on the ground that defendant had Improperly sappnified the soap and was therefore negligent. Held. ,judgment for plaintiff affirm(ed. The evidence sufficiently showed that the defendant failed to use care in the preparation of this particular prpduct. Privity of contract between the manufacturer and the plaintiff was not necessary since the latter was the intended user.4 4* Action to recover damages for personal injuries sustained by plaintiff while using a bar of soap in which a needle had become embedded. The purchases of the soap was made from defendant, a retail dealer. Held-f' directed verdict for defendant affirmed. There was no proof of actionable negligence. In support of the decision, the .court s?id: "There is nothing inherently dangerous in a bar of soap; and it does not appear how or when the needle became embedded in iti, or that the defendant knew of its presence before delivering it to the plaintiff or could have' known of it by tpe exercise of reasonable diligence. Whether it came there during the process of manufacture or afterwards is wholly a matter of conjecture." 5* Karr V loecto. Inc.. 160 N.E. 398 ( 1228) Action to recover damages for pers opal injuries to plaintiff allegedly caused by hair dye manufactured by defendant and sold to plaintiff, a beaut shop operator. The injury occurred when plaintiff used the product on the hair of a customer and seme of the d ye stained her finger. Twelve hours later her finger was red and painful. Recovery was sought on the ground that the injury was caused by an inherently dangerous substance in the product. Helfi, judgment for plaintiff reversed. There was insufficient evidence to justify a finding that the injury resulted, froo .contact with the product factored by defendant or that the chemical product was inherently dan- gerous or: poisonous. The court stated? Before the plaintiff may recover she must show, first, that the injury to the finger resulted from, contact wit the chemical product manufactured by the defendant; second, that the chemical product was inherently dangero and poisonous; and, third, that the defendant was negligent in putting upon the market a dangerous and poisono product." 6. _____ _____ ______ Action to recover damages for persdial injuries sustained by plaintiff while having a "water wave" in a hair dressing establishment. Plaintiff was burned when an attendant in the establishment put eight or ten combs in her hair and .was drying it with hot air fro an electric dryer when the combs took fire. The combs were composed principally, pf ipyrpjcylln, a compound, of cellulose and nitric-acid. There was testimony that as a matter of common knowledge,:pyroxylin was highly infla pie. The hairdresser, the dealer and the manufacturer of the combs were joined as defendants;. .A verdict .was ret led In favor of the defendant hairdresser and for the plaintiff as to the dealer and manufac.t.u..r.er. . T_ he _la__tt_e. . appealed. Held, affirmed, (1) As to the dealer--the jury could have found that the dealer knew of the dangerous char acter of itfee.combs when heat was applied to them and yet failed to warn the plaintiff. (2) As to the manufac turer*--thejury, could have found that tpe manufacturer should have anticipated the dealer's failure to warn an ultimate usei of the cotolos and yet failed to label the combs or otherwise disclose their dangerous character. ^Hfa.-3!-Benlia.la....S-.isKav .Co. .. 192 N.fi, .631. (Mass.., 19.3.4) Action in warranty to recover damages for personal injuries sustained by plaintiff from the use of a pro prietary article used for hair removal. I Various purchases of the product were made by the plaintiff by trade name* but at:.the 'time at the first purchiase only, defendant's employee stated that the product was safe and harm less.. The;use of the product resulted iln peripheral neuritis caused by the large amount of thallium acetate present, the evidence showed that; the amount of thallium present could affect the system of a normal person but not to the>extent.'found in:the 'plaintiff, the effect in her case being accentuated by abnormal endocrine glands. The case .was'heard without a jury, and ijhe court awarded damages of $8,500 in favor of plaintiff. 56 (1952 Supp.) Held, reversed, (l) The only warranty made was the express warranty made by defendant's employee at the time of the first sale and this did not cover the subsequent sales. As to subsequent sales, no express warranties were made and no implied warranties of fitness for use arose since the sales were made, by trade name. (2) The fact that plaintiff was allergic would not have precluded recovery if a warranty were made, however, since it was shown that the product might affect a normal person. 8. Guvton v S. H. Kress & Co.. 5 S.E. (2d) 295. .(S.C,, .1935) Action to recover damages for personal injuries sustained by plaintiff when a small bottle of fingernail polish, purchased from defendant, exploded. Plaintiff sued on the theory that the defendant was negligent in selling a substance having'inflammable and explosive tendencies without giving warning of its dangerous character, and with out furnishing directions for its use irt a proper and safe manner. Held, judgment for defendant affirmed. There was no showing that the defendant had actual knowledge of any dangerous nature of the product sold and under the circumstances, he had no reason to have such knowledge. 9. BimlaLxjagaiiai&JUMax^ Action for breach of warranty and negligence57 5t8o59re6c0over damages for injuries to plaintiff's skin caused by using'a face porter purchased from the defendant. There was evidence that a rash, diagnosed.as dermatitis, appear ed on the plaintiffs face, shortly after she applied the face powder, which contained two aniline dyes. Plaintiff's skin was allergic to these dyes. Although .the evidence showed that such dyes do not irritate the average person, there was evidence that "seme" people w^re allergic. JjaM, judgment for plaintiff.. The 'sale of the product raised an implied warranty of fitness which defendant breached, notwithstanding the fact that the product was fit for use by the average person. 10. madaflL&piiro. Inc,, v grown,, IP7 Si- ,,(?c0 933 tift...,iaaa) Action to recover damages for personal injuries sustained by plaintiff after using a cosmetic product manufac tured by one' defendant and retailed by t,he co-defendant. The plaintiff in making the purchase requested a suntan oil but was given another, liquid:preparation instead. After using this product, the plaintiff suffered kidney in juries attributable to anilin dye poisoning. The evidence did not show,' however, that the toilet preparation in question contained anilin dye. Held,. judgment for plaintiff reversed. (1) The retailer was not liable, since a retailer is not responsible for the harmful effects. of a patent medicine which he did not prepare. 8 (2) The manufacturer was not liable, since the evidence failed to show that the product contained any harmful ingredients which caused the injury complained of. 11Action to recover damages for personal injuries sustained by plaintiff as the result of an application of a hair dye manufactured and sold by the defendant to beauty shops for treatment of patrons. Recovery was sought on the ground of negligence in marketing a dangerous product. The defense was based on the fact that the manufacturer had issued instructions: in the use of hijs product to the .operator in the beauty shops. Held, judgment dismissing the complaint reversed. Whether the issuance of instructions by defendant to the beauty shop operators constituted reasonable care .in the light of the alleged fact that the product was a poison ous and inherently dangerous preparation! presented a question of fact for the jury.59 .12 Action. i:o recover damages for breach of warranty in the sale of a toilet preparation, known as "Pinaud's '612' Creamy Mascara," by defendant to plaintiff. Plaintiff charged that the defendant expressly warranted that this preparation was harmless and free from any poisonous substances and was fit for the purpose of coloring and black ening her eyelashes,, whereas its use caused a serious eye injury. The express warranty was alleged to have been mfide by defendant's .clerk, who stated-, after the purchase was made, that the product was harmless. There was evi dence: that 'plaintiff had used the product for ten or twelve years. The trial court overruled defendant's motion for a. directed verdict and defendant appealed. Held, reversed. Sine the -alleged Warranty was made after the sale of the product had been made and since plaintiff had used the product before, the essential element of reliance on the warranty was lacking. 13* Action to recover damages for personal injuries sustained by plaintiff while using a tube of depilatory cream manufactured by defendant. The injury occurred when the cream squirted into plaintiff's eyes as she was puncturing the metal sieal over the'-mouth of the tube Containing the cream. The tube was punctured in accordance with the di rections shown on the-tube. Recovery wa$j sought on the ground that defendant was negligent in the preparation of a cream possessing known dangerous properties (calcium sulphide), in packing the tube for sale without instructions as to the dare necessary in its use, and Lin the manner in which the cream was injected into the tube. The jury returned a verdict in favpr of defendant:under instructions by the court that the plaintiff had the burden of prov ing freedom fro*' contributory: negligence;.. Held;, judgment for difendant reversed. The court's instruction to the jury with respect to contributory neg ligence was in error since the defendant!had the burden of this proof. 57. The trial! court ruled that there was no evidence of negligence. 58. Relying oh West v Baanuel, 47 Atl. 965, supra. 59. Compare, Petzold v Roux Laboratories, Inc., 11 N.Y.S. (2d) 565 (1939) (certain instructions by manufacturer of poisonous dye to beautician held immaterial.) 60. Applying Pennsylvania law. 57 14. v The Beniamin Ansefti Co. s.i. I2d) 751 IMo .. Action for the death of plaintiff's child as a result of his pouring highly inflammable fingernail polish remover on his clothes and touching a lighted match thereto. The product was harmless to the human skin when used as a polish remover, but contained inflammable ingredients which rendered it dangerous when exposed to fire. Held, judgment for plaintiffs reversed. The manufacturer of a product which is perfectly harmless when used as intended is not liable to one not the purchaser of the product if such person makes a use of the product never intended or expected by the manufacturer. Therefore, there was no violation of the duty of the manufacturer to label the product to show its highly inflammable nature.61 62 rg* Action by an employee against an employer for personal injuries sustained. The employee developed a derma titis allegedly due to the use of a soap powder in carrying out his duties as a dishwasher. The soap had a base of trisodium:-phosphate. Medical testimony -showed that the employes was allergic and that this was a cannon situa tion knom to the trade. HfiM, judgment for plaintiff. The jury could have found that the defendant knew or ought to have known that the soap powder was a possible source of danger to a class of persons of whan the plaintiff might be one. The court stated* "It is not necessary that the majority of possible employees be susceptible. It is enough if a sufficient number are susceptible so that a jury could reasonably say that the defendant ought to have known and recognised the danger of injury and ought to have guarded against it." (citing Bianchi v Denholm & McKay Co.|, supra) 16. Graham v Jordan Marsh Company 67 M.E, i(2d) 404 (Mass.. 19461 Action in warranty to recover damages ifor personal injuries sustained by plaintiff from the use of cold cream purchased by her from the defendant. (Recovery was sought on the ground that defendant at the time of pur chase represented that the product would be [beneficial for her dry skin. After using it, plaintiff's face be came burned and swollen. There was testimony to the effect that plaintiff's skin was super-sensitive. The trial court directed a verdict for defendant and-plaintiff appealed. Hel^. reversed. There was. sufficient evidence that there was a breach of express warranty as well as the implied warranty of fitness .fox use. 17. Cartier v Yardlev & Co.. 64 M.E. (2d) fids (Mass.. 1946) Action against a perfume manufacturer ito recover damages for personal injuries sustained by plaintiff. There was evidence that plaintiff suffered a secomjd degree burn when she applied the perfume to her skin. There was also the testimony of witnesses who had used the perfume from the same bottle and suffered; skin injury. In answer to interrogatories, the defendant declared that it did not know all the ingredients of the perfume, nor the pro portion of the several ingredients. Plaintiff purchased the perfune from a retail dealer. The trial court, after a jury verdict for plaintiff, entered judgment for defendant on the ground that there was no privity. Halujyrwfers-ad. .The absence of contractual relationship between the manufacturer and the purchaser did not in itself preclude recovery. Nor was the plaintiff required to prove that a majority of consumers would be in juriously! affected, as it would be sufficierjit if a sufficient number were susceptible so that a jury could rea sonably sby that the;defendant ought to havd known and recognized the danger of injury.63 64In overruling prior Massachusetts decisions iwfaictt had refused to follow the doctrinee of MacPherson v Buick_Motor Co., supra. the court startedi "The doctiine of the MacPherson case is now generally accepted, (citing texts and literature) Its acceptance has; brought all dangerous things (into the same class as the 'inherently dangerous' things to which the principle .albeady sti^edl has always been applied. The MacPherson case caused the exception to swallow the asserted general, xlule of bo b1 liability,, leaving nothing upon which that rule could operate. Wherever that case is accepted, that rule! in tfcuth is abolished, and ceases |to be part of the law." 18. Esi<llLJL-UQ^^ Action to recover damages for breach warranty in the sale of lipstick by the defendant dealer to the plaintiff. The use of the lipstick result in a skin infection. Recovery was.sought on the theory of a breach of the. implied! jterrahty of fitness. Defe nt contended that the plaintiff was allergic and that if the product did contain:poisonous ingredients the defe ant, being a dealer, did not have knowledge of this. ;jniigKent' for plaintiff affixmed| (1) The fact that only a small proportion of users would suffer In- juries be Sttee-of the use of the lipstick did not absolve the seller from liability under the implied warranty created % thaittntfoxa Sales ;Aet .Otherwise9, in every action for the breach of an implied warranty, it would be necessary td show!that the article sold would be injurious to every user. (2) The contention that the defendant was not dhaygast swtth; knowledge*of the poisonous nature of the product since it was merely the vendor was not valid since' th6 salels act is in general terns and! there is no sound reason for engrafting an exception on the general rule. lar v Bouriois. Inc_________________________________ Action to recover damages fox the loss of plaintiff's finger resulting from infection caused by pricking her finger on d box of .cosmetics manufactured by defendant. The manufacturer of the cosmetics impleaded the manufac turer of the container. ! 61. The weight given to the fact that the child was not the actual purchaser is not apparent in the opinion. 62. The court noted, however, that privity would be necessary to support a claim based on warranty. 63. Evidence that others received similar injuries from the article would be admissible to negate the probability of causation through a particular allergy.- ! 64. Applying Maryland law. e_ 58 Held, judgment for plaintiff reversed. Under Maryland law, no recovery may be had against manufacturers for injuries caused to third persons with whom they have no direct dealings unless they are manufacturers of ar ticles which in themselves are imminently1 and inherently dangerous when defectively made. A decorated cosmetics container may not be deemed an article imminently or inherently dangerous. 20 Free v Slues. 197 P. (2dl 854 (Oi.. 1943) Action to recover damages for breach of warranty against both the wholesaler and manufacturer of a new soap product. The plaintiff, a retail grocery1 dealer, had purchased one quantity of the product and it proved satis factory but the second purchase was unmerchantable. The manufacturer admitted that he had manufactured the prod uct which constituted the second sale witjhout some of the necessary ingredients. The packages containing the product contained a guarantee of quality [reading: "If Frederick's granulated soap does not meet-with your entire approval your dealer .will cheerfully refufnd the full purchase price upon return of the unused .portion,...Frederick Soap Co..." At the time of sale, the wholesaler told the plaintiff that the soap furnished was the "same soap as that previously supplied," Held, .judgment for defendants reversed and judgment directed to be entered for plaintiff, (l) The oral representations made by the defendant wholesaler at the time of sale constituted an express warranty of quality. (2) In holding the manufacturer also liable, the court stated: "....the 'guarantee of quality' printed upon each package of soap reached, beyond the dealerjs to persons in the position of plaintiffs. It establishes the manufac turer's knowledge and intention that the poods should move through the usual.channels of trade, and was a repre sentation addressed tip those who would depl in its product. It was under no obligation to make the guarantee, but having made it, it does not lie in itjs mouth to repudiate it when the condition of complete unsuitability for the market brings the guarantee Into play!."65 21. BlE.lga&jiLJfetiaaa3^lPda3tjies... _2Ql_gj_l2dI_iio_(aljj--IMS) Action to recover damages for personal injuries sustained by plaintiff as the result of the use of a cold wave preparation manufactured by defendant. Some of the solution came in contact with plaintiff's face causing severe1 dermatitis. Recovery was sought op the ground that the preparation contained a chemical toxic known as thioglycolljte and that defendant negligently failed to warn the public that great care should be taken in the application, of. the product. The evidence! showed that the plaintiff was allergic and that the product had not proved, uns.afe to.others. | Held, Judgment for defendant affirmed. There was no evidence of knowledge on the part of the manufacturer of the.dangerous character of the product!, no evidence that many persons were susceptible to the product, and no evidence of prior instances of skin initiation caused by the product. 22. Pietrus v J,, R. Watkins Co.. 38 N.W.t (2d) 799 (Minn.. 1949) Action to recover damages for the ljoss of hair allegedly resulting from the use of a shampoo manufactured by defendant. The product was sold to plaintiff by defendant's agent, the label indicating that its intended use was as a hair shampoo. Plaintiff sued on thei theory of breach of implied warranty in that the product contained an excessive alkali content unfit for use asj a. hair shampoo. There was no evidence as to the contents of the par ticular bottle used and no chemical: analysis thereof. There was evidence showing that prior to the action de fendant had been changed with a violation! of the pure food and drug act and had been ordered to withdraw a quantity of the1 product from the market. The jury returned a verdict for $20,000 in favor of plaintiff. Hjlict,:affirmed,. (1) The evidence ijeassonably supported a finding that the bottle purchased by plaintiff came from a, quantity which contained an unsafe alkali content, and that this was the proximate cause of the resulting loss of hair. :(2) Irt actions based, on brleach of an implied warranty of fitness in cases involving sale of de fective drugs or foods, it is unnecessary to allege or prove that the manufacturer had actual knowledge of the contents thereof. 23. J. R. Batkins Co. v. Raymond. 184 F. j(2d) 925 (Minn.. 1950) Action to recover damages for personal injuries to plaintiff allegedly resulting from the use of shampoo manufactured by defendant. Following the completion of a shampoo, plaintiff had a sensation of burning on the forehead and scalp. Later she lost her Hair, eyebrows and eyelashes. Plaintiff alleged that the shampoo was care lessly, .negligently and improperly compounded by defendant and contained poisonous and injurious materials and chemicals, Causing it to be imminently dangerous and harmful to health. At the trial, dermatologists stated that plaintiff !:s: condition, as: described by her was not and could not have been caused by defendant's shampoo. The jury returned a verdict of $27,000 in favor of plaintiff and defendant appealed. Held, reversed and remanded with directions to dismiss the action. There was no substantial evidence sus taining the vital claim that the defendant's shampoo contained poisonous chemicals or showing a causal connection between the use of the shampoo and the resulting injury.66 24 MMBb^LiMiatOEies_v_Bnerv.Industries. 95 F. Supp. 651 ...(Pa^i.95,1.) _ Action to recover damages for breach of warranty in the sale of a soap ingredient. Plaintiff based his claim on an alleged warranty made by defendant's salesman that the oleic acid known as 0-442 sold by the defendant chemical manufacturer to plaintiff for usje in the manufacture of its pine jelly soap was the same as the oleic acid known as 0-20 previously sold and t! it it would give satisfactory results whereas it caused a separation of plaintiff's soap rer-ccriuc it unmarketab Je. Mo formal complaint was made to defendant of any dissatisfaction with his product until about six months after the first purchase by plaintiff.65 66 65. It will be noted that the manufacturer's liability was actually premised on estoppel rather than warranty. 66. The court followed De Vsre v Parten, 23 N.W. (2dj 564 infra and distinguished Pietrus v J. R. Watkins Co., iiiliara. The coprt stated: that in the Pietrus case it was shown that all of the shampoo made by defendant during the period in question had been condemned; by the Federal Food and Drug Administration because of its ingredients and it was in evidence that defendant had! used some of the shampoo that had been thus condemned. 59 (1952 Supp.) Held, judgment for defendant. (1) No warranty express or implied was given by defendant that the type of oleic acid furnished was the same as that previously furnished or that it would make satisfactory pine jelly soap when used in a formula which plaintiff admitted defendant did not know. (2) The cause of separation of plaintiff's soap was not the titre value of or any defect in type of oleic acid furnished by defendant seller to buyer. (3) When the buyer discovered or should have discovered what it claimed was a breach of warranty it failed to give to seller the prompt notice required by the Pennsylvania sales act. Action by a beauty operator to recover damages against the distributor of a permanent wave lotion and fixa tive for dermatitis resulting from the use of the distributor's products. The lotion containing ammonium thiogly- collate, .an ingredient-canaon to most cold wave solutions .end ordinarily harmless was used along with a powder fixative containing' potassium-broaiate,,.:.&lso ordinarily harmless. It was shewn that ammoniaa thioglycollate pro duced a reaction In but: one allergic woman ini 1300Q using it. .Recovery was sought on the ground that defendant was negligent, in distributing without warning! a product unfit for the use for which it was intended arid containing irritants- dang-eraas':tO'^users. I jjgld:, judgment for- defendant affirmed, the evidence did not establish that defendant should have foreseen plaintiff's injury. In discussing the question of allergies, the court stated: "We are sympathetic with appellant and her misfortune, but cannot require the merchant to assume the role of. absolute insurer against physiological idiosyncrasy. To do so also would invest the elusive ordinary prudent, man with a quality of foreseeability that would take him out of character completely. Every substance, including- food which is daily consumed by the public, occasionally Becomes anathema to-him peculiarly allergic to it. To require insurability against such an un foreseeable'; happenstance would weaken the structure of ccnenon sense, as well as present an un reasonable burden on the channels of trade." 26. Felp v Bonetti, 111 H,Y.S. (2d) 840 (195^ Action by a beauty parlor operator against the wholesaler, distributor and manufacturer of a hair dye to recover an amount paid to a customer for personal injpry resulting frem an application of the dye. In an original negligence action, the operator was sued successfully byI the customer and settled a $5,000 verdict for $3,500. The recovery-over action for this s u e was then brought against the three suppliers. The latter defended on the ground that the operator was negligent in applying the dye in a- mannerjwhich was not recommended. Held, judgment -for1plaintiff affirmed. The issue of contributory negligence on the part of the operator was properly left to the jury as a question of fap-t. 27. Action against retail druggist to recover for personal injury sustained by plaintiff as a result of using a cos metic bleaching cream sold by the defendant. Plaintiff purchased the cream after being assured by a cosmetician of the store, that it was suitable for bleaching skin. Two applications resulted in a rash and residual scars. Recovery was sought for breach of warranty., Defendant contended that a,retail vendor of an article of merchandise in common and general use is not liable to a'customer for injuries caused by seme latent defect in the article. The jury re turned a Verdict -of- $400 and defendantmoved for a new trial and judgment n.o.v. Helda affirmed. The.rule contended for by defendant has no applicability in warranty actions. A retailer is liable in: a warranty action where the facts of the case establish that the buyer made known the purpose for which the article was required, relied, upon -the seller'^ skill and judgment, and suffered injury because the article bought was not fit for the: purpose - for which it was soldi 28 Cora.. C.C.H. 22. 632. .(1952) Action against an insurance carrier to r [cover for personal injury sustained by plaintiff as a result of using a Toni home .permanent set. The insurer of the ifacturer of the set was sued directly under a state statute purporting to allow direct actions:against insurance Les. Heidi; action dismissed. The statute [invalid to the extent that it operated against a foreign insurer under a policy executed1 in another state containing usual "no action" clause. 29. Hjgbee v Gj^nt..E0Pd Shoppingj^nter.: 106 F.-Supp. 586 (Va.. 1952) Action against the manufacturer and'ret: ler of a permanent wave preparation to recover for the temporary loss of plaintiff's hair as a result of using the -pr< uCt. There was evidence that the injury was caused by an excess of an alkali in the preparation. Recovery was1 sou. .t against the manufacturer on the ground of negligence and against the retailer for farfeach of an implied Warranty of olesemeness. The retailer relied primarily upon the fact that the sale was of an original and sealed package wh: was neither inspected, recommended or warranted by the retailer. The jury awarded $4^000 .damages. Held, judgment affirmed but damages reduced to $1,500. In imposing an implied warranty upon the retailer, the court stiateds : "To say there is no dependence of the bjuyer upon the retailer if the subject of the sale is a sealed product of another, is to ignore the most potent factor of every trader's success -- the confidence and reliance of the public in him. Further, the retailer is not a mere conduit or an automaton in delivering products. of another; h awes'an obligation to his buyer. He is paid for assuming that obligation, While he cannot know what is in the package, neither can the buyer, and it is the seller who has brought the.injurious article to the buyer. Moreover, the seller has recourse against the producer, and is- generally better enabled to enforce such recoupment than is the consumer to obtain recovery of'the'manufacturer. Public policy requires that the buyer be allowed to seek reimbursement from -the retailer." 67. But if, after acceptance of the goods, thfe buyer fails to give notice to the seller of the breach of any promise or warranty, withirl a reasonable time after thfe buyer knows or ought to know of such breach, the seller shall not be liable therefore." 60 (1952. Supp.) 30. Woriev v Procter & Gamble Mfq. Co.r 953 S.W. (9d) 532 (Mo.. 1952^ Action against the manufacturer of a dishwashing detergent for injury to the hands of a user of the product. The injury occurred while the product was being used for dishwashing purposes. Recovery was sought for breach of implied warranty. No showing was made that the product contained any sub stance harmful to the skin of a normal person. The manufacturer defended on the grounds that privity between the parties was lacking since the product was purchased through a middleman. It was also con tended' that the injury was due to ah allergy. Held, judgment for defendant. The court held that privity between the parties was not necessary since'the product was labeled "kind to hands". This statement constituted an express warranty running from the manufacturer to an ultimate consumer. However, the court went on to hold that there was no proof that the product contained a harmful ingredient and, therefore, it was a matter of speculation, whether the product of the manufacturer or an allergy of the user caused the injury complained of. 31. Action against a beauty parlor [operator for injury sustained by a customer as a result of the application of a hair cream. The operator impleaded the supplier and the manufacturer of the cream as thirdi-party defendants for breach of warranty and negligence. Held, complaint of the operator against the supplier and the manufacturer dismissed. The operator failed to prove that the product was inherently.dangerous or that the supplier or manufacturer was negligent (citing Karr v IneCto, 160,PE. 398). A dissent took the view, that this supplier was subject to liability for breach of warranty and the manufacturer for negligence under the doctrine of res ipsa loquitur. 32. On appeal of the decision 'reported In 118 N.Y.S. (2d) 785 (1952) (case No. 31), held, reversed. The jury was justified in finding against the distributor for breach of warranty and against the manufacturer for negligence. 33. aafer,,v.Barbier^25g,,J,WA-C2dl 461., (KV-, 1953) Action against a beautician and beauty salon owner by a patron to recover damages for facial burns allegedly sustained while the customer's eyebrows were being dyed. Recovery was sought on the ground of negligence. At the trial, evidence was produced showing the injury but there was no attempt to show the chemical contents of the dye. ifeM. judgment for defendants affirmed. The court held that there was no proof that the dye contained any harmful ingredient which dould have produced the injury. 34. .S.sm.liag_y.,Raux Distributing..ci,,... 59 N.W. (2d) 907 (Minn.. 1953) Action against a hair dye distributor for personal injuries sustained by a purchaser as a result of using a hair dye. Recovery was sejught for breach of warranty. The purchaser had used the dye on prior occasions without injury after [being given an initial patch test as directed on the label. On the occasion in question, the dye was] used for retouching purposes and no patch test was given. The crucial issue at the trial was whether this patch test should have been giveij. Instructions accompany ing the product entitled "The Prelimi|nary or Patch Test" warned that there were people allergic to its use and that a patch test should be gjiven "before contacting or using" and "before every application". A portion of the instructions which related specifically to retouching made no reference to patch tests. The trial court construed thesis instructions as not requiring a patch test for retouching pur poses. Accordingly liability .was. imposed on the basis of inadequate directions for use. Held, jhdsnsot for plaintiff affirmed. The court stated with respect to the interpretation placed bn the directions for use oh tpe labeling; The court's determination that the instructions did not require a patch test prior to a retouching -- having in1 mind the rule which requires construction against the one whet chose the words used -- is sufficiently sustained by the evidence. If a patch test was to1 be required before a retouching, it should have been a simple matter to so state in clear language. Also involved in this case was the question whether or not a seller or manufacturer is liable for injuries resulting to one who is allergic. The court indicated that this question did not have to be determined since "defendant had warranted the dye to be safe if used in accordance with the instruc tions and . . . plaintiff, having so used the particular bottle involved herein, nevertheless was in jured," 35. Frier, y .Rcocter & Gamble. Distributing Co.. 252 P, (2d) 850 (Kan.. 1953) Action against the manufacturer ajnd distributor of a dishwashing detergent for injury to the hands of a user of the product. The injury occurred while the product was being used for dishwashing purposes. Recovery was sought for breach of implied warranty. The manufacturer and distributor de fended on the ground that privity between the parties was lacking. Held, judgment for defendants, ort the ground that privity of contract was lacking. 36. Reed V Swift 8. Co.. C.C.K, 22.322 (Mo.. 1953) Motion to dismiss a complaint alleging breach of warranty in the sale of a detergent by a manu facturer through a middleman to defendant consumer. Held, motion denied. Although the court indicated that Frier v Procter & Gamble Distributing Co.. 252 P. (2d) 850. was a basis for dismissing the action for breach of warranty, the court allowed the plaintiff to amend the complaint and proceed on a negligence theory. 60-1 (1953 Supp.) 37. Krupar v Procter & Gamble Co.- 117 N.E. (2d) 7 (Ohio. 1954) reversing 113 N.E. (2d) 605 ('Ohio lqs.ql Action against a soap manufacturer for personal injury sustained by a user of one of its bar soaps. The injury occurred because of a piece: of wire which was imbedded in the soap. Recovery was sought for breach of implied warranty and for nagjligence. The manufacturer defended on the ground that no negli gence on its part .was shown and on the! further ground that privity between the parties was lacking since the soap in question had been purchased through a retail dealer. The. court charged the jury under res ipsa loquitur. The jury returned a verdict for plaintiff. Heltj, judgment for plaintiff reversed and judgment entered for defendant. The court held the doctrine of res ipsa loquitur did not apply since the soap was not within the exclusive control and management of the defendant. 38. Hardy v Procter & Gamble, C.C.H. &2.340 (C,A. ,5th,. 19.54) Action against a detergent manufacturer to recover for loss of sight allegedly caused by the use of a detergent manufactured and distributed by defendant. The injury arose when some of the deter gent got into plaintiff's eyes as she Was using it while washihg surgical instruments in the course of her employment as a nurse. Recovery was sought on the grounds of breach of warranty and negligence in failing; to warn of dangers inherent in the detergent's coming into contact with the human eye. Medical testimony was-conflicting as to whether the sodium lauryl sulphate in the detergent was deleterious to the eye. The trial court directed a verdict for defendant and plaintiff appealed. Held, judgment reversed. On the evidence considered as a whole, the court held that a jury could have found for Bother side; therefore,!the case should have been submitted to the jury rather than being disposed of by the court as a matter of law. 67A. The Court of Appeals in 113 N.E. (2d) 605 (1953) as a part of its decision held that privity of contract was not necessary since the product was manufactured for the use of ultimate consumers and not for the use of middlemen. This point was not discussed in the opinion of the Supreme Court of Ohio. 60-2 (1953 Supp.) JL. Product Liability Decisions Involving Household and Industrial Chemicals Action to recover for personal injuries and property damage sustained by plaintiff as the result of an ex plosion of naphtha manufactured by defendants. The product was sold by defendants to a retail dealer as oil. The retailer resold it to plaintiff for illuminating purposes. While the plaintiff was using it in a lamp for this purpose, it ignited and exploded, burning and injuring his body and property. A statute prohibited the sale of naphtha under the name of oil and impos|sd civil liability in favor of any person suffering damage as a result of an illegal sale, the trial court directed a verdict for defendant and plaintiff excepted. IfeMs exception sustained. Defendant violated a duty under the common law and under the statute. The court stated! "....It is; well settled that a man who delivers an article, which he knows to be dangerous or noxious, to another person, without notice of its nkture and qualities, is liable,for any injury which may reasonably be contaapiated as iilEely to result, and which doss in fact result, therefrom, to that person or any other, who is not himself in fault.'TM 2. (Ky . ...1891) Action to recover damages for personal injuries sustained by plaintiff, a train conductor, from an explosion of naphtha shipped by defendant. The explosion occurred when plaintiff used a lantern near the drums of naphtha for the purpose, of determining whether the drims were leaking. Recovery was sought on the ground that defendant was negligent in merely labeling the drum "unsafe for illuminating purposes" and designating the product on the bill of lading as "carbon oil" Instead of naphtha. Defendant contended, in part, that the shipment was made in that manner pursuant to an agreement with the carrier, and that the latter as plaintiff's employer had the duty to warn that the product shipped: was dangerous when used or handled near heat. The jury returned a verdict of $25,000 in favor of* plaintiff for the Idas of the us of on arm, permanent facial disfigurement and other injuries .feist;,.; reversed: -on the ground that the damages awarded were excessive. However, the court in affirming the finding of negligence stated: "There was an implied, if not a positive, duty on the part of both corporations to notify those WhC handled this1 substartce of its dangerous character, and no arrangement between them, ... by which dynajjuite was to be shipped- as powder or naphtha as carbon oil, should protect the appellant from a viola- tion of this duty it owed to the' .... employees whose duty it was to keep it secure, and to handle it when neces sary.'^ 3Action to recover damages for personal injuries sustained by plaintiff as the result of an explosion of a substance in a bottle manufactured by defendant under the name of "Champagne cider." Plaintiff was an employee of this actual purchaser of the preparation. Recovery was sought on the ground that the bottle contained no label warning of the dangerous contents. Held. judgment for defendant on demurrer reversed. The court stated: "One who sells and delivers to another an article intrinsically dangerous to human life or health, such as a poison, an explosive, or the like, knowing it to be such, without notice to the purchaser that it is intrinsically dangerous, is responsible to any person who is, without fault on his part injured1thereby." 4- Co.. 102 N.W. 793.(Iowa, 1905) Action to recover damages for the death of plaintiff's son caused by the consumption of sulfuric acid sold by defendant. The poison had been sold by defendant in a jug to a creamery and there consumed by the deceased who thought it was:,buttermilk. The jug was hot'labeled "poison" as required by statute. : judgment for plaintiff affirmied. The violation of the statute by defendant was negligence per se and the jpry could properly find that this, rather .than any intervening negligence of the creamery, was the proximate cause1 of the resulting death. Action to recover damages for personal injuries occasioned by the inflammable nature of a compound that plain tiff was using to polish a gas rahge. The manufacturer was the principal defendant; the product was purchased through a retailer. Plaintiff alleged that, the defendant knowing the inflammable nature of his product deceitfully sold it without any warning of the danger involved in its use. Held, a cause of action was stated.! The complaint charged deceit and for this form of action, privity of contract between'manufacturer and purchaser was not necessary. The manufacturer failed to warn of the dangerous character of the product as he was requited to do. 6 2Mfe_lL_&rthLir,;_J, ..Rosenbluth & Co..; 71 Atl. 566 (Conn., 1908) Action against the manufacturer of a liquid mixture called "Stoveline" to recover damages for the death of plaintiffs' intestate Caused when the mixture ignited and set fire to the intestate's clothing as she was applying it on a stove. The 'mixture, consisting of benzine, oils,-turpentine and japan contained no label on the container showing its inflammability although there were detailed directions for use "on all iron work." Plaintiff sued on the theory that the defendant was negligent in failing to warn purchasers of the dangerous character of the prep aration, . ijsM judgment for plaintiff affirmed. The deceased was warranted in using the preparation on a stove due to the representations on the label that it could be used "on all iron work" and, therefore, the defendant had a duty to warn that the fumes of benzine contained in the preparation, mixing with air, were liable to fora a highly explosive mixture which, would explode whkn brought in contact with a flame.68 68. Followed in Hourigan v Nowell, 110 Mass. 470 (1872) l 61 7. Cunningham, v C..R. Pease House Furnishing Co.. 69 Atl. 120 (M.H.. 1908) Action to recover damages for personal injuries sustained by plaintiff as the result of an explosion of stove blacking, containing naphtha, purchased by plaintiff's mother from the defendant dealer. The explosion occurred when plaintiff used some of the blacking on a hot stove. At the time of the sale, defendant's employee had orally assured plaintiff's mother that the product could be used on warm stoves. After a judgment for plaintiff, defen dant appealed on the ground that there was no liability for a false statement of fact honestly believed to be true. Held,, affirmed. A reasonable dealer in defendant's position would not have made such a representation without knowledge of its accuracy. Therefore, liability accrued by reason of a false representation of fact negligently made. 8. Peterson v Standard Oil Co.r 106 Pac. 337 (Ore. 19101 Action to recover damages for the death df plaintiff's intestate caused by an explosion of kerosene manufac tured by defendant. The explosion occurred while the intestate was attempting to kindle a fire with the product. The product was sold to the intestate by a retailer. The manufacturer had labeled the drum "Water White Oil" and to the effect that the distillate would not bdrn under, 120 degrees Fahrenheit, whereas it would (and did) explode at a comparatively low temperature. Plaintiff sued on the theory that defendant negligently labeled the drum and that this was the proximate cause of-the- resulting injury, and that defendant violated the statute requiring proper cautionary labels for gasoline and distillates. Held, judgment for plaintiff affirmed, ijhe violation of the statute constituted negligence per se.69 9. EaaaJ^S=aH,lM^ .Po, V Math's, nP--LKYj.' ,1911? Action to recover damages for the death df plaintiff's intestate sustained as a result of an explosion of a dryer containing linseed oil, turpentine, and jnsphtha. The explosion occurred when the deceased held a lighted candle near to the liquid when it was being poured. The evidence showed that the dryer was not explosive or in flammable unless brought if* contact with a lighted flame. The dryer was a standard product in general use and in accordance with the custom of industry was labeled only with a trade-name. Plaintiff sued the defendant, a whole saler, on the the&ry of negligence din failing to label the.product so as to show its dangerous properties. &el,d. judgment for plaintiff reversed. There was no evidence that the defendant wholesaler knew that the dryer was an -explosive or :an. imminently dangerous article of trade (assuming). The court distinguished the lia bility of the dealer and the1 manufacturer in s(ich cases as follows: "....the dealer who purchases and sells! an article in common and general use in the usual course of trade: and business, without knowledge of its dangerous qualities, is not under a duty to ex ercise ordinary care to discover whethejr it is dangerous: or not.....The merchant or dealer can only be made responsible in damages to a party who has no contractual relations with him when the ar ticle is: imminently or.inherently dangerous in the ordinary use for which it was intended or the use to which it may reasonably be expected the article will be put or applied, and when with knowledge of this fact he sells or putsj it on the market without giving notice to the purchaser of its dangerous quality, or- when he represents the thing as being safe for the use intended, when, in fact,.it' is not.....But there is and should be a difference between the liability of the manufacturer and: the liability of the dealer in this: class of cases. The manufacturer should be arid is held to- a. higher degree of cape than the dealejr in putting on the market dangerous com pounds, because he knows- or should be ckargedwith noticje of the quality and contents of the ar ticle that he manufacturesi and, being the originator of: it, should be required to give notice of the danger in its use, if it is dangerous." 10. tiatelv v Taylor, v/ m.e . 613 t.Mas Action to recover damages for the death of plaintiff's intestate caused by an explosion of stove polish which occurred while deceased was applying it on a hpated stove. The polish contained naphtha but was not labeled to show this. .By statute the: sal of naphtha undfcr an assumed name was prohibited. Heldf judgment for plaintiff affirmed. Tljie defendant was liable for failure to indicate the dangerous prop erties of his product both: under this common lair and under the statute. As a matter of law, the`deceased was not contributorily negligent sines' stove polishes in common experience do not explode when applied to heated surfaces. n. IharaMH. penter-Morton Co>, 108 M.E.I474 (Mass., 1915) Action to recover damages for personal injuries from burns resulting from the ignition of an oil stain by a match lit by plaintiff's husband while he was- applying the stain. The stain, containing volatile oil and benzine, was put on the market by defendant in cans labeled to represent-defendant as its manufacturer. The sale to plain tiff's husband" was made through a dealer. No notice of the inflammability of the product was given by label or otherwise. Recovery was-.sought on the,ground of negligence. Held, judgment for plaintiff affirmed. While no contractual relationship existed between the defendant and the plaintiff o'r her husband, the jury could find that the product was a highly inflammable fluid by reason of excessive benzine and that the defendant, who represented himself as the manufacturer, knew this and therefore had a duty to warn. 12 ..M,E, 1625 (Mass.. 1916) Action to recover damages for personal injuries to plaintiff caused by the explosion of a can of lime packed and sold but not manufactured by defendant. Tlie explosion occurred while plaintiff's employer was opening the can with a knife.69 69. The court reviewed the conflict of opinion on the effect of statutory violations and strongly advocated the "negligence per se" theory. However, the court implied that the violation of a municipal ordinance would be only evidence of negligence. ' 62 Hgld, judgment for defendant affirmed. In the sale of such an article as lime, in the absence of evidence that it is intrinsically dangerous, the seller cannot be charged with negligence unless it be shown that he knew or ought to have known of its unsafe and. harmful qualities. The case in-bar was not a case of res ipsa loquitur since it could not be shown that according t'o common experience the explosion would not have occurred without fault on the part of the defendant. 13- Hiyj^Qbgek^ 1B9 N.Y.S. 334 (M.Y..J_Lg21) Action against a packer and distributor to recover damages for personal injuries sustained by plaintiff as a result of an explosion of chlorinated linjie purchased from'a retail druggist. The explosion occurred while plaintiff was attempting to open .the can containing the lime. There was evidence that the can was air-tight and that the gas contained therein...would -be liable to explode. Held. .judgment for plaintiff affirmed. There was ample evidence that the material used in filling such cans, and with, this particular brand, was dangerous, and liable to explode if the gas could not escape. 14. Genack v Gorman. 19A.M.W. 575 fMieh,f! 1923) Action'to recover ..damages for personal injuries sustained by plaintiff as the result of the explosion of a .can of stove polish. The retailer and manufacturer of the product were joined as defendants. There was no label on the can or any warning showing dangerous ingredients that were explosive or combustible. At the close of plaintiff's proof., th defendant retailer received a [directed verdict and the manufacturer appealed upon the denial of a simi lar verdict-.for .him. HsAfitj judgment for plaintiff affirmed. The question of the negligence of the manufacturer in failing to warn others of the nature of his product was for the jury. 15. SMiJMlning-&-,_of La. y.Jlnriqht. 10 F. (2d) 306 (Ala.. 1925) Action to recover damages for the dehth of plaintiff's intestate resulting from the use of kerosene produced by the defendant oil refining company. Tfie evidence showed that the oil sold by defendant to a retailer as kerosene and resold as kerosene to a member of decedent's family exploded while dsceased'was attempting to use it for illumi nating purposes. Recovery was sought on the ground that the oil would not test 120 degrees Fahrenheit as required by statute for. illuminating oils. ifeMj judgment for plaintiff affirmed. The violation of the statute constituted a sufficient showing of neg ligence to go to the jury. 16. Lgnisiam on Refining Corpjaatlm. v Reed. 26 F. (2d) 14 (La.. 1928) Action to recover damages for personal injuries sustained by plaintiff as a result of an explosion which oc curred while he was performing work about:the cleaning and dyeing machinery of his employer. Plaintiff's injury was attributed to the alleged fault of the defendant in falsely representing to plaintiff's employer that a solvent sold to him had a. flash point between 96 jnd 105 F. whereas the product sold had a flash point of 45 F. with the result that it exploded at a temperature less than 50 degrees F. No relevant evidence was introduced at the trial showing: the actual room temperature at thi time of the explosion. Hejd, judgment for tha .plaintiff reversed and new trial granted. Though it was a breach of duty for the de fendant to furnish; to plaintiff's employst, for use in the latter's business, a solvent having a flash point sub stantially lower-than 96 F., that breach of duty did. not give rise to a right of action in favor of plaintiff un less it was .the..proximate cause of injury to plaintiff. The burden was on the plaintiff to prove that the explo sion and ooniequeht injury to plaintiff wre due to the flash point of the solvent being less than 96 F. A find ing that tha.< explosion was due to this wopld not be warranted in the absence of evidence tending to prove that the temperature at the.time and place* of the explosion was less than 96 F. 17. JL ^i3^.igiBlag._CflEB0ration v feed. 38_F^._(2dj....-L59 (La.. 1.930) After the ease was reversed on the fa ler appeal, 26 F. (2d) 14, supra. there was a second trial which resulted in judgment for plaintiff. Defendant app iled, raising various questions on matters of evidence and the instructions of the courti-and the-defense that there no privity of contract between plaintiff and defendant. HaMl judgment for; plaintiff affirms Privity of contract was not essential since the defendant made negli- gent, false, *or fraudulent misrepresentati 13 Bgad_Phosphate Co, y, Vickers, ll Tenn,, Ap p . 146 (1930) Action to recover damages for personal injuries to plaintiff .caused by the explosion of a metal drum filled with sulphuric acid. The. acid was sold by the defendant manufacturing company to the employer of plaintiff's in testate.. The drum "itself, was supplied by the employer. Recovery was sought on the ground that defendant negli gently poured' hot acid into the metal container thereby accelerating the formation of gas and then closed the con tainer without warning:the buyer that'this created a dangerous condition. The jury returned a verdict for J4,500 in favor of plaintiff and defendant 'appeal(ad, raising various questions as to matters of evidence and the court's in structions to the juscy, ; HsM affirmed;,. (1) Th seller of anj explosive substance must give the purchaser notice of its dangerous character or he will.b liable for injuries resulting to innocent persons who are not themselves at fault, irre spective of privity: pf. contract. The .reaction of hot sulphuric acid on the steel drum caused the generation of gas which caused the explosion and the defendant gave no warning of the dangerous qualities of the acid under such con ditions. (2). Questiens; as to whether sulphuric acid is inherently dangerous and whether plaintiff was guilty of contributory hegligeace:were properly leftito the jury. 19. V. Latimer. 53 F. (2d) 3 (Mo., 1931) . Action to recover damages for the death of plaintiffs' small child resulting from his consumption of an article of fireworks manufactured by defendant. The article was not labeled to show its poisonous ingredients, which in cluded yellow'phosphorous. Recovery was sbught on the ground that the defendant was negligent in failing to give 63 warning to the retailer or purchaser of the dangerous character of the article by placing appropriate labels upon it or upon the container in which it was packed. The defendant contended that the article was used for a purpose other than that for which it was sold or intended. tfeMs judgment for plaintiff affirmed. In refusing to follow the defendant's theory, the court stated: "One who deals with children must anticipate the ordinary behavior of children, and, in considering whether or not the defendant was negligent in placing these articles in the channels of trade, it must be remembered that they were intended for the us and amusement of children, as well as others. In the hands of -children they were imfiiinently dangerous, and the injury might reasonably have been anticipated."70 20. Action to recover damages for personal.injuries sustained by plaintiff as a result of an explosion of benzol supplied by the defendant dealer. The plaintiff in making the purchase from defendant requested crude oil but was given benzol, a highly inflammable liquid, fhe explosion occurred while plaintiff was spraying the interior of a boiler and: the benzol came in contact with ah Incandescent bulb illuminating the boiler. Recovery was sought on the ground that defendant negligently failed to. label the can of benzol to indicate its dangerous character. Held. judgment for plaintiff affirmed.. The evidence was sufficient to support a finding of negligence in failing to label an imminently dangerous product and that this was the proximate cause of-the injury complained of. 21. Belas., y KlrtoarLfe Son. 273 M.Y.S. 7 (1934) Action to recover damages.for personal [injuries sustained by plaintiff as a result of using a product for general cleaning purposes manufactured by defendant. The court granted defendant's motion for the discovery of a portion of the product, constituting the basis of the action, for the purpose of analysis. Plaintiff appealed from this order. Held. order, granting defendant's motion for discovery affirmed. In the course of the opinion the court, said by way of dicta: "Of course the defendant knows the chemical content of its product, and no doubt by tests and otherwise has satisfied itself that no:harmful matter has entered into its composition. If it is mistaken in its conclusion in this respect and has represented something for common use as harmless when in fact it may be poisonous and harmful to one using it in reliance on its harmless character as represented, then the defendant may be liable in damages. But, if sons harmful substance:has been introduced into the' package since it left the control of de fendant and without Its fault, the rule would be otherwise." Action to recover damages for personal injuries sustained by plaintiff, a boy ten years old, as the result of the ignition of a piece of yellow phosphorus.I The phosphorus was sold by the defendant dealer to a 15 year old boy who, in turn, gave it to the plaintiff. The jury returned a verdict for defendant, and plaintiff appealed on the ground that it was negligancl per se for defftehdant to violate a statute prohibiting the sale of any deadly'poison "unless upon inquiry ..it were found that the purchaser was aware of its poisonous character." Bj sMj judgment for defendant reversed. The violation of the statute was negligence per sse. 23. SfiQaagfi-Cfflffl-ty Eatrons. Fire Relief Ass'nl v l. Sonneborn. 189 M.E. 551 (H.Y. . 1934) Action against the manufacturer of a waterproofing compound to recover damages for the destruction of a barn and personal property by fire caused when the|fumes of the compound came in contact with the flames in a lantern. The plaintiffs, who carried fire insurance policies on the property destroyed, paid the loss and became subrogated to the rights of the insured against the defendant. It was conceded that the product was a secret preparation which contained 52S& benzine and 6,7% kerosene, and was highly inflammable. Two of the containers shipped to the insured bore labels "do not use near flame," but one:container did not. Plaintiff sued on the theory that -defendant neg ligently failed to label his product to indicate its dangerous character. Held., judgment for plaintiff affilmed., llhe evidence justified a finding that the preparation was an inherent ly dangerous commodity and that, defendant was negligent in selling it to a dealer without notice of its dangerous quality when used in a inclosed structure hear an open flame. Under such circumstances, privity of contract was unnecessary. A manufacturer may be liable uttdjer the "dangerous commodity" rule whether personal injury or property damage is involved.7*70 71 70* ,S?f Victory Sparkler & Specialty Co. v Price, ill So. 437 (Miss., 1927) which reached an opposite decision on similar facts. Also, Henry v Crook, 195 N.Y.S. 642 (1922) holding a manufacturer of sparklers liable for in- 3ur s to a child, and Beznor v Howell, 233 N.W. 758 (Wis., 1930), holding a sparkler manufacturer not liable under similar cirpumstances. 71 * Cases ^ on in support of this principle were: v Reutter, 97 N.W. 152 (Mich., 1903) (hogs sold with a dangerous and infectious disease - dealers liable on the ground that they committed a wrong imminently dangerous to human life, and were therefore liable for damage to property) (2) Wellington v Downer Kerosene Oil Co.,;104 Mass. 64, supra,, (3) Mutphy v Sioux Falls Serum Co., 134 N.W. 252 (S.D., 1921) (defendant manufacturer sold a serum which con tained poison which when used by a veterinarian, k'ilied plaintiff's animals. It was decided that, as-the substance was imminently dangerous, tl)e defendant was liable for the property damage.) (4) Anglo-Celtic Shipping Co. v Elliott & jJeffrey, 42 T.L.R. 297 (Eng.) (cleaning fluid manufactured by the defendants was used near a lighted caridle by a third person not the defendants*-vendee. An explosion da^g16) *biht resulted in the burning of plaintiff's ship. A recovery was permitted for the property Acdord, Hunter v Allied Mills, 192 S.E. 356 (S.C., 1937) (dogs died frcm poisoned dog feed manufactured by defendant| manufacturer held liable) 64 24 SModarcL Oil Co. or Louisiana v. Roach. 94 S.W. (2d) 63 (Term,. 1935)72 Action to recover damages for the death of plaintiff's daughter resulting from an explosion of kerosene manuj factured by the defendant. The explosion occurred when the deceased poured some of the kerosene upon live coals in the cooking stove. The product was purchased from a retail, dealer. Recovery was sought on the ground that the kerosene supplied was actually an admixture of kerosene and gasoline. The trial court denied defendant's motion for a directed verdict and defendant appealed. Held. reversed. Under the evidence it was equally probable that the product was kerosene as that it was gasoline'ox sane other highly volatile apd dangerous substance. Therefore a jury verdict for plaintiff would be based on mere guess or conjecture. 25. LSE, v. gfrnrtagt. QiL.a*. <af Hr Y..aEgjLM.H., .1214) Action to recover damages for personal injuries alleged to have been caused to the plaintiff by ethyl gaso line manufactured by the defendant corporation and sold to him by the co-defendant, a retailer. The gasoline came into contact with plaintiff's skin as he! was using it and a severe.streptococcus infection resulted. There was medical testimony to the effect that tet?a ethyl of lead is an irritant and an active poison. The trial court granted nonsuits in favor of both defendants. Held, affirmed. The court stated! "It must be assumed that the defendant corporation was chargeable with knowledge of the chemical composition of the substance which it sold and of the harmful effects, if any, likely to result to human beings from contact with:it......... Nevertheless, some proof that ethyl gasoline in fact possessed: potentialities of harm to human beings from external contact sufficient to call for protective action by the dafendantjs was an essential element in the plaintiff's case. Karr v Ineeta, Inc., 247 N.Y-. 360, 160 N.E. 398, The mere fact that the plaintiff suffered injury is not sufficient to justify such a conclusion......... The fact that tetra ethyl of lead is an 'active pbisort' does not involve that external contact therewith is injurious to human beings. It is cdoubop knowledge that such Contact with many materials, known to be poisonous if taken internally, may be entirely harmless. The extensive use of spraying materials to combat insect pests and plant diseases bears witness to this fact."7-* 26. (2d) 167.IMpa,. IS?.?.) Action to recover:damages for personal injuries caused by an explosion of kerosene which was sold to plaintiff by a filling station operator. The lattet had purchased it from defendant. The evidence showed that the explosion occurred: whan'plaintiff poured the liquid!on newly kindled fire without looking to see if there was fire in the stove. Plaintiff sued::oft-the theory that the liquid sold contained gasoline and kerosene. Held, judgment on dfemtirrer for defendant affirmed. Plaintiff was guilty of contributory negligence as a Blatter .of: law. The court stated: ".....the law is reasonably well settled that it is not contributory negligence per se to use kerosene in kindling a new fire. However, it is equally well settled that if in kindling a new fire the fuel is -first igMtsd1 and the keroseni then applied by pouring it from the can, or if used in an attempt to re plenish a dying fire by pouring the kerosene thereon from the can, such acts constitute negligence as a matter of 72 . Other cases involving explosions of kerosene and kerosene contaminated with gasoline (other than those digested Part II) include: (1) Waters-Pierce Oil Co. v Deselms, 212 U.S. 159 (1909) (2) Title* v Florence Trading Co., X|70 Pac. 172 (Cal., 1917) (3) Anderson v Standard Oil Co., 164 N.W. 169 (Iowa, 1917) (4) Cohn v Saenz, 211 S.W. 492 (Tex., 1919) Fairbanks, Morse 8. Co. v Gambill, 222 S.W, 5 (Term., 1920) Pierce Oil Corporation v Taylor, 227 S.W. 420 (Ark., 1921) McCarthy V-Golf Refining Co., 107 S.E. 92 (Ga., 1921) tortsey v Standard Oil Co., 120 SL|.E. 331 (MX., 1923) (9) Merchants* ank v Sherman, 110 S? 805 (Ala., 1926) (10) GiSsan OH C'o. v-Bush, 1 S.W. (S |t) 88 (Ark., 1928) (11) Huckleberry v Missouri Pac. R. Co 26 S.W. (2d) 980 (Mo., 1930) (1-2) Pauli v McBride, 263 N.W. 877 (M(i chi, 1935) (13) Genjaral -Oil Co.v Crotwe, 187 S.Ej 221 (Ga., 1936) (14) Shepaer v CrOwe, 186 S.E. 224 (C 1936) (15) Mafia v Sarlin, 81-P. (:2d) 903 (Cal., 1938) (16) Sinplair Refining! Go., v Hendersc 122 S.W. (2d) 580 (Ark., 1938) Gordy v Pan ftaeticto Petroleum Ccrp., 193 So. 29 (Miss., 1940) Hedges v Ashurst, 3 S.E. (2d) 99 (Ga., 1939) Pas#eil: v Pride, 291 N.W. 798 (Wis., 1940) Barges v Murray,, 10 N*W. (2.3) 123 (Ms., 1943) Chatmanv Deep Rock Oil Carp., 77 N.E. (2d) 883 (111., 1948) Phillips v Doyle, 207 P. (2d) 46d (Kan., 1949) Sinclair Refining Co. v Piles, 221 S.W. (2d) 12 (Ark., 1949) 73 Citing titto .approval Cliff v California Spray-Chemical Co., supra. 74. Accord, Mgg* w Standard Oil Co., 130 Fed. 199 (Minn., 1904)| Morrison v Lee, 113 N.W. 1025 (N.D., 1907); DuEiois v lutfimer,: 126..N.W, 147'(Iowa, 1910) McLawson v Paragon Refining Co., 164 N.W. 668 (Mich., 1917); Goode v Pierce Oil Corporation, 286 S.W. 1009 (Ark..,,, 1926). But see, Dronette v Meaux Bros., 100 So. 411 (La., 1924); Douglas v Daniel Bros.'Coal Co., 22 N.E. (&j) 195'(Ohio, 1939); Peplinski v Kleinke/299 n (w (- 818 (Mich.j 1941) 27 Fredendall v Abraham & Straus. Inc.. 18 N.H. (2d) 11 (h .y .. 1938) Action in warranty to recover damages for personal injuries allegedly sustained by a purchaser of a dry cleaning fluid from defendant., A "caution" displayed on the container stated that the fluid should be used in well ventilated, cool rooms. Plaintiff used the fluid in a small bathroom where the temperature was 83 degrees and where there was no cross draft. After she had been: so engaged for forty-five minutes, she was made sick by the fumes of the fluid. Held, judgment for plaintiff reversed. The plaintiff failed to use reasonable care in the use of the fluid and this default was an essential cause of he illness. 28 SiuaaMa^^ su (vt.. 193s) Action to recover damages for breach of|warranty in the sale of kerosene by the defendant wholesaler to the plaintiff retailer. The. kerosene exploded-whin used by a customer of plaintiff and the plaintiff made a settle ment fox the injuries resulting. The kerosene was defective in having a flash point at a lower temperature than the statutory requirement of 110 F. ! ije.ld,, judgment for plaintiff affirmed. Under the uniform sales act, a sale of goods carries an implied warranty off merchantable quality and this merchantability includes compliance with the statutory requirements of law. 29- SyifJMiDlstL..Ca^.y.Williams.;. 185 So. 234 (Miss... 1938) Action to recover damages for personal injuries sustained by plaintiff as the result of an explosion of a drum of gasoline. Defendants, distributors of petroleum products, sold the drum to plaintiff's employer for use in farm tractors. The explosion occurred wheri plaintiff undertook to remove the bung cap during the course of its use. judgment for plaintiff affirmed. There was sufficient evidence to justify a jury finding that defen dant was negligent regarding the condition of |the container. The court stated! "The vendor of an inherently dan gerous commodity, such as gasoline, is under d|uty to use cautious car% to distribute the same in reasonably safe containers., the degree of care....to be commensurate with the danger, and the obligation of this duty is not de pendent upon contractual relations, but extends to all who may lawfully use, or be in the vicinity of, th con tainer..." ....................... ,_____ iLXi*_1222) Action to recover damages for personal injuries sustained by plaintiff as a result of defendant's placing a kerosene label on a bottle filled with water. : Defendant sent the bottle to plaintiff as part of a teacher's ex hibit. The injury resulted when plaintiff opened the bottle marked "kerosene" and poured its contents on some sodium, when an explosion occurred and plaintiff was severely burned and suffered the loss of one eye. Kerosene is a recognized preservative of sodium metal, whereas sodium metal when combined with water is highly explosive. Defendant contended that there was no evidence of negligence on the part of defendant and that plaintiff's con tributory negligence was established as a matter of law. The jury returned a verdict, of $24,000 in favor of plaintiff and defendant appealed. HMsL affirmed, (l) The plaintiff was npt guilty of contributory negligence as a matter of law in failing to test the,product by smell or otherwise prioi to use. (2) There was sufficient evidence of negligence in de fendant's failure to warn of the mislabeling ojf the Chemical product. 31. Action to recover damages for personal injuries sustained by plaintiff while handling a drum of acid sold to his employer by the defendant manufacturer. The accident occurred when the plug blew out of the bung hole in the head of the drum, permitting the acid to spurt out and strike plaintiff, causing severe bums about his face, neck, and other parts of his body. Recovery was- sought on the ground that defendant was negligent in selling a drum which was unsafe for the purpose intended] in that the plug, which was to be removed in order to draw off the acid from the drum, was so corroded that tpere were insufficient threads thereon to hold the plug reasonably secure in the bung hole. The jury returned, a verdict for $1,500 in favor of plaintiff, but the trial court sus tained defendant's motion for a new trial upon the ground of error in the giving of instructions. Ssiij order; reversed and judgment: for plaintiff1 reinstated. There was sufficient evidence for the jury to find that the defendant was negligent in furnishing a drum with a defective plug, and the jury was properly in structed on this Issue. 32. BljbSSIILJL-Eoilliail,t-,,23 M, Y. S.. (2d) 917 (1940) aff'd.. 36 H.H, (2d) 908 (N.Y.. 1941) Action to recover damages for the death (f plaintiff's intestate resulting from the explosion of a cleaning fluid sold hisi'by; the defendant dealer. The e> losion occurred when the deceased was using the product while cleaning furniture. Two one-gallon cans of th fluid were found after the explosion in his apartment bearing the label. "Dri-Clean": and "Keep Away From Fire, was established on the trial that the cans contained nothing but senaine. Plaintiff sought to establish liabil: y of the defendant for the accident on the theory of a violation 3f an Administrative Code provision prohibiting the sale without a permit of any inflammable mixture which emitted Inflammable vapor below eighty degrees Fahrenh* t, and another provision that inflammable mixtures for household jse should be sold in containers labeled with words, "Caution. Inflammable Mixture. Do not use near fire or flame." HilMj judgment I for defendant. It was n shown that there was a causal connection between the violation of :he provision of the Administrative Code and accident which resulted in intestate's death. 13. Action.:to recov*er damages for the death of a 19 months old child resulting from the consumption of a shoe ileaner manufactured by defendant. The product] which was purchased by the parents of the deceased from a retail '5. Applying Pennsylvania law. dealer, consisted of a mixture of 76* ethylene dichloride and 25* carbon tetrachloride and was known commercially as "Chlorosol." Recovery was sought on the ground that the defendant was negligent in failing to warn the public of the poisonous character of the product and in failing to label it "poison" under the pharmacy and poison law of Pennsylvania. summary judgment for defendant granted. (l) The cleaner was not a poison within the purview of the pharmacy law the purpose and intent of which is to regulate the compounding of prescriptions and the preparation and sale of drugs and other poisons incident to the practice of pharmacy, and not to regulate the sale of cleaning preparations. (2) The label on the product showed that the contents were to be used for cleaning purposes and not for human consumption. Under these circumstances, there was no common law liability involved since the product was not used for a purpose for which it. tufas made ox sold.'W 34. ..(Miss.. 1941) Action to recover damages for personal injuries resulting from an explosion of a liquid purchased as kero sene by plaintiff from defendant's agent.| The explosion occurred when the plaintiff poured the supposed kerosene into her cookstove. The kerosene was actually contaminated with gasoline. The jury returned a verdict of $7,500. The'defendant appealed contending that was error for the trial judge to refuse to charge the jury that as a matter 'Of law the plaintiff was chargeable with''negligence which contributed to her injury. tfeld. judgment for plaintiff reversed. The plaintiff was negligent as a matter of law in pouring the liquid into the heated cookstove. 35. J162_$ W.. (2d) 856 (Mo.,. 1942) Action to recover damages for the death of plaintiff's intestate from carbon tetrachloride poisoning caused by inhaling fuses while using the chemical as a solvent to remove grease. Recovery was sought on the ground that defendant sold the chemical to the employer of plaintiff's intestate without proper labels on the container show ing that!'the;contents:were poisonous. Upon, the containers in question appeared the words: "G. S. Robins & Co., Carbon Tetrachloride," and upon each was 4 label which reads "Volatile Solvent, Use with Adequate Ventilation. Avoid Prolonged Breathing." verdict fdr defendant affirmed, (l) There was no violation of the statute requiring "Poison" labels on "arsenic, strychnine, corrosive sublimate, prussic acid or other substance.....usually denominated as poison ous" sines this did not apply to a cleaning solvent such as carbon tetrachloride under the rule of statutory con struction "ejusdem generis." (2) The labs on the container gave sufficient warning of danger in using carbon tetrachloride in confined, unventilated pi aces. The label is used by other manufacturers of the product and has been approval by tile Surgeon General of thie United States.776 36. t30^ J65,.(Isijg,.l42i) Action" to recover damages for the defath of plaintiff's intestate resulting from the explosion of an asphalt compound manufactured by defendant. The product was purchased by the employer of the intestate from the defen dant. The asphalt primer coat sold, by defendant was a liquid containing 50* asphalt and 48* naphtha and having a flash .point of about 30 F. The barrel containing the primer had labels identifying the product as a primer coat and the' name of the' manufacturer but did not show that the primer was volatile, inflammable or explosive. Recovery was sought oa the ground of negligence of the defendant in failing to give adequate warning of the dan gerous -properties of his product. MfiMn judgment in favor of plaintiff affirmed. The jury having found that the danger was not known to the immediate purchaser, of the compound,:nor to the plaintiff, and not being patent, it was the duty of the defendant to give "Washing .of th^ danger in its use. if, under such circumstances, a warning is not given, a manufacturer of a dangerous product is liable for -personal injuries received by one who uses the product in an ordinary and anticipated manner. : 37 Landes, v,5afemy 5tores^J.39_P. (2d) j738 (ore.. 1943) Action to recover damages for breachiof warranty in the sale of a bleaching solution by the defendant dealer to the plaintiff. The solution contained $.25% of sodium hypochlorite. Injury occurred when plaintiff immersed her hands in the solution while cleaning article of clothing. At the trial, defendant's evidence showed that the product-.was .harmless if used in accor inee with directions. .Plaintiff's evidence did not show that the product caused the,injury or that in the prescifibed diluted form it could or would cause it. There was evidence that on th'"previous day plaintiff had use another solution in undiluted form. Bfild;,. judgment fox plaintiff reverse . Since the undisputed evidence disclosed no poisonous or deleterious substance in the product when used as directed, the fact that plaintiff used the product and suffered injury thereafter ' not sufficient to support a Verdict for plaintiff. Although there was a warranty of merchantability there wai no breach in the absence of proof of the proximate cause of the injury. 38. V City Chemical Corporation. 48 M.H. (2d) 262 itLY,. 1943) Action by the Commissioner of the State Insurance Fund against the defendant chemical corporation to recover the amount of a workmen1s compensation claim paid by plaintiff on the ground that the defendant negligently de livered to the claimant's employer sane inherently dangerous, explosive substance in bottles labeled Pyruvic Acid. The claim ariose (when the bottle of acid supplied to the claimant's employer exploded when it was being opened by claimant injuring his eye. The evidence at! the trial showed that the substance in the bottle was of an odor, color and consistency entirely unlike pure pyruvic acid. The defendant chemical corporation, a manufacturing 76. The court distinguished Victory Sparkler i Specialty Co. v Latimer, suora. on the ground that the cleaner was not made either for the amusement or use of children, and could not be taken internally without opening the bottle. 77. The weight attached by the court to the label approval by a government agency was expressly criticized in Maize v Atlantic Refining Co., Infra. 67 chemist, had removed the labels from the bottle which were originally placed thereby its supplier, and pasted a label containing the name of City Chemical Corporation and the designation "Pyruvic Acid C P." The defendant im pleaded the supplier who had purchased the bottled product in a foreign country. The trial court held that the City Chemical Corporation was not liable sirice it was a vendor and not a manufacturer and no negligence on its part was shown. Held, judgments reversed and new trial granted as to both defendants. Although a mere dealer who vends a dangerous and mislabeled drug in its original package is not liable without proof of some real negligence on his part, the defendant chemical corporation by labeling held itself out as a manufacturer and therefore assumed the liability of a. manufacturer. The manufacturer of a dangerous drug who labels it as a harmless drug is liable without proof of real'negligence. 39. Action to recover damages for persona injuries sustained by plaintiff as a result of an explosion of an iron drum.-of liquid caustic soda purchased om defendant. Plaintiff was in the process of opening the drum when the plug' suddenly "shot out" releasing some f the drum's contents under pressure. The evidence showed that the plug, which was supposed to. be eased out by king haIf-turns, did not fit properly into the taphole of the drum because the threads'did not catch and had n been properly fastened into the drum. The caustic soda was sprayed on plaintiff and as a result plaintiff lost ,e sight in one of his eyes. A verdict of $12,000 was recovered and defendant appealed, EAd affirmed. It was the duty of this defendant, as a supplier of chattels, to exercise reasonable care in making the drum, of caustic soda safe for the use of those whom he supplied, and safe for those whom he should expect to be in the vicinity of its probable use. Sufficient evidence was produced from which the jury could reasonably hav#-concluded that the defendant had negligently used a defective drum and plug, and that this breach of duty to plaintiff was the proximate cause of the accident. 40. Action, to recover damages for the death of plaintiff's decedent as the result of the rupture and subsequent ignition of a drum of nitro-cellulose manufactured by the defendant and shipped to the employer of plaintiff's decedent. The drum:, upon arrival at the consignee's plant, was skidded upon the rough concrete surface of a ramp causing a spark which ignited vapor released by a loosening of the head of the drum on the way down the ramp. The combustion was so violent that the drum was iurled 60 feet before striking and burning decedent. The car contain ing the shipment; was- placarded "Handle Carefully" and on each: drum was posted a Sign reading "Nitro-Cellulose, Caution, Do Not Us*- Sear...an .Open. Flame or F e," Recovery was sought on the ground of negligence by defendant in faxlingjjo givie notice to the consignee o the character of the drum (which was weaker than drums previously furnished')'8 and-'its tendency to spark upon friction with harf rough, surfaces. BsM; jadsperit" fpr, plaintiff affirmed The failure Of defendant to notify its consignee that such containers could not be safqiy handled in the manner in Which it was accustomed to-handle the earlier galvanized drums, raised issues properly submitted to the jury as to whether suph failure of notice constituted negligence, and whether, if so, suoh negligence was the proxiniate cause 'of thi injury. 4i Ej-SaaB^-Jg. jmi Action to recover damages for personal injuries sustainnOed hby plaintiff as a result of an explosion of "28% Aqua Ammonia" manufactured by the defendant, i Plaintiff was iiijured while removing strings which secured the rubber stopper on: a closed-5 gallon glass bottle of |the ammonia. The) violent release of gas pressure caused the explo sion. Plaintiff sought to recover on the theory that the battle had been stored by his employer near heat and that this was responsible-, for the - explosion. ! The plaintiff contended that this would not have occurred if the bottle had'been prggssrly labeled to warn handlers of the prpddci's propensities and as to proper methods of hand ling and storing, Under'plaintiff *s theory the bottle would hjave been labeled if the original drum had been labeled by. the defendant manufacturer before the product das sjtarted in the chain of distribution. H*..g...M...j...d...e..f.e..ndant~'s atotion: fox a directed Veirdict sustained. The proof failed to show any causal connection between thd failure of the defendant to label -the drum and the failure of the immediate supplier of plaintiff's employer to label the- bottle "which exploded. 42. laiza^aiantio Sef^nlho-Co.. 41 a . (2d]l 850 (Pa.. 1945) Action to .recover- damages for the death of plaintiff's intestate from carbon tetrachloride poisoning caused by inhaling fumes while using a cleaning solv< ,t to clean rugs. The container of the. solvent which was manufac tured by defendant and being.used by the inteitate bore oh all four sides the words "Safety-Kleen" in one-half to three-quarter inteh Xettprs and. .on two harrow ildes appeared the word "Caution" in one-quarter inch letters and the warning. "Bo. not inhale ws, lf.se only in-well ventilated place," in one-eighth inch letters. Recovery was sought on the .theory'that: the defendant manufacturer was negligent for failure to give more warning. The jury returned a jversfieit for plaintiff, and defendant appealed on the grounds, inter alia, that (1) he was not negli gent, (2.) totestate;-was: ebntkdftutarily-' -negligent for failure to heed the warning on the label, and (3) there was no privity since defendant had sold the s o Iv l t to a third; party for the third party's own use and not for resale. BeM. affirmed, (l) The question wfaOth the manufacturer was negligent for failure to give more warning and whether the ifrtsstate was qontributorily egligent for1 failure to heed the warning given was for the jury. (2) Privity of contract.is not neeassary to establish a manufacturer's liability for negligence. 78. The trial court refused to admit in evidence regulations of the Interstate Commerce Commission authorizing the use of the light steel drums for the transportation of explosives. On appeal, this was held to be immaterial evidence (or if material, its exclusion was nop prejudicial) since the charge of negligence was not based upon the use of. Containers, inadequate for transporting nitro-cellulose but upon failure to warn the consignee of the danger in rough handling of the containers aftjar they were unloaded. 68 43. Sawyer v Pine Oil Sales...Co.. .155 F. (2d) 855 (La.. 1946) Action to recover damages for personal injuries caused by alleged dangerous and harmful ingredients in a cleansing agent manufactured by defendant. The injury occurred to plaintiff when some of the liquid splashed into her eye, as she was cleaning a sink. The packaged product contained label statements readings "Will not injure the hands - It will not injure the skin, fabric, tile, marble or wood - For general household cleaning." Recovery was sought on the joint theory of a breach of an express and implied warranty of safety and merchantibility and of negligence in the preparation of the product. Held, judgment dismissing the complaint affirmed. The rationale of the court was stated as follows: "The statements on the label do not amount to an express warranty against non-injury to the eye from the use of the, cleansing agent, nor is there a warranty, implied or otherwise, that it was suitable for use: in the eye,,, or that It would not hurt the eye if put therein; neither is there a warranty implied, or otherwise, that -the article would not splash in one's eye if used in such a manner as to cause It to splash. Ordinarily the failure to warn one of a fact of which he is already fully aware is, not a breach of duty, and: there: is no contention made here that the plaintiff was not fully aware.that the. cleansing preparation was not intended fox use in the eye, ox that if it were suf ficiently slostad it would liliely Ssplash' upon the. person of the one who caused it to splash. Certain it is that .persons in the general use of benzene:, household ammonia, lysol, naphtha, and other simi lar agents,.'.are. aware, of the fact that- painful consequences will result if they are used in such mannas as ..to aiiow the to get.intp the eye, but thjese .potential consequences do not result in a discontinuance.of their use nor in. the conclusion that they are unfit for the use to which they are intended' to be' put." 44. Action to recover damages for personal injuries to plaintiff and the death of his son from an explosion of a mixture of gasoline and kerosene. The defendant fuel jobber, in delivering gasoline and kerosene to a filling station retailer,, negligently mixed the two products in the one tank of his customer. The retailer who had reason to Sariaw of the. error, negligently!sold eight gallons to plaintiff for domestic use. Plaintiff poured' some of the fluid into his woodburning stove in order to start a fire. Held, judgment for plaintiff. The negligence of the jobber extended to the plaintiff's family and the negligence of the retailer did not break jthe chain of causation. 45. him*,, 1946) Action by an employee against her employer to recover damages for transverse myelitis allegedly sustained as a result of inhaling; .carbon tetrachloride vapors in the employer's premises. It was admitted that there was s o t s ' carbon tetrachloride; vapor in defendants' machine shop where plaintiff was employed.' At the trial, plain- . tiff's expert witnesses, testified that in their opinions the inhalation by plaintiff of carbon tetrachloride vapors was th^ cause of . the transverse myjelitis from which she was suffering, although they did not know whether the concentration .to which plaintiff was (exposed was of such a density as to be harmful and did not show that carbon tetraehloridS'might be an efficient cause of plaintiff's condition. Defendants' medical testimony was to the effect that virus is a common caus|e of transverse myelitis and that generally it is the cause where the disease cannot be- traced '.to other known causes. Held, judgment for defendants. Plaintiff failed to establish carbon tetrachloride poisoning as the cause of the disease from'which she was suffering, because it appeared as a matter of law that the concentration to which she -exposed' wS harmless. 46. 27..,pAulaL$4 (Wihh^ ^I) Action./to recover 'damages for the d^ath of plaintiff's intestate killed in an explosion when he attempted to start a fire by pouring some "kerosene* on green firewood in a stove which was not completely cold. The fluid, purchased from defendant was in reality arji explosive mixture of kerosene and gasoline. This was partially due to defendant's regular practice of using gasoline and kerosene cans interchangeably, contrary to a Minnesota statute. Defendant based his defense on the contributory negligence of the deceased. Plaintiff argued that contributory negligence te not a.,defense to a statutory tort action where defendant's act was intentional rather than negli gent and, sabendly, that the legislative intent was to protect kerosene users from their own inability to use adequate care. Held, judgment for defendant reversed and a new trial granted. The evidence required a new trial on the issues of statutory negligence and contributory negligence. The latter would be a valid defense. 47. iAmey.y. Ml. ICal^-lSC 1 Action to recover damages for perse il Injuries sustained by plaintiff when a quantity of liquid heat quench manufactured by. defendant and sold [to the employer of plaintiff exploded. There was evidence that the chemical was ,discolored due to the pxesenc|e of a foreign substance and that the contamination occurred before the drum containing it left defendant's factory. There was a sharp conflict in the evidence with reference to the labels on the d#um, but there was evidence"that the particular drum or labels in question showed no warning whatsoever. Held, judgment for plaintiff affirmed, (l) The evidence was clearly sufficient to support a finding that the contents of the drum when -shipped contained impurities which defendants should have discovered, and that the explosions resulted from a contamination of the salt by some foreign substance. (2) Assuming that the contami nating mjas delete in the plant of plaintiff'd employer, the jury nevertheless could have found that the mixing, with thel resulting explosion, was a direct j consequence of defendant's negligence in failing to give an adequate warning of the dangerous nature of its products. 69 48. Action to recover damages for personal; injuries sustained by plaintiff as a result of the alleged improper handling of drums of caustic soda by defendant, a common carrier. The complaint alleged that the drums did not have any labels or other warning signs indicating that their contents were dangerous. Held, motion to dismiss granted. Therb was no allegation that the defendant was aware of the fact that the drums which it was transporting as a cmason carrier contained caustic soda. KEAtS.v American Stores Co.. 59 A.(2d) 136 (Pa.. 1948) Action to recover damages for personal injuries sustained when a bottle of stove polish purchased from the defendant retail dealer exploded or caught fire and severely burned the plaintiff's wife. The bottle contained a label on which.was the warning: "Cautions this polish contains naphtha, unsafe when exposed to heat ox fire." Held, judgment for defendant affirmed. The court stated the rule applicable to retail dealers as follows: "In the absence of special circumstances, the retail vendor of an article of merchandise Cother than food for human consumption) in common and general use, purchased by him in the usual course of trade and business from a reputable manufacturer or dealer, and resold by him in its original sealed package or container (Labelled with proper warnings and directions as to use, is not liable to a customer for injuries! caused by soma latent defect in the article." SO. Charles iachman Co. v Hercules Powder Co.. 79.F. Su d d . 206 (Pa.. 1948) Action to recover for damage to plaintiff's carpets as the result of using a chemical compound, Dresinol 42, manufactured by defendant. The compound was designed for use with starch in making sizing for carpets. Plaintiff sought recovery an the ground of negligence. Defendant based its defense on a provision in the contract between the parties that the "Buyer assumes all risk! and liability "whatsoever resulting frctn the use of such materials" and "Seller makes no warranty of any kind, express or implied, except that the materials sold hereunder shall be of Seller's standard quality." Held, motion for. summary judgment in favor of defendant sustained. Although the defendant knew of the in tended use of his product and could have discovered by tests that the material had a spontaneous ignition hazard, he effectively disclaimed liability. The coiirt statedj "It can be well understood why a manufacturer of chemicals would want to guard against liability arising from any and every use to which its products might be put and inserted the clause in question for that purpose."^9 51. 4. s. e . (2d) 3 (n ,c l ,.. 1949) Action to recover damages for personiaVl '<Linjuries sustained by plaintiff as the result of an explosion of a can of glue sold by defendant dealer. The explosion occurred when the contents of the can came in contact with the air, and the lid of the-container flew up and hit plaintiff in the eye. Recovery was sought for negligence and breach of implied warranty. HsM, judgment of nonsuit in favor of defendant affirmed. There was Insufficient evidence to carry the case to the jury on either theory.52 * * * * * * * * 52 Action to recover damages for personal injuries sustained by plaintiff as the result of an explosion of a solvent "Motor-Tune-Up" manufactured by defendant. The explosion occurred when the plaintiff poured some of the solvent into the engine of his automobile. Plaintiff did not procure a chemical analysis of the remaining por tion of the contents of the can, and did not show any explosive properties of the product, relying on the doctrine of SSM. ipsa logpltur. The trial court entered judgment for $438.50 for plaintiff, and defendant appealed. Held, reversed. lihe doctrine of res iasa loquitur did not apply since the explosion did not take place within the can containing the solvent but within the motor of the automobile which was under the sole control of plaintiff. 53* Alston v J.L. Prescott Co.. 76 A. (2d) 686 (N.J.. 1950) Action to recover damages for personal injuries sustained by plaintiff when the rubber stopper in a bottle of laundry fluid, containing sodium hypochlorite, was suddenly expelled by internal pressure and a large portion of the liquid was ejected from the bottle, artd entered plaintiff's eyes. The defendant manufactured and bottled the product. The jury returned a verdict of $1,500 for plaintiff and defendant appealed. Held, affirmed. The plaintiff presented a orlma facie case which was properly submitted to the jury since the rule of gs ipsa loquitur, applied. 54. Pafagllon v Grace Line. Inc.. 94 F. Su d d 989 (N.Y.. 1950) Action by a seaman against a shipowner to recover damages for personal injuries sustained as a result of an explosion occuring when the seaman mixed tog either a quantity of caustic soda, a washing powder, a quantity of ox oxalic acid, and a quantity of cleanser. The shipowner filed a third party complaint against the companies who supplied the cleaning products. It was alleg ed that these companies were liable for breach of warranty and for negligence;in not properly labeling the produ cts to show their dangerous and explosive nature when mixed, Beidj, the third party complaint failed to state a cause of action under either theory of recovery, (l) No cause of action in contract was stated sin ce the Uniform Sales Act (adopted in New York) specifically pre eludes implied warranties as to fitness of a product for any particular purpose where the product is sold under its patent; or trade name." (2) Mo:cause of ac tion for negligence was stated since the cleaners and detergents manufactured and supplied by the third party defendants were not "inherently dangerous" and' their use for their intended: purpose would not cause Injury. Eac h product was sufficient in itself and was not intended for mixture with others in order to accomplish its purpbs e. (see case no. 56) 79. Cited, with approval in Fairbanks, Morse & Co. v Consolidated Fisheries Co., 190 F. (2d) 817, 825 (Del., 1951) 70 55. Richardson v DeT.uca. 53 _______ Action to recover damages for personal injuries sustained by plaintiff as the result of an explosion of a net preservative solution purchased from and manufactured by the defendants. The product contained about sixty per cent pine tar and forty per cent benzol , and was labeled in large letters "Keep away from fire or heat," The cause of the explosion was not determined. There was evidence that the product was used near heat. Recovery was sought on the ground' that defendants gave no adequate warning of the combustible qualities of the product. Defen dants relied upon the cautionary statement on the label as well as oral warnings made by the dealer at the time of sale that no one should smoke while the glutton, was being used. Held, judgment for plaintiff reversed and action ordered dismissed. The labels on the product and the oral warnings made by the dealer constituted sufficient notice of the danger incident to the use of the product.80 to appeal from 94 p. Supp. 989, supra. Iheid. reversed. Upon the allegations in the pleadings, there was at least a possibility of liability against the suppliers for breach of warranty and against all of the defendants for negligence. The mere fact that ar product h^s a trade name does not in itself preclude an implied warranty of fit ness or merchantability from arising. 57. (mi a_(ciai..... imi) Action to recover for the death of plaintiffs' husband and father which resulted from injuries received when he was hit by the head of a bursting sulphuric acid drum while working as an army inspector in the defendant ice company's plant. The manufacturer of the sulphuric acid and the distributor were joined as party defendants with the owner of the plant where.the. explosion Occurred. Recovery was sought on the ground of negligence upon the theory that the dims which:.exploded contained no warning label showing the danger of leaving the drum in the sun and invented. . The Banufacftcrer showed its custom in placing such warning labels on all drums containing sulphuric acid, but it was- disputed whether the. particular drum in question was so labeled. From a judgment in the sum of $100,000 in favor of plaintiff's, the three defendants appealed (the owner of the plant later abandoned its appeal.). Held, affirmed. (1) . There was .sufficient evidence to support the finding that there was no label on the drum at the time of delivery, to the plant and, therefore, both the manufacturer and distributor could be held liable for negligence. Moreover, there was evidence to support the finding that any negligence of the plant employees was not the sole proximate cause of the accident. (2) : Damages were not excessive in view; of the life expectancy of the deceased, his earning capacity and the life expectancy of Ms family. (3) There Was no errbr in excluding a Contract between the distributor and the owner of the plant disclaiming liability for "damage to persons and property since this would not justify the supplier in failing to perform its duty towards third persons. 58- 5gaL_Chemlcal_Go,. 196 F., (2d) 614 (N.J.. 1952) Action against manufacturer to recover for personal injury sustained by plaintiff as a result of using a cleaning mixture manufactured by defendant. The mixture contained sodium hydroxide, powdered metal aluminum and nitrate. The injury occurred when the mixture exploded while the plaintiff was using it in cleaning drains in his plumbing business. There was evidence that.the batch of the mixture used by plaintiff contained more aluminum than was ordinarily used in the formula, Recovery was sought on the ground that the defendant was negligent in placing a dangerous product on the market without; any warning of its properties. ffeilji, judgment for plaintiff affirmed. The failure to label the product with a warning constituted negligence. 59- Br Mbe V gluajSgaLCheml&al Co.. 107 Fl Su p p. 288 (H.J.. 1952) QJ a motion fbr'a Hew trial in 196 F. ($d) 614 supra, the court held that a jury verdict of $250,000 against the manufacturer was not excessive under the particular circumstances of the case. The court noted that the plaintiff suffered!(a) a.total; loss of earning capacity, (b) great mental and physical pain, and (c) grotesque disfigurement. The plaintiff was a 36.year old plumber with;five dependents. 60 1952) Action against manufacturer to recover fox personal injury sustained by plaintiff as a result of using a bottle of cleaning fluid manufactured by defendant. The fluid was a solution of sodium hypochlorite. The injury occurred when the bottle exploded while being opened liy plaintiff. Recovery was sought on the ground of negligence. From a judgment for plaintiff,, defendant appealed on the bases that the evidence was insufficient to invoke the doctrine of res ipsa.;loquitur and that, without the application of that doctrine, the evidence was insufficient to support a find ing of negligence. Held, affirmed. The doctrine of res ipda loquitur was properly applicable although the accident occurred after the defendant had relinquished control of thej instrumentality causing the injury since there was sufficient proof that the;condition of the instrumentality had not been changed after it left the defendant's possession. 61- Action against manufacturers to recover for economic loss sustained by plaintiff arising out of the purchase of a quantity of dibutyl phthalate from the defendants. Plaintiff contended that the material delivered under the contract between the parties did not meet the commercial Standard. The decisive issue at the trial was whether the material conformed to the contract specification readings "Materials Dibutyl Phthalate...Specifications Offtest - Pale Yellow, as per sampleThe trial court excluded expert testimony by the defendants that this specification had an accepted trade meaning... Judgment was awarded to plaintiff, tod defendants appealed on the ground that the exclusion of this evidence :wa.prejudicial error. | fcfeit|,; reversed. The exclusion of evidence explanatory of a contract specifications clause which bears an'accepted trade interpretation is error. 80. Opinion adopted in companion case, Crochjet v DSLuca, 53 S. (2d) 203 (La., 1951) 71 (1952 Supp.) 62. Black_y. gennet_t._55_&W-. I2d)_72-5 (Mich,.. 1952) Action against a manufacturer to recover for personal injury to plaintiff as a result of using an embalming fluid manufactured by defendant. The fluid contained carbolic acid. The injury occurred while plaintiff, an erabalmer, was in the process of embalming a human body whep a hose connection of the equipment used slipped off causing the fluid to spray into plaintiff's face. Recovery wa sought on the ground that the defendant was negligent in furnishing him unusually potent fluid without informing him j of its chemical composition. The court held that plaintiff was guilty of contributory negligence as a matter of law in using the equipment with full knowledge of the risk involved. Held, affirmed. 71-1 (1932 Supp.) Section 6. Product Liability Decisions Involving Miscellaneous Products (including Contaminated Food. Explosives. Seeds, and Other Articles of a Non-Chemical Nature^l 1* 5mia. y.SfifeieffeHn. T2 N.Y.S. 155 (1390) Action to recover damages arising from the sale of a food substance by the defendant ingredient-supplier to the plaintiff, an ice cream manufacturer.! Plaintiff used a compound called "carlat red", for imparting color to his ice cream, purchased by him for that purpose from defendant. Plaintiff's customers who used the cream became sick and manifested symptoms of arsenical] poisoning. Plaintiff suffered a loss of business because of this, and was compelled to destroy the ice cream colored with the substance. The evidence showed that the "carlat red" con tained a small proportion of arsenic, and] .that - only those persons who ate cream.with which it had been mingled were made .sick. Experts testified that the quantity of arsenic in the portion sold to plaintiff was too small to produce Injurious results and that the sickness was to be attributed to other poisonous substances in the milk used. \ Hi that a verdict for plaintiff should not be set aside as unsupported by evidence. 2. ^,,.,1.892) On appeal from Swain v Schieffelin, supra. the question was confined to the proper measure of damages. The court, in affirming judgment for plaintiff held that plaintiff was entitled to recover the value of the ice cream destroyed and the damage occasioned by the loss of customers caused by the sale of the poisonous cream. 3. IkagsilJtJJsiL^ 2.41 (Wash.. 1913) Action to recover damages for personal injuries sustained by plaintiff as a result of a premature explosion of a charge of blasting powder. The explosion occurred while plaintiff was loading it into a drill hole in a manner which he was led by representations made by the defendants to believe to be safe. The representations with special claims of safety were publicized through trade circulars by the defendant manufacturer and made orally by the de fendant dealer at the. time of bale to'plaintiff. The jury returned a verdict of $20,000 in favor of plaintiff and both defendants appealed. Hejd, affirmed. One who sells to a dealer an explosive with an affirmative representation or guaranty as to its safety is responsible to ahy person injured thereby without fault on his part, independent of any contractual relation between the parties. The dealer was liable on the same principle, knowledge of the falsity of the repre sentation being imputed. 4 Newel 1 v Reid.. .155 M.W. 352 (Mich. 1,215) Action to recover damages for the dea th of two of plaintiff's cows alleged to have been caused by eating bran purchased from defendants (dealers) which contained arsenic. From a verdict and judgment for plaintiff, defendants appealed on the ground that there was insefficient evidence that the cows died from arsenic poisoning. The evidence tended to prove that both cows were fed b:iran from a package purchased from defendants and both died, exhibiting symptoms of arsenical poisoning. The reaal ainder of the contents of the package was screened and a portion of the material was submitted to a chemist, who found upon an analysis that it contained arsenic, Held, affirmed. There was sufficient evidence to support the finding of the jury. 5 Manolesdorf Seed Co. v Busbv. 247 Pac 410 (Qkla . 1926)812 Action to recover damages for breach of warranty in the sale of a quantity of seeds by the defendant dealer to the plaintiff. The seeds sold were different from the kind ordered. At the trial, the court refused to admit in evidence a portion of the invoice of t|ie sale reading ''.....we give no warranty, either expressed or implied, nor will we be responsible for; the crop." judgment for plaintiff reverse^. The court erred as a matter of law in excluding the evidence of dis claimer offered by defendant upon the issjje of implied warranty. 6- Davis.Co. v Beirtrand Seed Co.., 271 Pac. 123 (Cal.. 1928) Action to recover damages for breach! of warranty against the seller of garden seeds on the ground that the seed was not of thle variety ordered. Both parties were wholesale dealers in seeds. After a verdict for plaintiff, defendant appealed] on the ground that the]contract of sale between the parties contained a disclaimer reading: "....wa give no warranty, expressed or implied, as to description, quality, productiveness, or any other matter of any seeds we send out, and we will be in ho way responsible for the crop." Held. judgment .for plaintiff reversed. The disclaimer in the sales contract precluded any warranty, express or implied:, as to the description Of the ^eed. 7. RlaeJlrdve.Poultry Farm., y..Newtown By-Products Mfg. Co., 162 (N.E. 84 iN.Y..,_.I928) Action to recover damages for the de^th of plaintiff's poultry caused by adulterated poultry feed manufactured by defendant and sold to plaintiff through a retail dealer. The feed contained five particles of steel wire. 81. These decisions are included in this Manual for the purpose of supplementing the decisions relating to products of a chemical nature and are not intended to be exhaustive of the cases in this field. The decisions relating to seeds, for example, are illustrative of thd effect of disclaimers in sales and the principles of law therein would be equally applicable to the sales of pesticides or fertilizers. In the digested decisions relating to food con taminated with arsenic or other matter may be found the principles which would be analogically applicable to food containing .pestipidsil residues or to- adulterated chemicals in general. 82. Followed and opinion adopted in Manglesdorf Seed Co. v Williams, 247 Pac. 413 (Okla., 1926) 72 (1952 Supp.) Plaintiff sued on the theory that defendant had violated the statute prohibiting the sale of any concentrated can- mercial feeding stuffs containing any substances injurious to the health of animals. Defendant defended on the ground that privity of contract was essential. Held, judgment for defendant reversed. The violation of the statute was negligence per se and privity be tween the manufacturer and purchaser was not required. .8 Gray v Gurney Seed ^ Nurserv_Cg.^-23rL_W.g... 940 (5.P. 1930) Action to recover damages for breach of warranty in the sale of corn seeds by the defendant dealer to the plaintiff. Recovery was sought on the ground that defendant had mailed plaintiff a catalogue which described the seed corn as follows: "This corn matures well to the northern part of South Dakota, and can be grown in the same district as Minnesota 13, but will outyield it.....Be claim that it will outyield any variety that will mature in the same time on .the; sane ground.*' Plaihtiff contended that this representation was false. Held, no Cause of action was stated. (1) .Under.the uniform sales act, defendant expressly warranted (a) that the corn matured well to the northern pafct of South Dakota; Co) that it can be grown in the same district as ' Minnesota 13$ (c) that it will, outyield Mlrmaseta 13. The claim that it would outyield any variety that would aatare in the-saag-time OB the. same,-ground purports to be a statement of the seller's opinion only and does not constitute a warranty. (2) However, t"he psatplalnt. failed to allege when the corn was planted, or that it was planted on plaintiff's farm, or that the place where it was planted was .south of the north line of the latitude in which the corn W&4 allegedly warranted to mature, nor was there any direct allegation that the seed'purchased from defendant was the-same com es that iwhich was described as warranted. 9. ..Lgfll _7 Action to recover damages- for personal injuries sustained by plaintiff while using a powdered ceiling decora tion product manufactured by defendant uqder the trade name "Muresco." The purchase was made from a retail dealer. Plaintiff alleged.-that:, he was stirring the powder with Ms finger when his finger was cut by some glass which was intermixed sj&ih the powder, ! SM, iowplaint-idismiss.ed. The. product was not dangerous .per se and did not have to be used in the way in which the alleged defect would probably cja.use injury. Under such circumstances, an ultimate user who purchases from a retail dealer :.has no-right of action against a manufacturer. 10. tesaojjJ&jfflfflisJj&usim Action to recover damages for breach! of warranty in the sale of hay by the defendant dealer to the plaintiff. The hay contained lead-arsenate and caused the loss of three of plaintiff's cows. Held. Judgment for-plaintiff affirmed. Under .the uniform sales act, the defendant was liable on an Implied warranty that the hay: sold to .plaintiff was not only of the kind and quality ordered but was generally free from deleterious -substances, poisonous to stock. H. uaLb^^ja^oi^.. l?5. Nt e>J%& Iwk. .-im) Action, by a - farther to recover damages for breach of warranty by a dealer in seeds. The. defendant sold to plaintiff a quantity of -Japanese onion seis which proved unproductive. Plaintiff sued on the theory that the seeds were of an inferior grade or quality. The sales contract contained a disclaimer of warranty clause reading: "We give no. warranty., express or implied, as -to description, quality, productiveness, 'or any other matter, of any seeds set out, jtndj wi-ll. be -in -no way-responsible for the crop." HeM Judgriant' for plaintiff reversed. The disclaimer was effective under the uniform sales law. The court stated s "Neither party was obligated to enter into this contract, and-there is no public-policy which prevents adult persons of sopnd mind making such agreements as they please, not prohibited by statute, or contrary to natural justice and good morals." 12. Phillips v Sharp. 185 H.E. 562 (Ohio.) 1932) Action to recover damages for breach of warranty in the sale of seeds by the defendant dealer to the plain tiff;. Plaintiff contended that defendant expressly represented at the time of sale that the seed purchased was of a specified type, whereas it was not. Defendant denied the warranty and relied upon a disclaimer upon the papey bag containing the seed that "we sell no seeds, with warranty, express or implied, in any respect and will not be in any way responsible for the crop." Held. judgment for plaintiff reversed, since the damages allowed were excessive. Under the evidence, the weather was adverse during the season when the seed was planted and therefore damages should have been adjusted accordingly. ! There was, however, sufficient evidence of an express warranty of description under the uniform sales law and the written disclaimer and the custom of non-warranty in the seed industry could not prevail against this. 13. B.PS.,la..--l apisAa, SSiXs2x^_ai2EEjt_20_ (2,dJ 3Q4 (polo,, 1233) Action. to reecover the purchase price of a quantity of alfalfa seed sold by the plaintiff dealer to the de- fendant. Defendant coantarclaimed on the c)round that the seed furnished was sweet clover instead of alfalfa, The jury returned a verdict -for defendant oh his claim. Plaintiff appealed on the ground that on all invoices, tags, and labels aoecrapanyidg.the sale, the following disclaimer appeared: "We give no warranty, express or implied, as to description, -.quality, produc tiveness or any other matter of any seeds, bulbs or plants we .send out, and will not be in any -way responsible for the crop." Held., judgment for defendant affirmed The disclaimer was not applicable since defendant's cause of action was grounded not - on breach erf warranty but for breach of contract to deliver what was purchased. M. asi Acttiioon to recoovveerr**' damages for personaall injuries suusstained by plaintiff as a result of the ignition and ex plosion of water waving combs purchased fra-s defendant. The combs were composed of camphor, nitrocellulose, and 7.1 a filler of casein. Recovery was sought on the ground that defendant was negligent in failing to warn the plain tiff of the inherently dangerous character of the celluloid combs when used in the ordinary and customary manner in proximity to heat. MeM> judgment for defendant affirmed. The rule applicable to the retailer of an article inherently dan gerous to the life, limb, and health of the user thereof, is that he must know the dangerous character of the article before he can be liable for actionable negligence. Nothing in the record showed that the defendant knew, or by the exercise of ordinary care could have known that the combs were made from inflammable material and were dangerous. (See also, Farley v Edward E. Idwer & Co., 171 N.E. 639, supra.) 15Action for damages*'-for negligence in selling vegetables impregnated with arsenic and upon an alleged war ranty that, they were.fit fox human consumption. Plaintiff's husband purchased the vegetables from the defendants; his wife, the plaintiff, ats them and became ill. ifeM, judgment far defendants affirmed!. There was no evidence of negligence and the warranty,-if any, went to the purchaser only.. 16. Sl.erQslasM-..v....E.. I; DuPont de Nemours &!Co.r 25 F. Su p p. 706 (Pa.. 1938) Action to recover damages for personal injuries to plaintiff caused by the premature explosion of a dynamite cap manufactured by defendant. The sole allegation of negligence in the complaint read: "the said explosion and the injuries to:the plaintiff resulting therefrom, were caused solely by the carelessness and negligence of the defendant in manufacturing and distributing a dynamite cap which, when handled in the usual and proper manner, exploded." Hs Mj plaintiff did not make a sufficient statement of claim against the manufacturer. Negligence is not to be imputed to a defendant merely from the:fact of an explosion of gunpowder or dynamite manufactured by him. Res ipsa loquitur was inapplicable. H. Treacv v F. W. Woolworth Co.. 1 N.Y.S. (2d) 919 (1938) Action.to recover damages for personal injuries sustained by plaintiff when certain celluloid water-waving combs caught fire or exploded in her hair as she was in the process of drying it with an electric lamp. Recovery was sought on; the joint theory of implied warranty and negligence. The court charged the jury that there was no duty on the part of defendant dealer to inspect the combs and no liability if inflammable combs crept into a ship ment and were placed on sale without his knowledge. Halcj. judgment for defendant reversed (memorandum opinion). isAction to recover damages for personal injuries and property damage arising from the sale of a sack of bran poisoned: with arsenic. Defendant had held a farm sale and sold a portion of a sack of the poisoned bran to plain tiff's Intestate. This sack, was not. labeled "poisoji" and plaintiff's intestate fed the bran to his dairy cows and other live stock. As a result, five of his ten cows died and five were so poisoned as to be rendered unfit for further dairy purposes. A hog and some chickens also died. As a result of the mental shock caused by the poisoning of his live stock,.the subsequent lioss of his dairy business, and the fear of communicating the poison to his 4a:ixy customers, plaintiff's intestate became fatally ill and died. A verdict for $3,500 in favor of plaintiff -'was 'returned, :ted defendant appealed on the basis that even if the recovery for property damage were correctj it was.*errer to: permit recovery for the sickness and death of plaintiff's intestate. Hgl4, affitmed. The personal damages a:s well as the property damages were foreseeable consequences of de fendant's: .Begl'i^ence. (Two1 justices ditsentejd on the grounds that the personal injuries sustained were not fore seeable^ asd-that the defendant owed the deceased no legal duty as to his physical safety that was'breached by his negligent act.) 19. Moana. v:Brad Perl hero, Tnc.. 49 N.Y.S. (2d) 460 (13441. affirmed without opinion r 60 N.E. (2d) 839 (N.Y.. 1945) Action against defendant manufacturer to recover damages for personal injuries sustained by plaintiff when the skirt of her net evening gown, which had been treated with nitrocellulose, ignited and enveloped her in flames. The dress was purchased by plaintiff from a retailer. The jury returned a verdict in the plaintiff's favor, on the grotaad that .the treatment of the netting with nitrocellulose rendered it inherently dangerous for its intended use. Held, affirmed. The court stated: "The rule in this State is now settled that when a manufacturer sells an inherently dangerous article for use in its existing state, the danger not being known to the purchaser and not patent, and notice is not given of the danger or it cannot be discovered by reasonable inspection, the manufacturer is legally liable for personal injuries received by one who used the manufactured article: in the ordinary and expected manner." (citing cases and Restatement, Torts, see. 395 et sea.) 20. Action to recover damages for personal injuries sustained by plaintiff when a fuzzy lounging robe, purchased frem defendants, caught fire. The robe was composed of viscose rayon, a highly inflammable material. Recovery was sought on the ground that defendants failed to warn plaintiff of the inflammable nature of the robe. Held, judgment for defendants affirmed. Since persons of ordinary intelligence would know of the inflam mable quality Inherent- in the robe, plaintiff must also have known and, therefore, defendants had no duty to warn.83 83. The court distinguished Noons v Fred Perlberg, Inc., supra. on the ground that the rayon involved in that case was nitro-cellulose which is very highly inflammable. 74 21 Henderson v Berce. 50 A. (2d) 45 (Me.. 19461 Action to recover damages for breach of warranty in the sale of seed potatoes by defendant to the plaintiff. It was conceded that there was a varietal mixture in the seed sold. Defendant contended that the seed met the re quirements of the applicable seed law and was inspected and certified by officials of the state department of agri culture. MaM, judgment fox plaintiff, (l) The statute, although complied .with, did not alter the normal rights for breach of warranty. Under the uniform sales act, where there is a sale of goods by description, there is an im plied warranty that the goods shall correspond with the description. (2) The 'ordinary rule of damages applying to a warranty of personal property is- the difference between the actual value of the articles sold and their value if they had. been such, as warranted. 22. QaaBa..^-Ssgftold^25 NJ,i._(2d) 610 <1950) Action to.recover damages'for personal injuries sustained by plaintiff as a result of operating an onion topping machine manufactured fay defendants. Recovery was sought on the joint theory of implied warranty and neg ligence On the ground-that the machine was Inegligently designed and manufactured and was in a defective and immi nently dangerous condition. The trial court overruled defendant's motion to dismiss the complaint and defendant appealed. Held, reversed. Mo cause of action was shown on the theory of implied warranty since there was no privity of contract- between the- plaintiff and the defendants no cause of action was shown in negligence since any defects in the machine of the type alleged to exist! must have been obvious and patent to plaintiff. 23. "Action to recover, for pecuniary loss sustained by plaintiff as the result of using defective paint manufac tured by..defendant. The paint was purchased from a retail dealer. Plaintiff alleged that defendant was negligent in selling.thq paint as:meeting federal specifications when it did not, causing plaintiff's work on a government building to be cancelled by th federal inspector. Damages were requested in the amount of $1,090.35 including wages, personal labor, the purchase price of th paint and other incidental expenses. Defendant demurred on-the ground of lack-of .privity. Held, a good cause of action was shown. The trend of the cases in Georgia is to allow recovery on the part of a consumer or user of a product, ifthrough failure to exercise ordinary care on the part of a manufacturer or the.user the product is imperfect, defective, or not as represented when placed on the market, and damage to the consumer or ujser is proximately caused thereby. 24 . 94 P, Su p p . 126 (Ark.. 1950) Action to recover damages for personal injuries sustained by plaintiff as the result of a delayed explosion of dynamite. Plaintiff was engaged inblasting power line post holes and was using dynamitecaps purchased by his employer from the defendant, which caps were designed to be detonated by electricity. Plaintiff sued for breach of the warranty of fitness of purpose and merchantability and for negligence. It was alleged that defendant im pliedly warranted that the detonation caps *juld explode and detonate the dynamite instantaneously whereas the caps actually detonated-the dynamite in a delayed manner. It was alleged in support of the negligence theory that defendant was negligent in delivering delayed action caps to plaintiff's employer instead of instantaneous caps with knowledge that such caps when used as intended might result in personal injuries. Held, defendant--S-motion to-dismiss a$ to the cause of action based upon the alleged breach of warranty sus tained} the motion to dismiss as to the cause of action based upon negligence overruled. The court stated: "The law of Arkansas is that th ultimate consumer, who buys from an intermediate retailer and not directly from the manufacture cannot recover from the manufacturer in an action based upon breach of warranty, but only upc proof of negligence......... the Arkansas law on this point remains unaffected fay the Sales Act." 25. ..................... -Co,. 95 B. Su p p . 127 (Ark.. 1951) After the actiLoon reported in 94 F. Supp. 126, supra. plaintiff filed an amended complaint seeking to impose the liability of a manufacturer as well as l^hat of a mere dealer upon the defendant on the ground that the defen dant and the actual manufacturer were so cldsely associated as to constitute in law one company. Defendant motioned to dismiss. Held, motion overruled (except insofar as any allegations of liability due to breach of warranty were con cerned). (l) The "inherently dangerous" exception resorted to in negligence cases does not modify the requirement of privity of contract to maintain a suit on warranty and therefore the conclusions reached in 94 F. Supp. 126 on this qusstifan are affirmed.4 (2) When the manufacturer and seller axe in truth one organization, a plaintiff has the right to proceed against the defendant as both seller and manufacturer. 26 Action to recover damages suffered-by plaintiff in feeding to his herd of pigs screenings sold by the defendant feed dealer and procured by the dealer from the defendant distributor. A postmortem of a lot of the pigs dis closed quantities of mercury in all the tissues. A sample of the screenings taken from plaintiff's farm contained 1.47 milligrams; of merbury per 100 grams, which under the evidence was a toxic level of mercury sufficient to have a deleterious effect ofi animal life. 1 The evidence was completely silent as to how this mercury got into the screenings. Plaintiff; sought recovery on the ground that the defendants .had violated the provisions of the. live stock feed law which prohibited under criminal penalties the sale of any feeds mixed or adulterated with any sub stance injurious to the health'of, livestock. Held-, judgment fpr plaintiff affirmed.; The violation of the statute in question constituted negligence per se and rendered; both defendants liable although they were not shown to have been responsible for the presence of th mercury in.-tfaei-serjsehings and did not have any knowledge of its presence. 84. Th court disapproved the rule in principle but was- bound by the prevailing state law. 75 (1952 Supp.) 27 Marosi v J. W. Robinson Co.. 238 P. (Id') 78 (Cal.. 1951) Action to recover for personal injuries sustained by plaintiff while preparing to fill a rose sprayer with an insecticide solution. The injury occurred when the plaintiff turned the handle of the plunger on the sprayer to release the air pressure and then removed the plunger from inside the brass cylinder within the tank. The cylinder exploded from the tank and struck, him. Recovery was sought against the manufacturer of the sprayer and the company which sold it to plaintiff's aunt on the ground that the tank was negligently designed. Expert testi mony on both sides was in conflict as to- the design. At the close of plaintiff's evidence the trial court granted a, nonsuit as to the defendant who sold the sprayer. At the doss of the trial the jury returned a verdict for $11,721 against the manufacturer, which was set aside by the court on the ground that the evidence was insufficient to justify the verdict. From an order granting a new trial, plaintiff appealed. IMS-Lit affirmed. The order granting the new trial was not an abuse of discretion and therefor should not be disturbed. 30 EsjJLMaasBfflsajau-S^ Action against manufacturer to recover for the loss of poultry arising out of the sale of a poultry feed con-- centrate by the defendant to the plaintiff. a poultryman. At the time of sale, defendant's salesman stated that the feed had been used beftee .and had never given less- than a 65% egg yield and that it would produce similar results for plaintiff. The use of--the feed actually caisjed a loss of poultry and egg production. Recovery was sought for breach of warranty. Fran a jury verdict for.plaintiff, defendant appealed on the grounds that no express warranty was made by the salesman, that the salesman had no authority to make the warranty, and that the measure of damages was in correctly applied. _He|d,, affirmed. On the.question.of thh warranty the court stated that the salesman's representation of pro ductivity constituted an express warranty which was binding on the manufacturer. (See the opinion for an extended factual-discussion of the issue on damages.)31 31- fed) 788 (Wise.. 1952) . , ., , Action by & mink breeder against a fooa processor and a mink feed dealer to recover for the loss of mink alleg-- edly caused by the consumption of contaminated pork livers. The food processor sold the livers to the feed dealer as an ingredient, for use in feeding his.own mink and for resale to other breeders. The dealer mixed the livers with other substances and sold a quantity of the |final feed product to the plaintiff. The feed used by the dealer for his own purposes resulted in the loss of a number of mink and he recovered for this in a breach of warranty action against the processor. The -feed used by the plaintiff allegedly caused a similar loss and plaintiff then brought suit against the dealer for breach of- warranty.. The dealer impleaded the processor as the one primarily liable and the plaintiff amended his complaint seeking recovery againlst both the dealer and the processor. The processor demurred to the com plaint as to the. plaintiff.on the ground that-privity of contract was lacking and moved for summary judgment against the dealer on. the ground that the prior actiU between the parties was res judicata. The dealer moved for summary judgment- against the ..plaintiff on the ground! that tjwo.years had elapsed before notice of the breach of warranty was given. The court dismissed plaintiff's complaint against the processor3 granted the processor's motion for summary judgment against the dealer, and,.denied the!dealer's motion for summary judgment against the plaintiff. Held, (1} The.judgment dismissing.plaintiff's complaint against the processor is reversed with leave to amend. Mo cause of action.for -breach- of -warranty was stated against the processor since privity was lacking. However, leave should bfe granted to- amend - the complaint to jstata a cause of action in negligence. (2)-. The siMDiary judgment- for the .process against the dealer is affirmed. The judgment obtained in the prior action by the /dealer fte'tKs loss of his'own[mink Was res judicata since damages for the loss of his customers' mink could have been, included in the same action.: (3) The. order--dejlyd|ng the dealer's motipn for siamary judgment against the plaintiff is affirmed. Numerous questions of fact- were involved. 76 (1952 Supp.) 32. Postell v Bovkin Tool & Supply Co.. 71 S.E. f2cO 783 (Ga.. 1952) Action against a paint dealer to recover for economic loss sustained by plaintiff arising out of the use of paint purchased from the defendant. The paint when applied failed to adhere to walls and in consequence the plaintiff had to expend further sums to remove it in order to apply new paint. Recovery was based upon an alleged warranty made fay defendant at the time of sale, in recommending the product on the basis of the manufacturer's representations and his experience with it, that he would "stand; behind it." Held, judgment for plaintiff. The statement made by the defendant at the. sale constituted an express warranty. 33. Blissenbach v. Yanko. 107 M.E. (2d) 409 (Ohio. 1951) Action against a druggist and a vaporizer manufacturer to recover for personal injury sustained by plaintiff's infant daughter. The injury occurred when the vaporizer upset, while being used in -the treatment of the child, and the contents, spilled, upon the child's arms aid'body,, Plaintiff charged the manufacturer with negligently manufactur ing and marteting; a vaporizer with a loose aid easily removable lid which would cane off if and when the vaporizer was overturned. Hie druggist, was charged:..with..negligently failing to warn the plaintiff of the removable lid. Held, judgment for, bath defendants. negligence of the plaintiff in the use of the vaporizer was the sole proximate cause of `the injuries `suffered by ter child. 34. Action against a rifle manufacturer to recover for personal injuries sustained by a child when the rifle back fired while being used. The cause of the injury was alleged to have been the negligence of the manufacturer in making the rifle with too much headspace: between thej. face, of the bolt, and the rear space of the barrel. The rifle was placed oa the tetket in 1-946,. purchased by pliajlstiff's cousin from a retailer in 1949, and the injury occurred in 1950. Action in the courts was brought in ISpI. From the granting of a stnrnary judgment in favor of defendant on the ground that the action -whs. barred:.by the Ions year statute of limitations governing negligence cases, the plain tiff appealed on, the igsrowids (). the statute Hid not begin to run until the date of the injury, and (b) the six-year statute governing-. oontract actions was applicable. affixmed-. (1) Since1 the-statute olf limitations related to "the date of the act or omission complained of," the statute coaaenced.- ic run- when- tins Jdaaujfacjtwmr placed the product on the market and not when the injury occurred. (2) The statute- govarning contract actions wajs not applicable since there was no privity of contract between the manufacturer and"the injured party. 35. Np.>,v ,, *932) Action to recover damages for the death pf plaintiffs husband as a result of an explosion of propane gas. Re covery was sought on -th- ground1 that an automatic safety valve on a hot water heater was negligently constructed and this caused propane gas-to escape and explode; Joined as defendants were the manufacturer of the heater, the manu facturer of the safety valve, tike wholesaler, | and the retail dealer who sold and installed the heater in the home of the injured parties., The eviifence| showed tha-^ the dealer customarily tested each heater at the time of installation and this was urged by. the manufacturers as a Ip&sis for relieving them of liability. Held. under proper instructions each of the defendants, with the exception of the wholesaler, could be properly held liable (disposition-made at a point of erroneous instructions). The wholesaler was not liable since he neither knew nor had reason to know that the heater was. defective and therefore imminently dangerous when put to the use for which it Was intended. &i the- .question of testing, the court said; "The retailer's duty to test or his negligence in making tests certainly does not discharge the manufacturer's duty to SlSo test and inspect and is not a defense to the manufacturer's negli gence in -constructing, the -article or in- failing to properly test and inspect it." 76-1 (1952 Supp.) TABLE OF CASES ARRANGED UNDER THE SPECIFIC CHEMICALS AMD CHEMICAL PRODUCTS INVOLVED The following table arranges the 'chemica1-products liability decisions annotated and digested in this Manual under the specific chemicals and chemical products which were involved in each case. Wherever possible, the decisions have been listed under the name of the specific chemical involved as well as the common name of the chemical product, and, in seme instances, under the class of products to which the.specific chemical or chemical product belongs. Chemicals or products which are listed under a class designation are underscored. ACETANILIDE Knoefel v Adkins, 81 N.E. 600 (ind.;, 1907) ALCOHOL, HOOD {See "Wood Alcohol") AIMOND, OIL (See "Oil of Bitter Almonds") ALPHAMAPTHYLISTHIO CYANATE Orr v Shell Oil Co., 177 S.W. (2d) 608 (Mo., 1943) AMMONIA (AQUA) JCapp v E. I. DuPont de Nemours & Co,, 57 F. Supp. 32 (Mich., 1944) ANILINE DYE Bianchi v Denholm & McKay Co., 19 N.E. (2d) 697 (Mass., 1939) Elizabeth Arden, Inc. v Brown, 107 F. (2d) 938 (Pa., 1939) Zlrpola v Adam Hat Stares, Inc., 4 A!. (2d) 73 (N.J., 1939) ANIMAL FEED Newell v Reid, 155 N.W. 352 (Mich., 1915) Pine Grove Poultry Farm v Newtown ByrProducts Mfg. Co., 162 N.E. 84 (N.Y., 1928) "Blanchard v Kronick, 169 N.E. 438 (Mhss., 1929) Rasmussen v Benson, 280 N.W. 890 (Neb., 1938)Brown v Bigelow, 88 N.E. (2d) 542 (Mass., 1949) McAleavy v Lowe, 49 N.W. (2d) 487 (Wis., 1951) ARSENIC Swain v Schieffelin, 12 N.Y.S. 155 (1890) Newell v Reid, 155 N.W. 352 (Mich., 19X5) Midland Valley R. Co. v Rlppe, 161 Pac. 233 (Okla., 1916) Missouri, K & T Ry. Co. v Rose, 160 Pac. 734 (Okla., 1916) Hetnemann v Barfield, 207 S.W. 58 (Aik., 1918) Tucker v Graves, 88 So. 40 (Ala., 19^0) Brady v Sutter Butte Canal Co., 278 Pac. 505 (Cal., 1929) Moores v Rumsey, 36 P. (2d) 15 (Okla,, 1934) B-Sn.ion v Sasaki, 41 P. (2d) 585 (Calj, 1935) Rasmussen v Benson, 280 N.W. 890 (Me!?., 1938) Hammond Ranch Corp. v Dodson, 136 S.W. (2d) 484 (Ark., 1940) (See also, "Calcium Arsenate," "Calcijixa Arsenic," "Lead Arsenate") ARSENIC TRIOXIDE Lank v Spezia, 213 P. (2d) 47 (Cal., 1949) . Doe v Saracyn Corp., 82 A. (2d) 811 (Conn., 1951) ASPHALT Standard Oil Co. v Lyons, 130 F. (2d) 965 (Iowa, 1942) ATROPINE Boeck v Katz Drug Co., 127 P. (2d) 506 (Ka., 1942) BELLADONNA Thomas v Winchester, 6 N.Y. 397 (1852) Smith v Hays, 23 111. App. 244 (1887) BENZINE Wolcho v Arthur J. Rosenbluth & Co., 71 Atl. 566 (Conn., 1908) Thornhill v Carpenter-Morton Co., 108 N.E. 474 (Mass., 1915) Genesee County Patrons Fire Relief Ass'n. v L. Sonnebom, 189 N.E. 551 (N.Y., 1934) Richman v Follman, 23 N.Y.S. (2d) 917 (1940) aff'd., 36 N.E. (2d) 908 (N.Y., 1941) A-l BENZOL Ft. Wayne Drug Co. v Flesnion, 175 N.E. 670 (Ind., 1931) Richardson v De Luca," 53 S. (2d) 199 (La., 1951) Crochet v .De Luca, 53 S. (2d) 203 (La., 1951) BICARBONATE OF SODA David v. McKesson & Robbins, Inc., 300 N.Y.S. 635 (1937) BICHLORIDE OF MERCURY Moran v. Dak Drug Co., 134 N.Y.S. 9$5 (1912) Eckerd's, Inc* v McGhee, 86 S.W. (2d) 570 (Tenn., 1935) Marigny. v Dejoie, 172 So. 808 (La., 1937) aiaapGjgjaiaii Landers v Safeway Stores, 139 P. (2d) 788 (Ore., 1943) BLOOD PLASMA Parker v. State, 105 N.Y.S. (2d) 7351(1951) BLUE VITRIOL Hawkins v Pemberton, 51 N.Y. 198 (18^2) BORAX Patterson v Orangeburg Fertilizer Co j , 108 S.E. 401 (S.C., 1921) Hubbard Fertilizer Co. of Baltimore City v. American Txona Corp., 120 Atl. 522 (Md., 1923) CALCIUM ARSENATE Sherwin-Williams Co. of Texas v. Offenhauser, 42 S.W. (2d) 859 (Tex., 1931) Miles v. A. Arena & Co., 73 P. (2d) 1260 (Cal., 1937) Ballard S, Ballard Co. v Jones, 21 S. (2d) 327 (Ala., 1945) CALCIUM SULPHIDE Alcaro v. Jean Jordeau, Inc., 138 F. (2d) 767 (N.J., 1943) CALCMEL Willson v. Faxon, Williams & Faxon, 101 N.E. 799 (N.Y., 1913) Corona Coal Co. v. Sexton, 105 So. 716 (Ala., 1925) CALCMIME LOTION Singer v. Oken, 87 W.Y.S. (2d) 686 (M.Y., 1949) CAMPHOR SOLUTION Hruska v. Parke, Davis & Co., 6 F. (2d) 536 (Mo., 1925) CARBOLIC ACID Trumbaturi v. 'Katz & Besthoff, 158 So. 16 (La., 1934) Bennett Drug Stores v. Mosely, 20 S.E. (2d) 208 (Ga., 1942) CARBQLIMEUM Kramer v. Carbolineum Wood Preserving Co., 177 Pac. 771 (Wash., 1919) Yormack v. Farmers' Cooperative Ass'nof N.J., 78 A. (2d) 421 (N.J., 1951) CARBON.DISULPHIDE Fitzgerald v. Brooklyn Institute of Arts and Sciences, 162 N.Y.S. 625 (1916) CARBON TETRACHLORIDE Boyd v. Frenchee Chemical Corp., 37 F. Supp. 306 (N.Y., 1941) McClaren v. G. S. Robins & Co., 162 S*W. (2d) 856 (Mo., 1942) Maize v. Atlantic Refining Co., 41 A. (2d) 850 (Pa., 1945) DeVere v. Parten, 23 N.W. (2d) 584 (Minn., 1946) CAUSTIC SODA Kohlman v. Jefferson Bottling Co., 192 So. 113 (La., 1939) Saganowich v. Hachikian, 35 A. (2d) 343 (Pa., 1944) Blumetti v. Carman & Co., 81 N.Y.S. (2d) 748 (1948) Paballon v. Grace Line, Inc., 191 F. (2d) 169 (N.Y., 1951), reversing 94 F. Supp. 989 (N.Y., 1950) CHLORINATED LIME Hallenbeck v. S. Wander 8. Sons Chemical Co., 189 N.Y.S. 334 (N.Y., 1921) (See also, "Lime") CHLORINE Litton v. Travelers Ins. Co., 88 F. Supp. 76 (La., 1950) A-2 CHRGME GREEN Jones v. George, 61 Tex. 345 (,1884) CITRIC ACID Edelstein v. Cook, 140 N.E. 765 (Ohio, 1923) Reiss v. Kirkman & Son, 273 N.Y.S. 7 (1934) Sawyer v. Pine Oil Sales Co., 155 f. (2d) 855 (La., 1946) Pabellon v. Grace Line, Inc., 191 F. (2d) 169 (N.Y., 1951), reversing 94 F. Supp. 989 (N.Y., 1950) Fredendall v Abraham & Straus, Inc., 18 N.E. (2d) 11 (N.Y., 1938)) Richtaan v. Follman, 23 N.Y.S. (2d) 917 (1940) aff'd., 36 N.E. (2d) 908 (N.Y., 1941) Maize. v,. Atlantic Refining Co., 41 A. (2d) 850 (Pa., 1945) . Alston v. J. L. Prescott Co., 76 hi (2d) 686 (N.J., 1950) CLOTHING Gerkin v. Brow & Sehler Co., 143 N.W. 48 (Mich., 1913) Flynn v. Bedell Co., 136 N.E. 252 (Mass., 1922) Bradt v. Hollaway, 136 N.E. 254 (Mass., 1922) Zirpola v. Adam Hat Stores, Inc., 4 A. (2d) 73 (N.J., 1939) Ross- v. Porteous, Mitchell & Braun Co., 3 A. (2d) 650 (Me., 1939) Barrett v. S. S. Kresge Co., 19 A. (2d) 502 (Pa., 1941) Payne v. R. H. White Co., 49 N.E. (|2d) 425 (Mass., 1943) Moons v. Fred Pferlberg, Inc., 49 N.Y.S. (2d) 460 (1944), aff'd. without opinion, 60 N.E. (2d) 839 (N.Y., 1945) Dempsey v. Virginia Bare Stores, 186 S.W.- (2d) 217 (Mo., 1945) Longo v. Touraine Stores, 66 N.E. (2d) 792 (Mass., 1946) Ringstad v. I. Magnin & Co., 239 P.j (2d) 848 (Wash., 1952) COD LIVER OIL Leonard v. Carleton & Hovey Co., 119 N.E. 674 (Mass., 1918) nor.n c b f a m Graham v Jordan Marsh Co., 67 N.E. (2d) 404 (Mass., 1946) soLSEmiieEffiisns Swain V. Schieffelin, 12 N.Y.S. 155 (1890) COMBS Farley v. Edward E. Tower & Co., 171 N.E. 639 (Mass., 1930) Smith v. S. S. Kresge Co., 79 F. (2d) 361 (Mo., 1935) Treacy v. F. W. Woolworth Co., 1 N.Y.S. (2d) 919 (1938) COPPERAS Kennedy v. Plank, 97 N.W. 895 (Wis., 1904) SPSHE!IQS. See cases cited in Section 4 of Part II) CRESOL Smith v. Payne, 206 Pac. 715 (Utah, 1922) ' CROTON OIL Hansford1s Adm'x. v. Payne & Co., 74 Ky. 380 (1875) CRYOLITE Jeanes v. Holtz, 211 P. (2d) 925 (Cal., 1949) CYANAMID North American Fertilizer Co. v. Condos, 212 S".W. (2d) 526 (Ky., 1948) CYANIDE GAS Harder v. Maloney, 26 N.W. (2d) 830 (Wis., 1947) 2,4 - DICHLOHOPHENOXYACETIC ACID Burns v. Vaughn, 222 S.W. (2d) 365 (Ark., 1949) Chapman Chemical Co. v. Taylor, 222 S.W. (2d) 820 (Ark., 1949) Kennedy v. Clayton, 227 S.W. (2d) 934 (Ark., 1950) Walton v. Sherwin-Williams Co., 191 F. (2d) 277 (Ark., 1951) W. B. Bynum Cooperage Co. v. Coulter, 244 S.W. (2d) 955 (Ark., 1952) mmijmLsssm, Alcaro v. Jean Jordeau, Inc., 138 F. (2d) 767 (N.J., 1943) A-3 BEIERCENIS Putney v. Du Bois Co., C.C.H. 22, 198 (Mo., 1950) Pabellon v. Grace Line, Inc., 191 F, (2d) 169 (M.Y., 1951} {.See also, "Cleaning Compounds,'' "Soap") Fitzgerald v. Brooklyn Institute of Arts and Sciences, 162 N.Y.S. 625 (1916) Smith v. Payne, 206 Pac. 715 (Utah, 1922) W. T. Eawlelgh Co. v. Shoultz, 56 F.j (2d) 148 (Pa., 1932) Bender v. William Cooper & Nephews, iSS N.E. (2d) 94 (111., 1944) DRUGS (See cases cited in Section 3 of Pazffc II) DYES (See "Aniline Dye," "Hair Dyes," "Shoe Dye", "Clothing") ESTRADIOL Bel v. Adler, 11 S.E. (2d) 495 (Ga., 1940) ESTROGENIC HORMONES Tuscany v. U.S. Standard Products Co:, 243 S.W. (2d) 207 (Tex., 1951) ETHER Moehlenbrock v. Parke, Davis & Co., 169 N.W. 541 (Minn., 1918) ETHYLENE DICHLORIDE Boyd v. Frenches Chemical Corp., 37 F. Supp. 306 (N.Y., 1941) Ebers v. General Chemical Co., 17 N.?f. (2d) 176 (Mich., 1945) Marsh v. Usk Hardware Co., 132 Pac 241 (Wash., 1913) Sierocinskl v. E. I. DuPont de Nemouf:s & Co., 25 F. Supp. 706 (Pa., 1938) Green v. Equitable Powder Mfg. Co., 9^4 F. Supp. 126 (Ark., 1950), 95 F. Supp. 127 (Ark., 1951) Blanch! v. Denholm & McKay Co., 19 N+E. (2d) 697 (Mass., 1939) (See cases cited in Section 2 of Part II) Guyton v. S. H. Kress & Co., 5 S.E. (2d) 295 (S.C., 1939) Lawson v. The Benjamin Ansehl Co., 180 S.W: (2d) 751 (Mo., 1944) FIREWORKS Henry v. Crook, 195 N.Y.S. 642 (1922) Victory Sparkler & Specialty Co. v. Price, 111 So. 437 (Miss., 1927) Beznor v. Howell, 233 N.W. 758 (Wis., 1930) Victory Sparkler & Specialty Co. v. Latimer, 53 F. (2d) 3 (Mo., 1931) BflffilGIBES E. I. Du Pont de Nemours v. Baridon, 73 F. (2d) 26 (Iowa, 1934) McGee v. Bennett, 33 S.E. (2d) 577 (G?., 1945) Gibson v. California Spray-Chemical Corp., 188 P. (2d) 316 (Wash., 1948) GASOLINE Lenz v. Standard Oil Co. of N.Y., 186 Atl. 329 (N.H., 1936) Gulf Refining Co. v. Williams, 185 So: 234 (Miss., 1938) (See also "Kerosene") GINGER EXTRACT Darks v. Scudders-Gaie Grocer Co., 130 S.W. 430 (Mo., 1910) SUE Marler v. Pearlman's R.R. Salvage Co., 52 S.E. (2d) 3 (N.C., 1949) mn&mm. Cooper Vo Kolar, C.C.H. 22, 132 (ill.^ 1948) A""4 mmjm, Cahill v Inecto., Inc., 203 N.Y.S. 1 (1924) Karr v Inecto, Inc.160 N.E. 398 (N.Y., 1928) Smith v Denholm & McKay Co., 192 N.E. 631 (Maas., 1934) Arnold v flay Department .Stores Co.,. 85 S.W. (2d) 748 (Mo., 1935) Bundy v By-Teb, 289 N.YlS. 905 (1936) Cream v Inecto, Inc., 99 H.Y.L.J. 2283 (1938) Petsold v Roux laboratories;,. Inc., 11 N.Y.S. (2d) 565 (1939) Maher v Clairol, Inc., 31 N.Y.S. (2d) 751 (1941) Letterts v Rapidol Distributing CorpJ, 3 F.R.D. 42 (N.Y., 1942) Brown v Godefry fg. Co., C.C.H. 22' 252 (N.Y., 1951) Pierson v Roux laboratories, C.C. Hj 22, 242 (N.Y., 1951) letras v J. R. Watkins Co., 38 N.U (2d) 799 (Minn., 1949) J. R. Watkins Co. v Raymond, 1,84 F. (2d) 925 (Minn., 1950) aaBJSII4SiE4EA3I (See "Permanent-Wave Lotions") Tingey v E. F. Houghton & Co., 179 P. (2d) 807 tCal., 1947) Bums v Vaughn, 224 S.W. (2d) 365 (Ark., 1949) Chapman Chemical Co. v Taylor, 222 S*W. (2d) 820 (Ark., 1949) Kennedy v Clayton, 227 S.W. (2d) 934'(Ark., 1950) Walton v Sherwin-Williams Co., 191 F. (2d) 277 (Ark., 1951) W. B. Bynum Cooperage Co. v Coulter, 244 S.W. (2d) 955 (Ark., 1952) HOG CHOLERA VIRUS Bmm v H. K. Mulfoxd Co., 199 S.W. 582 (Mo., 1917) Charles Lorcmi & Son v Globe Laboratories, 95 P. (2d) 173 (Cal., 1939) HYDROCARBON OIL (Sea "Oil") HYDROCYANIC ACID Ellis v Orkin Exterminating Co., 143 S.W. (2d) 108 (Term.., 1939) Luthringer v Moore, 190 P. (2d) 1 (Cal., 1948) Jones v George, 61 Tex. 345 (1884) West Disinfecting Company v Plummer, 44 App. D.C. 345 (1916) Mossrud v Lee, 157 N.W. 758 (Wis., 1916) Midland Valley R. Co. v Rippe, 161 Pa'c. 233 (Okla., 1916) Missouri, K & T Ry. Co. v Rose, 160 Pac. 734 (Okla., 1916) Kramer v Carbolineum Wood Preserving Co., 177 Pac. 771 (Wash., 1919) Cliff v California Spray-Chemical Corp., 257 Pa. 99 (Cal., 1927) Kolberg v Sherwin-Williams Co., 269 Pac. 975 (Cal., 1928) White V National Bank of Commerce, 278'Pac. 915 (Cal., 1929) Sherwin-Williams Co-, of Texas v Offenhauser, 42 S.W. (2d) 859 (Tex., 1931) . .Ingraham v Associated Oil Co., 6 P. (2d) 645 (Wash., 1932) Cole v New England Tree Expert Co., 163 Atl. 742 (R.I., 1933) S.A. Garrard Co. v Fricker, 27 P. (2d) 678 (Cal., 1933) Gilman v City of Concord, 195 Atl. 672 (N.H., 1937) Miles v A. Arena & Co., 73 P. (2d) 1260 (Ariz., 1937) Pahnella v Reilly, 23 N.E. (2d) 87 (Mass., 1939) Hammond Ranch Corp. v Dodson, 136 S.W* (2d) 484 (Ark., 1940) Simpson v American Oil Co., 8 S.E. (2d) 813 (N.C., 1940), 14 S.E. (2d) 638 (N.C. 1941) Orr v Shell Oil Co., 177 S.W. (2d) 602 (Mo., 1943) Underhill v Motes, 146 P. (2d) 374 (Kan., 1944) Ebiis v General Chemical Co., 17 N.W. (2d) 176 (Mich., 1945) Lundberg v Solon, 194 P. (2d) 454 (Ariz., 1948) LJ: v Spezia, 213 P. (2d) 47 (Cal., 1949) Jeans'S v Holtz, 211 P. (2d) 925 (Cal., 1949) Yormack v Firmers' Cooperative Ass'n. of N.J. 78 A. (2d) 421 (N.J., 1951) Meiiilnk v Pollard, 226 P. (2d) 69 (Cal., 1951) Mcilsnnon v ^Tones, 244 S.W. (2d) 138 (Ark., 1951) Brawi v Sipgx City, 49 N.W. (2d) 853 (lowa, 1951) (See also oases cited In Section 1, Part II, footnote 32, and footnote 40) IODIDE OF POTASH Bipod Balm Co. v Cooper, 10 S.E. 118 (6a., 1889) A-5 KEROSENE Peterson v Standard Oil Co., 106 Pac. 337 (Ore., 1910) Gulf Refining Co. of La. v Jinright;, 10 F. (2d) 306 (Ala., 1925) Standard Oil Co. of La. v Roach, 94 S.W. (2d) 63 (Term., 1935) Parton v Phillips Petroleum Co., 107 S.W. (2d) 167 (Mo., 1937) Manning Mfg. Co. v Hartal Products fcorp., 99 F. (2d) 813 (Vt., 1938) Peas v Sinclair Refining Co., 104 ]F. (2d) 183 (W.Y., 1939) Sinclair Refining Co. v Tompkins, il7 F. (2d) 596 (Miss., 1941)Frazier v Ayres, 20 s: (2d) .754 (LaL, 1945) Dart' v Pure Oil Co.,, 27 N.W, (2d) 5^5 (Minn., 1947) (See-also cases cited in Section 5 of Part II, footnote 72, and footnote 74) LAUDAHUM ; Horton v Sewall, i06 Mass. 143 (187(3) LEAD ARSENATE Larson v Farmers' Warehouse Co., 297 Pac. 753 (Wash., 1931) Cole v New England Tree Expert Co., 163 Atl. 742 (R.I., 1933) Paanella v Reilly, 23 N.E. (2d) 87 (Mass., 1939) Hertzler v Manshum, 200 N.W. 155 (M^ch., 1924) LIME Kusick v Thorndike & Hix, Inc., 112 |n .E. 1025 (Mass., 1916) Hallenbeck v S. Wander & Sons Chemical Co., 189 N.Y.S. 334 (N.Y., 1921) (Sea also "Lime-sulphur," "Chlorinated Lime") l ime -s u l p h u r Cliff v California Spray-Chemical Cprp., 257 Pac. 99 (Cal., 1927) LINSEED OIL Wright v Howe, 150 Pac. 956 (Utah, 1915) Ellis v Lindmark, 225 N.W. 395 (Minn., 1929) ' LIPSTICK Cicarelli v Lipshetz, 8 Conn. Supp. 526 (1940) Reynolds v Sun Ray Drug Co., 52 A. (fed) 666 (N.J., 1947) LIVER CONCENTRATE Henderson v National Drug Company, 2$ A. (2d) 743 (Pa., 1942) LIVER EXTRACT Dumbrow v Ettinger, 44 F. Supp. 763 (N.Y., 1942) MASCARA Beckett v F. W. Woolworth Co., 34 N.E. (2d) 427 (ill., 1941) MERCURY Hoar v Rasmusen, 282 N.W. 652 (Wis., 1938) McAleavy v Lowe, 49 N.W. (2d) 487 (Wis., 1951) (See also "Bichloride of Mercury") MINERAL OIL Hruska v Parke, Davis & Co., 6 F. (2d) 536 (Mo., 1925) M URBANE (See "Oil of Mirbane") MORPHINE Brunswig v White, 8 S.W. 85 (Tex., 1888) NAPTHA Wellington v Downer Kerosene Oil Co., 104 Mass. 64 (1870) Standard Oil Co. v Tierney, 17 S.W. lt>25 (Ky., 1891) Cunningham v C. R. Pease House Furnishing Co., 69 Atl. 120 (N.H., 1908) International Mercantile Marine Co. v Feis, 170 Fed. 275 (C.C.A. 2nd, 1909) Peaslee-Gaulbert Co. v McMath's Adm'4, 146 S.W. 770 (Ky., 1912) Gately v Taylor, 97 N.E. 619 (Mass., 1912) Standard Oil Co. v Lyons, 130 F. (2d)!965 (Iowa, 1942) Kratz v American Stores Co., 59 A. (2d) 138 (Pa., 1948) NET PRESERVATIVES Richardson v De Luca, 53 S. (2d) 199 (La., 1951) Crochet v De Luca, 53 S. (2d) 203 (La,, 1951) A-6 NITROCELLULOSE E. I. Du Pont de Nemours & Co. v Wright, 146 F. (2d) 765 (fty., 1944) Noone v Fred Perlberg, Inc., 49 N.Y.S. (2d) 460 (1944), aff'd. without opinion, 60 N.E. (2d) 839 (N.Y., 1945) OIL OF BITTER ALMONDS Davis v Guarnieri, 15 N.E. 350 (Ohio, 1887) OIL OF MIRBANE Levin v Muser, 194 N.W. 672 (Neb., 1923) Kolberg v Sherwin-Williams Co., 269 Pac. 975 (Cal., 1928) White v National Bank of Commerce, 278 Pac. 915 (Cal., 1929) Ingraham v Associated Oil Co., 6 P.!(2d) 645 (Wash., 1932) atLsama Thornhill v Carpenter-Morton Co., 1Q8 N.E. 474 (Mass., 1915) OLEIC ACID Murphy Laboratories v Emery Industries, 95 F.Supp. 651 (Pa., 1951) ORTHODICHLOROBENZENE Steber v Kohn, 149 F. (2d) 4 (ill., 1945) OXALIC ACID Pabellon v Grace Line, 191 F. (2d) 169 (N.Y., 1951), reversing 94 F. Supp. 989 (N.Y., 1950) FAim Eades v Spencer-Adams Paint Co., 60 S.E. (2d) 543 (Ga., 1950) Peaslee-Gaulbert Co. v McMath's Adm'r., 146 S.W. 770 (Ky., 1912) p a r is Gr een Jones v George, 61 Tex., 345 (1884) Blanchard v Kronick, 169 N.E. 438 (Mass.) 1929) PERFUME Carter v Yardley & Co., 64 N.fe. (2d) 693 (Mass., 1946) eaasLmYLXQncM Verdi v The National Mineral Co., CCH 22,126 (111., 1947) Briggs v National Industries, 207 P. (2d) 110 (Cal., 1949) Bennett v Pilot Products Co., 235 P. (2d) 525 (Utah, 1951) PETROLEUM (See "Kerosene", "Gasoline", "Oil Sprays") PHENOL Singer v Oken, 87 N.Y.S. (2d) 686 (N.Y., 1949) PHOSPHORUS Gibson v Torbert, 88 N.W. 443 (Iowa, 1901) Stasek v Banner Coffee Co., 159 N.W. >45 (wis., 1916) Victory Sparkler & Specialty Co. v Latimer, 53 F. (2d) 3 (Mo., 1931) Stone v Shaw Supply Co., 36 P. (2d) 6t>6 (Ore., 1934) Larrimore v American Nat. Ins. Co., 89 P. (2d) 340 (Okla., 1939) PINE OIL Bender v William Cooper & Nephews, 55 N.E. (2d) 94 (111., 1944) PINE TAR Richardson v De Luca, 53 S. (2d) 199 (La., 1951) Crochet v De Luca, 53 S. (2d) 203 (La^, 1951) POTASSIUM BRCMATE Bennett v Pilot Products Co., 235 P. (2d) 525 (Utah, 1951) PYROXYLIN Farley v Edward E. Tower & Co., 171 N.E. 639 (Mass., 1930) PYRUVIC ACID Commissioners of State Insurance Fund v City Chemical Corp., 48 N.E. (2d) 262 (N.Y., 1943) A-7 RODENTICIDES Heinemann v Barfield, 207 S.W. 58 (Ark., 1918) McCrossin v Noyes Bros. & Cutler, 173 N.W. 566 (Minn., 1919) Wolfsen v Wheeler, 19 P. (2d) 1004 (Cal., 1933) Larriraore v American Nat. Ins. Co.* 89 P. (2d) 340 (Okla., 1939) SALT SUBSTITUTE Davis v Radford, 63 S.E. (2d) 822 (N.C., 1951) Ihiteley v Webb's City, Inc., CCH 22, 268 (Fla., 1951) SERUM Brown v H. K. Mulford Co., 199 S.W* 582 (Mo., 1917) Murphy v Sioux Falls Serum Co., 184 N.W. 252 (S.D., 1921) Charles Loroml & Son v Globe Laboratories, 95 P. (2d) 173 (Cal., 1939) (See "Hair Shampoo") .SHOE FLUIDS Boyd v Frenches Chenical Corp., 37 F. Supp. 306 (N.Y., 1941) SHOE DYES Steber v Kohn, 149 F. (2d) 4 (111.,: 1945) SQAP Slattery v Colgate, 55 Atl. 639 (R.ll., 1903) Hasbrouck v Armour & Co., 121 N.W. 157 (wis., 1909) International Mercantile Marine Co. v Pels, 170 Fed. 275 (C.C.A. 2nd, 1909) Armstrong Packing Co. v Clem, 151 S.W. 576 (Tex., 1912) Barrango v Hinckley Rendering Co., 119 N.E. 746 (Mass., 1918) City of Chicago v Proctor & Gamble ISo., 9 F. (2d) 286 (Ohio, 1925) Taylor v Newcomb Baking Co., 59 N.E| (2d) 293 (Mass., 1945) Free v Sluss, 197 P. (2d) 854 (Cal. 1948) Murphy.Laboratories v Emery Industries, 95 F. Supp. 651 (Pa., 1951) SODIUM FLUORIDE Forney v Sears, 280 Pac. 56 (Wash.,!1929) David v McKesson & Robbins, Inc., 300 N.Y.S. 635 (1937) SODIUM HYPOCHLORITE Landers v Safeway Stores, 139 P. (2d) 788 (Ore., 1943) Alston v J. L. Prescott Co., 76 A. (2d) 686 (N.J., 1950) SQUQ30& Louisiana Oil Refining Corp. v Reed* 26 F. (2d) 14 (La., 1928), 38 F. (2d) 159 (La., 1930) McClaren v G. S. Robins & Co., 162 S.W. (2d) 856 (Mo., 1942) Maize v Atlantic Refining Co., 41 A* (2d) 850 (Pa., 1945) Kramer v R. M. Hollingshead Corp., ?5 A. (2d) 861 (N.J., 1950) SEB&m. West Disinfecting Co. v Plummer, 44 App. D.C. 345 (1916) Marosi v J. W. Robinson Co., 238 P. (2d) 78 (Cal., 1951) SJffiOLftSSM Cunningham v C. R. Pease House Furnishing Co., 69 Atl. 120 (N.H., 1908) smssjgusa Clement v Crosby & Co., Ill N.W. 745 (Mich., 1907) Wolcho v Arthur J. Rosenbluth & Co., 71 Atl. 566 (Conn., 1908) Gately v Taylor, 97 N.E. 619 (Mass.,; 1912) Genack Gorman, 194 N.W. 575 (Mich., 1923) Kratz v American Stores Co., 59 A. (2d) 138 (Pa., 1948) STRYCHNINE Campbell v Stamper Drug Co., 277 Pac* 770 (Colo., 1929) People's Service Drug Stores v SomerVille, 158 Atl. 12 (Md., 1932) SULPHATE OR ZINC Brown v Marshall, 11 N.W. 392 tMich.* 1882) Walton v Booth, 34 La. App. 913 (1882) SULPHUR (See "Lime-sulphur") A-8 SULPHURIC ACID Fisher v Golladay, 38 Mo. App. 531 (1889) Bark v Creamery Package Mfg. Co., 102 N.W. 793 (Iowa, 1905) Read Phosphate Co. v Vickers, 11 Tertn. App. 146 (1930) Gall v Onion Ice Co., 239 P. (2d) 48 (Cal., 1951) SffiLmJfiXIQSS Click v McKesson & Robbins, 10 F.R.D. 477 (Mo., 1950) SUPPOSITORIES Marcus v Specific Pharmaceuticals, GCH 22,133 (N.Y., 1948) TARTARIC ACID I-Kwes Rosa, 42 N.E, 303 (ind., 1895) TETRA ETHYL OF LEAD Lenz v Standard'Oil Co. of N.Y., 186; Atl. 329 (N.H., 1936) THALLIUM Wolfsen v Wheeler, 19 P. (2d) 1004 (Cal., 1933) THALLIIM ACETATE Smith v Denholm & McKay Co., 192 N.E. 631 (Mass., 1934) THIOGLYCOLLATE Briggs v National Industries, 207 P. (2d) 110 (Cal., 1949) Bennett v Pilot Products Co., 235 P. (2d) 525 (Utah, "1951) TRIHYDROXY BENZEIM Arnold v May Department Stores Co., 85 S.W. (2d) 748 (Mo., 1935) IRISODIJLM PHOSPHATE Taylor v Newcomb Baking Co., 59 N.E. (2d) 293 (Mass., 1945) TURPENTINE Peaslee-Gaulbert Co. v McMath's Adra'x., 146 S.W. 770 (Ky, 1912) VACCINE Cannen v Eli Lilly & Co., 32 N.E. (2d) 729 (Ind., 1941) VISCOSE RAYON Dempsey v Virginia Dare Stores, 186 S.W. (2d) 217 (Mo., 1945) ttiEEssssEiMjaiEaim Genesee County Patrons Fire'Relief Ass'n. v L. Sonneborn, 189 N.E. 551 (N.Y., 1934) M28=WJBS. See ''Herbicides") WOOD ALCOHOL Darks v Scudders-Gale Grocer Co., 130 S.W. 430 (Mo., 1910) A-9 SUPPLEMENTAL TABLE OF CASES ARRANGED UNDER THE SPECIFIC CHEMICALS AND CHEMICAL PRODUCTS INVOLVED ALCOHOL Mauro v Great A & P Tea Co., C.C.H. 22, 276 (N.Y., 1952) Park v Moorman Mfg. Co., 241 P. (2d) 914 (Utah, 1952) Cohan v Associated Fur Farms, 53 N.W. (2d) 788 (Wise., 1952) Burr v Sherwin-Williams Co., 258 P. (2d) 58 (Cal., 1953) ARSENIC Smith v Okexson, 73 A. (2d) 857 (N.J., 1950) BENZINE HEXACHLORIDE Wilson v Geigy & Co., 73 S.E. (2d) 487 (M.C., 1952) Gainey v Folkman, 114 F. Supp. 231 (Ariz., 1953) BLHflSffiffiJQUIMg Phillips v Whelan Drug Co., C.C.H. 22,286 (Pa., 1952) BLOOD PLASMA Parker y State, 112 N.Y.S. (2d) 695 (1952) affirming 105 N.Y.S. (2d) 735 (1951) CAFERGONE Webb v Sandoz Chemical Works, 69 S.E. (2d) 689 (Ga., 1952) QjMiij2aeewfi Kleffer v Blue Seal Chemical Co., 196 F. (2d) 614 (N.J., 1952) and 107 F. Supp. 288 (1952) Sapor!to v Purex Corp., 243 P. (2d) 910 (Cal., 1952) affd. 255 P. (2d) 7 (Cal., 1953) DDT Bowden v United States, 200 F. (2d) 176 (Va., 1952) Gainey v Folkman, 114 F. Supp. 231 (Ariz., 1953) Burr v Sherwin-Williams Co., 258 P. (2d) 58 (Cal., 1953) Pruett v Burr, 257 P. (2d) 690 (Cal., 1953) DETERGENTS Worley v Procter & Gamble Mfg. Co., 253 S.W. (2d) 532 (Mo., 1952) Frier v Procter & Gamble Distributing Co., 252 P, (2d) 850 (Kan., 1953) Hardy v Procter 8, Gamble, C.C.H. 22,340 (C.A. 5th, 1954) Parks v Atwood Crop Dusters, 257 P. (2d) 653 (Cal., 1953) DIBUTYL PHTHALATE B. M. Heede, Inc. v Roberts, 103 N.E. (2d) 419 (N.Y., 1952) 2,4-DICHLQROPHEMQXYACETIC ACID ' Heeb v Prysock, 245 S.W. (2d) 577 .(Ark., 1952) Southwestern Bell Tel. Co. v Smith, 247 S.W. (2d) 16 (Ark., 1952) Monsanto Chemical Co. v American Bitumuls Co., 249 S.W. (2d) 428 (Mo., 1952) Burt v Lake Region Flying Service, Inc., 54 N.W. (2d) 339 (N.D., 1952) Harris v United States, 106 F. Supp. 298 (Okla., 1952) affd. 205 F. (2d) 765 (C.A. 10th, 1953) Faixe v Burke, 252 S.W. (2d) 289 (Mo., 1952) Alexander v Seaboard Air Line R. Co., 71 S.E. (2d) 299 (S.C., 1952) Stull's Chemicals v Davis, 263 S.W. (2d) 806 (Tex., 1953) Pendergrass v Lovelace, 262 P. (2d) 231 (N. Mex., 1953) Adams v Henning, 255 P. (2d) 456 (Cal., 1953) Wasatch Chemical Co. v Leon, 259 P. (2d) 301 (Utah, 1953) Burr v Sherwin-Williams Co., 258 P. (2d) 58 (Cal., 1953) Pruett v Burr, 257 P. (2d) 690 (Cal., 1953) Black v Bennett, 55 N.W. (2d) 795 (Mich., 1952) A-10 (1953 Cum. Supp.) ex pl o s iv es Boncek v Pennsylvania R. Co., 105 F. Supp. 700 (N.J., 1952) Hopkins v E. I. Du Pont De Nemours & Co., 199 F. (2d) 930 (Pa., 1952) Pope V: Edward M Rude Carrier Carp., 75 S.E. (2d) 584 (W. Va., 1953) Koktavy v United Fireworks Mfg. Co., 117 K.E. (2d) 16 (Ohio, 1954) FUNGICIDES McClanahan v California Spray-Chemical Corp. 75 S.E. (2d) 712 (Va., 1953) Fein v Bonetti, ill N.Y.S. (2d) &40 (1952) Marrero v Gluck, 122 N.Y.S, (2d) 197 (1953) Shafer v Barbier, 259 S.W. (2d) 46i (Ky., 1953) Schilling v Roux Distributing Col, 59 N.W. (2d) 907 (Minn.., 1953) nBusims (See "2,4-D. . .") Smith v Okerson, 73 A. (2d) 857 (N.J., 1950) Wilson v Geigy & Co., 73 S.E. (2d) 487 (NX., 1952) Kentucky Aerospray v Mays, 251 S*W. (2d) 460 (Ky., 1952) Bowden v United States, 200 F. (d) 176 (Va., 1952) George v Cox, 261 S.W. (2d) 201 (Tex., 1953) Gainey v Folkman, 114 F. Supp. 2$1 (Ariz., 1953) LINIMENT Randall v Goodrich-Gamble Co., H N.W. (2d) 769 (Minn., 1952) reversing C.C.H. 22,279 (1952) PAINT Postell v Boykin Tool & Supply CO., 71 S.E. (2d) 783 (Ga., 1952) PARATHIOM Gainey v Folkman, 114 F. Supp. 2$1 (Ariz., 1953) PERMAPNT WAVE, LOTIONS Bish v The Employers1 Liability Assurance Corp., C.C.H. 22,652 (1952) Higbee v Giant Food Shopping Centpr, 106 F. Supp. 586 (Va., 1952) JMMJBY MEDICINE American Cyanamid Co. v Fields, C.C.H. 22,327 (W. Va., 1953) PROPANE GAS Willey v Pyrogas Co., 251 S.W. (2d) 635 (Mo., 1952) SODIUM HYPOCHLORITE Saporlto v Purex Corp., 243 P. (2d) 910 (Cal., 1952) affd. 255 P. (2d) 7 (Cal., 1953) SOLVERS Kieffar v Blue Seal Chemical Co., 196 F. (2d) 614 (N.J., 1952) and 107 F. Supp. 288 (1952) TOXAPHENE Kentucky Aerospray v Mays, 251 S.W. (2d) 460 (Ky., 1952) VfiPORJ^ERS Blissenbach v Yanko, 107 N.E. (2d) 409 (Ohio, 1951) A-ll (1953 Cum. Supp.) TABLE OF CASES (References are to pages. .Asterisked numbers refer to page where case is.digested in Part II) Abbott Laboratories v Lapp, 78 F. (2d) 170 (111., 1935) 13 Alcaro v Jean Jordeau, Inc., 138 F. (2d) 767 (N.J., 1943) 57* Alien v Young, 62 Ga. 617 (1878) 48 j Alston v J. L. Prescott Co., 76 A. (2d) 686 (N.J., 1950) 17, 23, 26, 70* American Oil Co. v Nicholas* 157 5.E. 75^ (Va., 1931) 25 Anderson, v Standard Oil Co., 164 I.S. 169 (Iowa, 1917) 65 Anglo-Celtic SMppiag Co. v Elliott & Jeffrey, 42 T.L.R. 297 (Eng.) 64 Ankenbrandt v Joachim, 173 111. App. 158 (1912) 20, 23 Armour & Co-, v least)*, 9 A. (2d) 572; (id., 1939) 19 Armstrong Packing CP. v Clan, 151 S.K. 576 (Tex., 1912) 9, 15, 24, 56* Arnold v May department -Stores Co., 85 SiM. (2d) 748 (Mo., 1935) 34 Ballard & Ballard Co. v Jones, 21 S. (2dj- 327 (Ala., 1945) 16 Barni v Kutner, 76 A. (2d) 801 (Del., 1950) 28 Barnes v;Murray, KLM.W. (2d). 123 (Wis., i 1943) 65 Barrango v Hinckley i Rendering Co., 119 Mj E. 746, (Mass., 1918 ) 22 , 56* Barrett v S.S.' Kresge Go., 19 A. (2d) 505: (Pa., 1941) 34 Beadles v Servel Inc., 100 M.E. (2d) 405 (III., 1951) 10 Beckett v F, H. WooWorth Co., 34 M.E. (2d) 427 (111., 1941) 32, 57* Bel v Adler, 11 8.E. (2d) 495 (Ga., 1940) 20, 32 Bender William Cooper & Nephews, 55 M.E. (2d) 94 (111., 1944) 13, 14, 43* Bennett v Pilot Products Co., 235 P. (2d) 525 (Utah, 1951) 16, 20, 34, 60* Bennett Drug Stores v losely, 20 S.E. (2d) 208 '(Ga,, 1942) 19 , 24 , 54* Beznor v Howell, 233 N.W. 7158 (Wis., 1930) 64 Bianchi v Denholm & JJbftey Co., 19 M.E. (2d) 697 (Mass., 1939) 30, 32, 34, 57* Binion v Sasaki, 41 P, (2d) 5$5 (Cal,, 1935) 31* 32 , 74* Blanchard v Kronick, 169 N.E. 438 (Mass., 1929) 22, 26, 32 Blizzard Bros, v Growers' Canning Co,, 132 M.W. 66 (Iowa, 1911) 35 Blood Balm to. v Gooffs?,, 10 SJB. 118 (Ga., 1889) 9, 12, 15, 51* Blumer v Hauer, 230 Pec. 964 (Cal., 1924) 32 Blmetti v Carman & Co., 31 N'.Y.S. (2d) 748 (1948 ) 70* Bp*pk v KatS Drug L27 P. (2d) 506 (Ma., 1942) .21 Bcmfker Fertilizer Co. v Wallingford, 111 Atl. 329 (Me., 1920) 32 , 48* Boyd v Frettchea Chemical Carp., 37 F. Supp. 306 (N.Y., 1941) 12, 13 , 66* Beryl aton v Armour & Co.* 12 $.3. (2d) 34 (S.C., 1940) 26 Btradt t Hollaway* 136 M.E. 254 (Mass., 1922) 34 Brady v Sut'Mr Butte Canal CO., 278 Pac. 5Q5 (Cal., 1929) 43 Briggs v National Indpstriart, 207 P. (2d) 110 (Cal., 1949)' 13, 16, 34, 59* Bream v Bigelow, StffiH. (SH) 542 (Mass., 1949) 10 Brota v GodbftV If|g. Co., C.C.H. 22, 252 [N.Y., 1951) 36 Brown v H. If. JfalfefKlCd., 9. S.W. `582 (Ho., 1917) 8, 9, 13 BMii ffMsrelttU, 11 H.W. 392 (Wish., 1882) 17, 21, 51 Brown v Sioux City, 4$ !Uf, (2B) 853 (f , 1951) 47* Brunswig v ffeite, 8 Sill. 85 (Tta., 1888) 1, 51 Hndlianan v ju$m, 83 A. (2d) !9[LX (D.C., 1 >1) 30 Sley v Btfell CiianlfaX C0.a 89 P. (2d) 53 (Cal., 1939) 32, 35, 49* y v Ey~Tb, 389 PM.S, 80S (M.Y., 193 ) 15 Burt Cxeammsffy Papfs&fte Ifg, Cb., 102 M79l3 (Iowa, 1905) 9, 11, 12, 24, 61* BurtWdt ftwttat & Jo., 161 Atl. 3S5 (C 1932) 18 Burnt BaWMto-Ooherty Co., 170 Atl. 511! (Me., 1934) 28 Bujrns Vaughn, 32k S'.W. (2d) 365 (Ark., |,949) 45* Cahill v InttBta, Inc., 203 W.Y.S. 1 (1924) 9, 14, 15 Campbell v Stamper Drug Co., 277 Pac. 770 j (Co: 1929) 19, 21, 24, 53* Catnpo Scofield, 95 M.Y.S. (2d) 610 (1950) 28, 30, 75* Carmen v Eli Lilly: fiJttd., 32 N.E. (2d) 729 (ind., 1941) 13, 14 Carter v McGill, 89 S.E. 28 (MX., 1916) 49 Carter v Yaxdley & Co., 64 M.E. (2d) 693 (Mass.,. 1946) 9, 10, 16, 27, 28, 30, 34, 46, 58* Gatlin v Unit* Oil Co*. 161 Pac, 29 (fex.l 1916) 25 Cbanin v Chevrolet Motor Co., 89 E. (2d) 889 (111., 1937) 28 Chapman v Defsptelt Cttll Corp. 77 D.Eu (2d) 883 (111., 1948) 10, 12, 15, 16 , 65 Chapman Chemical Co. v Taylor, 222 S.W. (2d) 820 (Ark., 1949) 4, 7, 8, .10, 15, 18, 19, 46!*, 4T Charles- Lactaan-Co. v Hercules Powder Co.^ 79 F. Supp. 206 (Pa., 1948 ) 4 , 5 , 25 , 70* B-l Charles Loromi & Son v Globe Laboratories, 95 P. (2d) 173 (Cal., 1939) 4, 35 Gicarelli v Lipshetz, 8 Conn. Supp. 526 (1940) 32, 34 City of Chicago v Proctor & Gamble Co., 9 F. (2d) 286 (Ohio, 1925) 31 Cleary v John M. Maris Co., 19 N.Y.S. 38 (1940) 34 Clement v Crosby & Co., Ill N.W. 745 (Mich., 1907) 9, 12, 61* Cliff v California Spray-Chemical Corp., 257 Pac. 99 (Cal., 1927) 10, 13, 16, 28, 38*, 65 Coaklay v Prentiss-Wabers Stove Co., 195 K.W. 388 (Wis., 1923) 17 Cohn v Saenz, 211 S.W. 492 (Tex., 1919) 65 Cole, v Hew England Tree Expert Co.., 16$ Atl. 742 (R.I., 1933) 40* Collins Baking Co. v Savage, 150 So. 3^6 (Ala., 1933) 26, 23 Colonna v. Rosedale -Dairy Co., 186 S.g. |94 ,(Va., 1936) 28 CaBnissioners of State Insurance Fund vi City Chemical Corporation, 48 N.E. (2d) 262 (N.Y., 1943) 10, 16, IS, 19, 67* Cooper v Kolar, C.C.H. 22, 132 (ill., ]j948) 16 Corona Coal Co. v Sexton, 105 So, 716 (Ala., 1925) 21 Cream v Inecto, Inc., 99 N.Y.L.J. 2283 i(1938) 34 Crochet v De Luca, 53 S. (2d) 203 (Let,I 1951) 71 Cundiff v F. W. Woodworth Co., 290 Ohio! Law Abstract 123 (1938) 22 Cunningham v C. R. Pease House Furnishing Co., 69 Atl. 120 (N.H., 1908) 18, 62* Darks v Scudders-Gale Grocer Co., 130 $.W. 430 (Mo., 1910) 14, 21, 52* Dart v Pure Oil Co., 27 N.W. (2d) 555 (tenn., 1947) 24, 69* David v McKesson & Robbins, .Inc300 N.Y.S. 635 (1937) 16, 53* Davis v Guexnieri, 15 N.E. 350 (Ohio, 1887) 21, 51* Davis v Rad&Ord'i 63 S.E. (2d) 882:()*,C.j, 1951) 6 , 31, 32 , 36 , 54* Davis Co. v Bertrand: Seed CO., 271 Bac.j 123 (Cal., 1928) 35, 72* Dempsey v Virginia Dare Stores,; 186' S (2d) 217 (Mo., 1945) 13, 74* Dent v Murphy, 13 ;Sy. Law Rep. 46; ( ) 32, 48* De Vers v Parted, ,23 N.W. (2d) 584 (Mi 1946 ) 59 , 69* DSZeeuw v Fo* Chemical Cp.,, 179:JUfi (low, 1920) 32 Douglas V'Dertiej Etec. deal .Co., 22, M. .(2d) 195 (Ohio, 1939) 65 Dmv-firug Co.: v,: 13 f.S. . (Ohio, 1936) 18 Dronette v.Isamt 'Eros., 100 So.,411 (La.,' 1924) 65 DuBois v Luthnai, 126 s.f, 147 (Iowa, 1,910) 65' Dwabrow v Ettifi^er, 44 F. Supp. 763 1942) 31, 32, 54* Duteik Mill Sardes v J. J. Orulleatans S| Sons, 238 S.W. (2d) 232 (Tex., 1951) 35 E, I. DuPont de Nemours v Baridon, 73 F. (2d) 26 (Ic 1934) 4, 6, 8, 10, 23, 25, 35, 40*, 44 E. I. DuPont de Nemours & Co., v Wright, 146 F. (2d) 765 (Ky., 1944) 10, 13, 68* E. 0. Painter Fertilizer Co. v Ki1-Tone Co., 143 Atl. 332 (N.J., 1928) 36, 49* Eades v SfenseryAdapis Paint Co., 60 S.E (2d) 543 (Ga., 1950) 10, 14, 15, 75* Ebers v General Chemical Co., It N.W (fed) 176 (Mich., 1945) 3, 10, 14, 25, 27, 28 9 29, 35:,. 44* Bckerd's Inc. v McGhee, 86 S.W. (2d) S7jo (Tenn., 1935) 19 , 23 , 53* Edelstein v Cook, 140 N.E. 765 (Ohio, 1&23) 21, 26 Elizabeth Arden, Inc., v Brown, 107 F. !(2d) 938 (Pa., 1939) 16 , 22 , 57* Ellis v Llnetaark, 225 N.W. 395 (Minn., 1929) 21, 24, 52* Bills v O^kin'Esffeetmlnating Co., 143 S.p. (2d) 108 (Tenn., 1939) 23 , 41* Ellis V Republic Qil Co., 110 N.W. 20 (jlowa, 1906) 11 Escola v Coca Cola Bottling Co., ISO P.i (2d) 436 (Cal., 1944 ) 8 F. E. Atteamc & Co. v Pancreon Mfg. Corp, 22 F. (2d) 749 (Mass., 1927) 30 Fairbanksj Morse & Co. v Consolidated Fisheries Co., 190 F. (2d) 817 (Del., 1951) 25, 70 Fairbanks, Morse & Co. v Gambill, 222 S.W. 5 (Tenn., 1920) 65 Farley v Edward E. Tower & Co., 171 N.E;. 639 (Mass., 1930) 10, 13 , 20 , 24 , 56* Farrow v Andrews & Co., 67 Ala. 96 (l8Sjl) 29, 48 Fink v Viking Refrigerators, 147 S.W. (2d) 124 (Mo., 1940) 28 Fisher v t$llady, 38 Mo, Apjp. 531 (1889) .19, 20, 51* Fitzgerald v Brooklyn Institute of Arts: and Sciences, 162 N.Y.S. 625 (1916) 38* Fleetwood v Swift & Co., 108 S.E. 909 (Ga., 1921) 19 Flexjairj, Joe, v iLindeman & Co., :82 A. (fad) 450 (M.J., 1951) 32 Flynh v Bedell Co., 136 N.E.; 252 (Mass., 1922) 32, 34 Foxniiiy: v $ears, 1280 Pac. 56 :(Wa#h, 192)?) 20 , 52* Fort)Wayne Drug Co. v Flemicin, 175 M.E.i 670 (Ind., 1931) 13 , 20 , 64* Ft. forth<3. %. Co. v Broraij '173' S.W. 943 (Tex., 1914) 38 Frasier V Ayres, 20 S, (2d) 754 (La., lfe6) 26, 69* Fred^ndall v Abraham & Straps, Ind.1, 181 N.E. (2d) 11 (N.Y., 1938) 33, 66* Free v SXeas, 157 0. (2d) 854 (Gal., 1948) 3, 28, 29, 31, 59* B-2 r r v l Gall v Union Ice Co., 239 P. (2d) 48 (Cal., 1951) 10, 13, 18, 20, 23, 25, 71* Gately v Taylor, 97 N.E. 619 (Mass., 1912) 11, 12, 24, 62* Gaw v Lake Erie Chemical Co., 11 N.E. (2d) 982 (ill., 1937) 23 Ganack v Gorman, 194 N.W. 575 (Mich., ito) 9, 13, 63* General Oil Co. v Crowe, 187 S.E. 221 (Ga., 1936) 65 Genesee County Patrons Fire Relief Ass'rl. v L. Sonneborn, 189 N.E. 551 (N.Y., 1934) 10, 13, 64* Gerkin v Brown & Sehler Co., 143 N.W. 48 (Mich., 1913) 34 Getz v Standard Oil Co., 210 M.W., 78 (M4niw, 1926) 12 Gibson v California .Spray-Chemical Corp., 188 p, (2d) 316 (Wash., 1948) 4, 14, 25, 29, 30, 35, 44# Gibson v Terbert, 88 N.W, 443 (Iowa, 1901) 20, 51* Gibson Gireo. V Bdsh, 1 S.W. (23) 88 (Ark., 1928) 65 Gilman v.Glty af Cotaord, 195 Atl. 672- (tt.H., 1937) 40 Click v McKesson & Robbins, 10 F.R.D. 477 (Mo., 1950) 27 Goode v Pituxee Oil Corp., 286 S.W. 1009 |{Axk., 1926 ) 65 Gariy v Pah American Petroleum Corp., 193 So. 27 (Miss., 1940) 10, 16, 18, 19, 65 Graham v Jordan Mari* Co., 67 N.E. (2d) |404 (Mas., 1946) 31, 32, 34, 58* Gray v Gurtey Seed & Nursery Co,, 231 KJW, 940 (S.D., 1930) 32, 73* Greco v S.g, Nresge Co., 12 N.E. (2d) 5^7 (N.Y., 1938) 36 Green v figteitable Powder Mfg. Co., 94 F.j Supp. 126 (Ark., 1950), affirmed, 95 F. Supp 127 (Ark., 1991) 10, 18, 21, 28, sq, 75* 'Griffin V Taylor, 16 S.E. (2d) 186 (Ga.,j 1941) 32, 33 , 49* Grinnell v-Carbide 4 Carbon Chemicals Cdrp., 276 N.W. 535 (Mich., 1937) 23 Gulf Refining Co. v Williams, 185 So. ait- (Miss,, 1938) 10, 17, 66* Gulf Refining Co. of La. v Jinrlght, 10 |f . (2d) 306 (Ala., 1925) 9, 11, 63* Guyton, v S, H. Kress & Co., 5 S.E. (2d) 295 (S.C., 1939) 20, 57* Hackett v Pratt, :32 111. App. 346 (1893)! 23 Hallertbeck-v.S. Wander & Sons Chemical Cb., 189 N.Y.S. 334 (N.Y., 1921) 16, 22, 63* Haller v Radmam, 292 N.Y.S. 586 (1937) 32 Halloran v Parke, Davis & Co., 280' N.Y.S. 58 (1935) 13 , 53* Hanmopd Ranch Cbrp. v Dodson, 136 S.W. (pd) 484 (Ark., 1940) 42* Han.sford:"1s':Adtat*.' v -Payne & Co.,. 74 Ky. 380 (1875) 21, 51 Harder v Maloney, 2$ N.W, (2d) 830 (Wis., 1947) 24, 44* Kasbroucfc v Amour & Co., 121 H.W. 157 (Wis., 1909 ) 9, 10, 16 , 22 , 56* Hankins v Pemberton, 51 H.Y. 198 (1872) 31 Hin'#ann v Barfield, 207 S.W. 58 (Ark., 1918) 22 Henderson v 8s*ee, 50 A. (2d) 45 (Me., 1(946) 32 , 33 , 75* Hentfajcson v fetiotol Drug Company, 23 A. (2d) 743 (Pa., 1942) 18 , 26 , 27 , 32 , 54* Hendry v Judge & Dolph Drug Co., 245 S.W. 3.58 (Mo., 1922) 19, 24 Henry v Crto);, 195 sj.Y.S. <s42 (1922) 9, 13, 64 Hertzler v(fanabum,, 200 H.W+ 155 (Mich., 1924) 26 Hoar Rasmusebii 2 H.W. 652 (Wis., 1936) 21, 53* Hodges v 3 S.E. (2d) 99 (Ga., 1939.) 65 Kelt V Mumdell, 112 P. (2d) 1039 (Colo., 1941) 43 Hoover v Uljsh Miirsary Co. 270 (Utah, 1932) 35 Hourissn V Ibu9 110 Masts. 470 (1872) 61 Howard v Jstettbs' Pharmacy Co., 189 S.E. 373 (Ga., 1937) 22 , 53* Ho v Route, 4 M.E. 303 (Jrid., 1895) 21, 51* ' Howson v Fds^efr Beef Co., 177 Atl. 656 (M.H., 1935) 26 Hruake V Part!#, Davis & Co., 6 F. (2d) 5f6 (Mo., 1925) 9, 13, 14, 15, 52* Hubbard l-Wtiillzer Co. of Baltimore City v American Trona Corp., 120 Atl. 522 (Md, ito) 29, 30, 49* Huckleberry v Missouri Pac. Ry. Co., 26 S.W. (2d) 980 (Mo., 1930) 23, 65 Hunter v Allied! Mils, 192 S.E. 356 (S.C),, 1937) 64 Huset v 3. I, Case threshing Machine Co.j, 120 Fed. 865 (C.C.A. 8th, 1903) 9 Hyman v Rtwlcln Products Corp., 100 N.Y.Si (2d) 937 (N.Y., 1950) 27 Ingraham v Associated Oil Co., 6 P. (2d) 1645 (Wash., 1932) 3, 29, 33, 35, 40* International Mercantile Marine Co. v Fejs, 170 Fed. 275 (C.C.A. 2nd, 1909) 13, 56* J. I. Case Threshing Machine Co. v Dul.worth, 287 S.W. 994 (Ky., 1926) 28 J, R. Watkins Co. v. Raymond, 184 F. (2d) 925 (Minn.,' 1950) 16 , 23 , 59* Jeanes v.Holtz,,.211 P. (2d) 925.(Cal., I.^49 ) 45* Jones v Gedrgs, 61 Tex. 345 (1884) 32, 33 37* Kapp v E. I. DuPont de Nemours & Co., 57 F. Supp. 32 (Mich 1944) 14, 68* Karr, v Inectto, Inc., 160 N.E. .393 (N.Y., 1928) 16, 56* Kennedy v Claytons, 227 s.71. (2d) 934 (Arif., 1950) 2u3,, 46* Kennedy v Cornhasfcer Hybrid Co., 19 N.W. (2d) 51 (Neb 1945) 35 Kennedy v Plank, 97 N.W. 895 (Wis., 1904} 21 B-3 Kentucky Independent Oil Co. v Schnitzler, 271 S.W. 570 (Ky., 1925) 9, 24 King v Ohio Valley Terminix Co., 214 S.Sf. (2d) 993 (Ky., 1948) 42 ' Knoefel v Atkins, 81 N.E. 600 (ind., 1907) 21, 51 Kohlman v Jefferson Bottling Co., 192 SO. 113 (La., 1939) 16 Kolberg v Sherwin-Williams Co., 269 Pac. 975 (Cal., 1928) 9, 14, 15, 22, 39* Kramer Carbolineum Wood Preserving Co,, 177 Pac. 771 (Wash., 1919) 10, 38* Kramer v R. M,, Hollingshead Corp,, 75 A. (2d) 861 (N.J., 1950) 17 , 26 , 70* Kratz v American Stores Co., 59 A. (2d) 138 (Pa., 1948) 20, 70* Kusick v Thorndike & Hix, Inc., 112 K.EJ 1025 {Mass., 1916) 17, 22, 26, 62* Landers v Safeway Stores, 139 P. (2d) 788 (Ore., 1943) 32, 34, 67* Landrsth v Wyckoff, 73 N.Y.S. 388 (1901) 35 Larrimore v American National Insurance Co., 89 P. (2d) 340 (Okla., 1939) 19, 42* Larson v Farmers' Warehouse Co., 297 Pap., 753 (Wash., 1931) 32, 73* Larson v Inland Steel Co.; 255 Pac... 919'(Wash., 1927) 35 Lawson v The Benjamin Ansehl Co., ISO slw* (2d) 751 ;(Mo,,, 1944) 13 , 58* Lenarts v Rapidol Distributing Corp., 3,'F.R.D. 42 (N.Y., 1942) 27 Lank v Speeia, 213 P. (2d) 47 (Cal., 1949) 45* Lenz V Standard Oil. Co. of. N.Y., 186 Atl. 329 (N.H., 1936) 11, 16, 65* Leonard v Caxletoh & Hovay Co.., 119 M.Bi 674 (Mass., 1918) 31 Leonard Seed.,Co. v Craary Canning Co., 132. S.W. 902 (Wis., 1911) 35 Lever Bros. Co. v1 Proctor & GambleIffi,!Co., 38 F. Supp. 680 (Md., 1941) 27 Levin v Muses, 194 S.W. 672 (Neb,, 1923) 20, 52* Levy v Roux Laboratories, 107 N.Y.S. (2$), 585 (1951.) 27 Lindroth v Walgreen Co., 87 N.E. (2d) 3*7 (111., 1949), affirmed, 94 N.E. (2d) 847 (111,,, 1930.)" 29 Litton v Travelers Ins. Co. 88 F. Supp.|76 (La., 1950) 23, 26 Longo -v Touraine Stares, 66 N.E. (2d) 792 (Mass., 1946) 34 Louisiana 'Oil Refining Corporation v Reed, 26 F. (2d) 14 (La., 1928), 38 F. (2d) 159 (La., 1930) 1ft, 14, 63*' r Louisville 8i N. R. Co. v Gillespie, 172, S.W. (2d) 1015) (Tenn., 1943) 38 Lumbrazo v (foodruff, 175 N.E. 525 (N.Y.l 1931) 35, 73* Lurtdfaexg V Boiort, 194 P. (2d;) 454 (Ariz(, 1948 ) 45* Luthiinger h oore, 190 P. (2d) 1 (Cal-j, 1948) 7,8, 18, 23, 45*, 46 MacPherson v Buick Motor Co.., Ill N.E 050 (N.Y., 1916) 5, 8, 9, 15, 46 Maher v Clairol, Inc., 31 N.JY.S, (2d) 7! 1 (1941) 57* Mdhoney v Shaker Square Beverages, 102 .E. (2d) 281 (Ohio, 1951) 17 Maize v Atlantic Refining Co., 41 A. ( ) 850 (Pa., 1945) 2, 10, 13, 24, 26, 67, 68* ManglesdoxfrSeed Co. v Busby, 247 Pac. 10 (Okla., 1926) 35, 72* Mangiesdosf 'Seed'0.. v Williams',.- 247 Pa 413,(Okla,, 1926) 35, 72 Manning Mlg, Co. v Martol.Products Corp| , 99 F. (2d) 813 (Vt.,, 1938) 4, 19, 32, 66* Marcus v Specific Efcaxinacsuticals, C.C 22,.133 (N.Y., 1948) 14 Mari guy .172 So.. 808 (La., 19. ) 19, 24, 53* Marxist v BearliBad''4 R. H.. ^Salvage Co. S.E. (2d) 3 (N.C., 1949) 22, 32, 70* Marosi v J. li flobiinaon Co. , 238 P. ( 78 (Cal., 1951) 17, 23, 76* Marsh v U$k Hardware Go.., 132 Pac. 241 lash., 1913) 9, 14, 21, 22, 72* Martin v 4aabl*o JDrufi Co. 7 la. App.i 262. (1928) 19 Mason v CSja&jeU, J}5 Gt,, 972 (Va., 18^0) 32 , 48 . Massey v Mdspn Co,, 37 N-Y.S. (2d) 571j (1942) 28 Mautino v Piefcadalje Supply Co,, 13 A. (2tt) 51 (Pa., 1940) 19 McAleavy v lows, 49 N,,?J. (2d) 487 (Wis., 1951) IS, 19, 75* McCarthy v Gulf Refining Co., 107 S.E. 92 (Ga,, 1921) 65 McClaren v <<5. S. Rtjbins & Co., 162 S.W. (2d) (356 (Mo., 1942) 2, 12, 13, 19, 26, 67* MeCrossin:v,MOyes fteosi & Cutler, 173.N .W. 566 (Minn., 1919) 14, 20, 38* McGee v Bwatt, 34 S.E. (2d) 577 (Ga 1945) 32, 33, 43* McKennon v Jones, $44 S.W. (2d) 138 (A. , 1951) 23, 47* MeK3)nzie fowell, 22 S.E. (2d) 735 ( 1942) 38 McKibbin f F. E. Bar & Co., 113 N.W. 1 (Neb., 1907) 19, 52* MeLawson y Paragon Refining Co., 164 E 668:. (Mich., 1917) 65 Medeiros v focp'-*Co|a Betitling Co. Of Tdrlock, i35 P (2d) 676 (Cal., 1943) 26 Mel!ink v Pbllard, 426 P. (2d) 69 (Cal., 1951) 47* Metrdhants* ffenfc v ihermam, 110 So, 805 (Ala., 1926) 12, 65 Midland Valley R. Co. vIRtppe, 161 Pac. 233 (Okla., 1916) 37* Mile A* tatma 4 Co., 73 P. (2d) 1260 (Cal., 1937) 41* Miller v Bcpfatay Hflfi & flattie Powder c4* 293 N.W. 4 (Iowa, 1940) 31 Miller v feetoasio Sided & Plant Co., 322 Pac. 817(Cal., 1924) 35 linger Scjtafpiak, 5 N,Y.S. Kept. 891 (ff.Y.,1886) 51 WirtiftiUa V Pv|dtoCe lee Cream Co., 144 Atl. 884 (R.I., 1929) 28 Missouri, K & I By* Co. v Rose, 160 Pad. 734 (Okla., 1916) 37* Mc)d$l Drug Co. v Pattern, 270 S.W. 998 (Ky., 1925) 21 Moehlenbxiwk v Parke, Davis & Co., 169 M.IS. 541 (Minn., 1918) 24 B-4 r 7/ c v i { Mondine v Sarlin, 81 P. (2d) 903 (Cal., 1938) 23, 65 Moores v Rumsey, 36 P. (2d) 15 (Okla., 1934) 43 Moran v Dake Drug Co., 134 N.Y.S. 995 (1912) 21 Morris v Bradley Fertilizer Co., 64 Fed. 55 (C.C.A. 3rd, 1894) 48 Morrison v Lee, 113 N.W. 1025 (N.D., 1907) 65 Mossrud v Lee, 157 N.W. 758 (His., 1916) 19, 22, 24, 37* Murphy v Sioux Falls SeruOi Co., 184 M.W. 252 (S.D., 1921) 64 Murphy Laboratories v Eroefy Industries, 95 F. Supp. 651 (Pa., 1951) 29, 30, 35, 59* National Saving Bank v Wapi, 100 U.S. 195 (1880) 9 Nelson v Armour Packing Co., 90 S.W. 288 (Ark., 1905) 28 Newell v Reid, 155 M.W. 362 (Mich., 1915) 22, 72* Noonan v Great Atlantic & Pacific Tea Co., 135 Atl. 822 (N.J., 1927) 23 Noone v Fred Perlberg, In5, 49 N.Y.S. (2d) 460 (1944), affirmed without opinion, 60 M.E., (2d) 839 (M.f., 1945) ID, 13, 74* North American Fertilizer!Co. v Combs, 212 S.W. (2d) 526 (Ky., 1948) 28, 29, 30, 50* Norton v Sewall, 106 Mass; 143 (1870) 18, 21, 51 Olena v Standard Oil Co., 135 Atl. 27 (N.H., 1926) 12 O'Neal v Teeter, 11 F.R.D. 180 (111., 1951) 27 Orr v Shell Oil Co., 177 S.W. (2d) 608 (Jfo., 1943) 10, 13 , 23 , 42* Osborne v RcMasters, 41 N ,W. 543 (Minn., 1889) 19 Pabellon v Grace Line, InC., 94 F. Supp. 989 (N.Y., 1950), reversed 191 F. (2d) 169 (N.Y., 1951) 13, 30, 70*, 71* ' Pannella v Reilly, 23 N.E. (2d) 87 (Mass., 1939) 41* Paolinelli v Dainty Foods Manufacturers,, Inc., 54 N.E. (2d) 759 (ill., 1944) 26 Parker v State,. 105'N.Y.S. (2d) 735 (1951) 18 , 20 , 54* Parton v Phillips Petroleum Co., 107 S.W. (2d) 167 (Mo., 1937) 23, 65* Patterson v Orangeburg Fertilizer Co., 108 S.E. 401 (S.C., 1921) 15, 30, 35, 48* Pauli v McBride, 263 N.W. 877 (Mich., 1935) 20, 65 Payne v R.'H. White Co., {9 N.E. (2d) 425 (Mass., 1943) 34 Pazdernlk v Pride, 291 M.W. 798 (Wis., 1940) 65 Pearl v William Filene's Sons Co., 58 N.E. (;2d) 825 (Mass., 1945) 28 Pease v Sinclair Refining Co., 104 F. (2d) 1S3 (N.Y., 1939) 3, 13, 22, 24, 66 Pejsslee-Gsulbert Co. v Meath's Adm'r., 146 S.W. 770 (Ky., 1912) 20, 62* Pebple's Service Drug Stores v Somerville, 158 Atl. 12 (Md., 1932) 19, 53* . Peplinski v Kle&nKe* 299 i!.W. 818 (Mich., 1941) 65 Peterson v Standard Oil Co,, 106. Pac. 337 IQre., 1910) 9, 11, 62* Petzold v Roux Laboratories.., Inc., 11 N.Y.S. (2d) 565 (1939) 10, 16 , 57 Fhllbriek v Kendall, 88 Atl. 540' (Me., 1913): 30 Phillips v:Doyle, 207 P. 2d) 465 (Ka., 1949) 21, 65 Phillips v Sharp, 185 N.E,. 562 (Ohio, 1932) 33 , 35 , 73* Pierte Oil.Corporation v Taylor, 227 S.W. 420 (Ark., 1921) 65 Pierson v Roux Laboratories, C.C.H. 22, 242 (N.Y., 1951) 27 Pietius v J. R. Watkins Co., 38 N.W. (2d) 79i9 (Minn., 1949 ) 30 , 33 , 59* Pijapirtello v Swift & Co., 170 N.E. 530 (N.Y., 1930) 35 Pine Grove Poultry Farm v Newtown By-Products Mfg. Co., 162 N.E. 84 (N.Y.,'1928) 10, 12, lfr,'72* Poplar v Bourjois, Inc., 00 N.E. (2d) 334 (N.Y., 1948) 11, 19, 58* Poplar v Hpchschild, Kohn & Co., 24 A. (2d) 783 (Md., 1942) 28, 32 Prinsen v Russos, 215 N.W. 905 (Wis., 1927) 28 Puratich v Pacific Maxine Supply Co., 51 P. (2d) 1080 (Wash., 1935) 35 Putney v Cm Bod Co., C.C H. 22,-198 (Mp., 1950) 27 Pyle v Eastern Seed Co. (98 S.W. (2d) 562 (Tex., 1946) 35 Rachlin v Libby-Owens-Ford Glass Co., 96 F. (2d) 597 (N.Y., 1938) 28 Radcliff v Gunby, 46 Ga., 464 (1871) 48 Ramsey v Standard Oil Co. 120 S.E. 331 (N.C., 1923) 11, 65 Rasmussen v Benson, 280 N ,,W. 890 (Neb., 1938:) 20 , 22 , 74* Read Phosphate Co. v Vickers, 11 Tenn. App. 146 (1930) 10, 13, 22, 24, 63* Reif v Morrison, 100 P. (2d) 229 (N.Mex., 1940) 43 Reiss;v Kirkman & Son, 273 N.Y.S. 7 (1934) 2J, 64* Reynolds v Blnding-Stevens Seed Co., 67 P. (2d) 440 (Okla., 1937) 35 Reynolds v SUn Ray Drug Co., 52 A. (2d) 666 (N.J., 1947) 32, 34, 58* Richardson v DeLuoa, 53 S, (2d) 199 (La., 1951) 12, 13, 19, 24, 71* , *RiChman v Foilman^ 23 N.y Is . (2d) 917 (1940), affirmed, 36 N.E. (2d) 908 (N.Y. 20 66 Rigge v Standard Oil Co.,1130 Fed. 199 (Minn., 1904) 65 Ribgin v Federal Cartridge Corp., 204 S.W. (2d) 94 (Mo., 1947) 15 Ripgstad v I. Magnin & Coi, 239 P. (2d) 848 (Wash., 1952) 20, 22, 32, 35, 76* Roberts v Anheuser-Busch brewing Ass'n., 98 N.E. 95 (Mass., 1912) 28 1941) B-5 Rocky Mountain Seed Co. v Khorr, 20 P. (2d) 304 (Colo., 1933) 35, 73* Ross v Northrop, King & Co., 144 N.W. 1124 (Wis., 1914) 35 Ross v Porteous, Mitchell & Braun Co., 3 A. (2d) 650 (Me., 1939) 34 S. A. Garrard Co. v Fricker, 27 P. (2d) 678 (Ariz., 1933) 40* S. H. Kress & Co. v Lindsey, 262 Fed. 331.(C.C.A. 5th, 1919) 28 Saganowich v Hachiklan, 35 A. (2d) 343 (Pa., .1944) 17, 18, 22, 23, 68* St. Louis-S.F.Ry. Co. v Fletcher, 253 S.W. 12 (Ark., 1923) 38 Sawyer v Pine Oil Sales Co., 155 F. (2d) 855 (La., 1946) 13, 16, 29, 30, 69* Schfranek v Benjamin Moore.& Co., 54 F. (2d) 76 (N.Y., 1931) 10, 16, 73* Shersiex v Crowe, 186 S.E. pA (Ga., 1936) 65 Sherwin^Wi 11lams Co. of Texas v Offenhauser, .42 S.W. (2d) 859 (Tex., 1931) 30, 33, 39* SigrocInski v . I. Du Pont de Nemours & Co., 25 F. Supp. 706 (Pa., 1938) 26, 28, 74* Simpson v American Oil Co. j, 14 S.E. (2d) 638 (N.C., 1941) earlier opinion in 8 S.E. (2d) 813 (NX., 1940)! 3 , 6 , 28 , 29 , 33, 42*, 54 Sims v Howell, 49 Ga. 620 (1873) 48 Sinclair Refining Co. v Henderson, 122 S.W. (2d) 580 (Ark., 1938) 22, 65 Sinclair Refining Co. v Pile, 221 S.W. (2d) 12 (Ark., 1949) 12, 16, 65 Sinclair Refining Co. v Tompkins, 117 F. (2d) 596 (Miss., 1941) 23, 67* Singer v Often, 87 (f.V.S. (2d) 686 (N.Y., 1949) 16 , 20 , 34 , 54* Sfeimn v Reuttex, 97 N.W. 162 (Mich., 1903) 64 Slattery v Colgate, 35 Atlt 639 (R.l, 1903) 10 Slavin V J^gett & Co., 177 Atl. 120 (N.J., 1938) affirmed, 186 Atl. 832 (N.J., 1936) 19 Smith v Denholm & McKay CoL, 192N.E. 631 (Mass., 1934) 32, 33, 34, 56* Smith v Gimbafl pros., Inc. and Soclete Coiffure, Inc., 259 N.Y. App. Div. 1037 (1940) (memo opinion) 32 Smith v Hays, 23 111. App. 244 (1887) 21, 51 Smith v Pttyne, 206 Pac. 716 (Utah, 1922) 38* Smith v Peerless Glass Co., 181 N.E. 576 (N.Y., 1932) 10, 15, 17 Smith v S, S. Kfresge Co., 79 F. (2d) 361 (Mo., 1935) 20, 32, 73* Smith v WUliamls, 45 S.E. 394 (Ga., 1903) 28 Spry v Kiser, iktt S.E. 708: (NX., 1920) 3.7 Square v loMl Farm Dairies, 55 T.L.R. 384 (Eng., 1939) 28 Stasek v Baihtter Coffee Co.', 159 N.W. 945 (Wis., 1916) 19 Standard Oil Co. v Lyons, 130 F. (2d) 965 (Iowa, 1942) 13, 67* Standard Oil Co. Robb, 149 N.E. 567 (Ind., 1925) 12 Standard Qil Co. v Tierney1, 17 S.W. 1025 (Ky., 1891) 12, 23, 61* Standard Oil Co. of La. v Roach, 94 S.W. (2d) 63 (Tenn., 1935) 65* Stebex v Kota, 149 F. (2d);1 4 (111., 1945) 10 Stevenson v B. B, Kirkland Seed Co., 180 S.E. 197 (S.C., 1935) 31, 35 Stone v Shaw Supply Co., 36 P. (2d) 606 [One., 1934) 19, 64* Stdrie v Sinclair Refining Co., 196 N.W. 339 (Mich., 1923) 18, 19 St swell v Standard Oil Co.,, 102 N.W. 227 (Mich., 1905) 11, 15 Strother v YiJtere Coal Cq,,, 15 S. (2d.) 383 (La.., 1943) 28 Studefcteker Gttrp. V Nail, 6(2 S.E. (2d) 198 (Ga., 1950) 23 SWln v Selblitffelitt, 12 NJY.S. 155 (1890); 31 N.E. 1025 (N.Y., 1892 ) 30 , 33 , 72* Swift & CO. v Blackwell, 04 F. (2d) 130 (Va., 1936) 19 Shift a Co. v Rthedidge, 129 S.E. 453 (NX., 1925) 32 , 35, 49* Sfvift & Co. y Hawkins, 164 So. 231 (Miss., 1935) 18 Shift & Co. Kteeklns, 10^ S.E. 138 (NX., 1920 ) 31, 48* Taylor v Newcomb Bating Ccj., 59 N.E. (2d) 293 (Mass., 1945) 34, 58* Texas & N.Q.R, Co. v Jon 242 S.W. 269 (Tex., 1922) 38 Texas & N.O.R. Co. v Kadi 11, 33 S.W. (2d) 832 (Tex., 1930) 38 Thomas, v Winchester, 6 M. 397 (1832) 9, 21, 51* Thornhill v (?arpenter-M on Co., 108 N.E. 474 (Mass., 1915) 9, 13, 18, 62* Tiedje v HarAy, 239 N.W. 11 (Minn., 1931) 18 Tingey v E. F,'Houghton & Co.., 179 P. (2d.) 807 (Cal., 1947) 10, 13, 16, 69* Titlow v Florence Trading Co., 170 Pac 172 (Cal., 1917) 65 Txeacy v F. If. foolworth do., 1 M.Y.S. (2d) 919 (1938) 20, 74* Tremblay v Kimball, 77 Atl. 405 (Me., 1910) 21 Trwabaturi v Katz & Besthciff, 158 So. (La., 1934) 19 , 53* Tucker v Gravesr 88 So. 4q (Ala., 1920).20, 21 Turner v Edison Storage Battery Co., l6l N.E. 423 (N.Y., 1928) 28 Tuscany U. S. Standard Products Co., 243 S.W. (2d) 207 (Tex., 1951) 16, 26, 30, 54* Underhill v Motes, 146 P. (2d) 374 (Kan., 1944) 43* Valinas Drug Co. v Smoots, 269 Fed. 356 (C.C.A. 6th, 1920) 14 Verdi v The National Mineral Co., C.C.H. 22, 126 (111., 1947) 36 Victory Sparkler & Specialty Co. v Latimer, 53 F. (2d) 3 (Mo., 1931) 10, 13, 63*, 67 Victory Sparkler & Specialty Co. v Price, 111 So. 437 (Miss., 1927) 64 B-6 / W. B. Bynum Cooperage Co. v Coulter, 244 S.W. (2d) 955 (Ark., 1952) 23, 47* W. T.. Rawleigh Co. v Shoultz, 56 F. (2d) 148 (Pa., 1932) 10, 17, 40* Walker v Pue, 57 Md. 155 (X88i) 48 Walstrom Optical Co. v Milller, 59 S.W. (2d) 895 (Tex., 1933) 34 Walters v Croasdale 8. Co. i43'Ga. 204 (1871) 48 Walton v Booth, 34 La. Ann. 913. (1382 ) 21', 51 Walton v Sherwin-Williams Co., 191 F. (2d) 277 (Ark., 1951) 7, 8, 13, 15, 25, 27, 47* Waters-Pieree Oil Co. v Dejselms, 212 U.S. 159 (1909) -11, 65 Wechsler v Hoffman-La Roche, Inc., 99 H.Y.S. (2d) 588 (1950) 10, 14, 28 fcisar Holzman, 73 Pac. (797 (Wash., 1903). 9, 12, 61* Wellington v Downer Kerosene Oil Co., 104 Mass. 64 (1870) 9, 11, 12, 61*, 64 Welter v Bowoan Dairy Co.47 N.E. (2d) 739 (ill., 1943) 12 Wennerhola v Stanford 'University : School 'Of Medicine, 128 P. (2d) 522 (Cal., 1942) 14 West v Emanuel, 47 Atl. 966 (Pa., 1901) 51*, 57 West Disinfecting Co. v Pljumiaer, 44 App, D.C. 345 (1916) 9, 13, 14, 22, 37* White v General Chemical do. 136 S.W. (2d) 345 (Mo., 1940) 10, 17, 23, 66* hit v National Ban* of dcraerce, 278 Pac. 915 (Cal., 1929) 14, 22, 39* White v Splawn, 133 P. (2d) 298 (Wash., 1943) 43 Whiteley v Webb's City, Xn|e., C.C.H. 22, 2 (Fla., 1951)- 36, 55* Whitfield v Jessup, C.C.H.| 22, 117 (Cal., 1947 ) 35 Wiggins Chemical Co. v Bex]ry, 46 F. (2d) 622 (ill., 1931) 27 Wilcox, Gibbs 8. Co. v Hailj, 53 Ga. 635 (1875) 32, 49 lillecM, Ives & Co. Brazpell, 117 S.E. 203 (S.C., 1923 ) 30 , 48 Willson v Faxon, Williams Faxon, 101 M.E. 799 (W.Y., 1913) 18, 52* Windrsm Hfg. Co. v Boston Blacking Co., 131 N.E. 454 (Mass., 1921) 10 Winteirbottojn v Wright, 10 M. & W. 109 (Eng., 1842) 5, 9 Wise Hiresta Laboratories, Inc., 28 N.Y.S. (2d) 382 (1941) 16 Wohlfahrt v Beckert, 92 M.k 490 (1883) 19 , 51 Woldho v Arthur J. Rofcenblluth & Co., 71 Atl. 566 (Conn., 1908) 9, 13, 61* Wolfsen v Wheeler, 19 P. (Ed) 1004 (Cal., 1933) 43 Wood Advance Rumely Thresher Co., 234 fUf. 517 (N.D., 1931) 28 Woschenko v Schmidt & SonsL Inc., 66 A. (2d) 159 (N.J., 1949) 15 Wright V Howe, 150 Pac. 956 (Utah, 1915) 21, 52* Wright Illinois. Cent. R.! Co ., 16 S. (2d) 381 (Miss., 1944) 38 Yortoack v Farmers' Cooperative Ass'n. of N.J., 78 A. (2d) 421 (N. J., 1951) 32, 33, 46* Young v Certainteed Products Corp., 133 S.E. 279 (Ga., 1926) 28 Zager v F. W. Woolworth Cc)., 86 P. (2d) 389 (Cal., 1939) 34 Zirpola v Adam Hat Stores,| Inc., 4 A. (2d) 73 (N.J., 1939) 32, 34 B-7 SUPPLEMENTAL TABLE OF CASES (References are to pages. Asterisked numbers refer to page where case is digested in Part II) Adams v Henning, 255 P. (2d) 456 (Cal., 1953) 47-3* Alexander v Seaboard Air Line R. Co., 71 S.E. (2d) 299 (S.C., 1952) 47-2* American Cyanamid Co. v Fields, C.C.H. 22,327 (W.Va., 1953) 36-1, 55* B. M. Keede, Inc. v Roberts,.103 M. (2d) 419 (N.Y., 1952) 71* Bankers Indemnity Ins, Co. v Frigid. ire Sales Corp., 113 F. Supp, 405 (Mo., 1953) 36-7 Bish v The Employers' Liability Ass ance Corp., C.C.H. 22,652 (1952) 60* Black v Bennett, 55 M.W. (2d) 795 (. ich., 1952) 36-2, 71-1* Blessington v McCrary Stores Corp., 111 N.E. (2d) 421 (M.Y., 1953) 36-7 Blissenbach v Yanko, 107 N.E. (2d) 409 (Ohio, 1951) 36-2, 76-1* Boncek v Pennsylvania R, Co., 105 Fj Supp. 700 (N.J., 1952) 36-1 Bowden v United States, 200 F. (2d) 176 (Va., 1952) 36-4, 47-2* Bowman Biscuit Go. v Hines, 251 S.W, (2d) 153 (Tex., 1952) reversing C.C.H. 22,280 (Tex., 1952) 36-1, 36-3 Brown v Sioux City, 49. N.W. (2d) 85^ (Iowa, 1953) 36-4 Burns v Ralston Purina Co,, 75 S*E. (2d) 563 (Ga., 1953) 36-2 Burr v Sharwiifl-lfililliains Co., 258 P. j(2d) 53 (Cal., 1953) 36-1, 36-2, 36-4 , 36-5 , 36-6 , 42-3* Burt v Lake Region Flying Service, Inc., 54 N.W. (2d) 339 (N.D., 1952) 36-2, 47-1* Cohan v Associated Fur Farms, Inc.,:53 N.W. (2d) 788 (Wise., 1952) 36-1, 36-2, 36-3, 76* Cone v Virginia-Carollna Chemical C<j>rp., 174 So. 554 (Miss., 1937) 36-1, 50* De Lucia v Coca-Cola Bottling Co., 39 A. (2d) 749 (Conn., 1952) 36-3 Diepeveen v Larry Vogt, 99 A. (2d) 329 (N.J., 1953) 36-6 Dincher v Marlin Firearms Co,, 198 F. (2d) 821 (Conn., 1952) 36-2, 76-1* Dubois v Phillips Petroleum Co., 59 S. (2d) 107 (La., 1952) 36-2 Duncan v Jonan, 96 a . (2d)-415 (N.Ji, 1953) 36-5 Fair v Burke, 252 S.W. (2d) 289 (Mg., 1952) 47-1* Fein v Bonetti, 111 N.Y.S. (2d) 840:(1952) 36-2, 60* Frier v Procter & Gamble Distributing Co., 252 P, (2d) 850 (Kan., 1953) 36-5, 60-1* Gainey v Folkman, 114 F. Supp. 231 (Ariz., 1953) 36-1 George v Cox, 261 S.W. (2d) 201 (Tex., 1953) 47-3* Grossgold v Brooklyn Jewish Center, 112 N.Y.S. (2d) 66 (1952) 36-2, 47-3* Hall v Mosteller, 245 S.W. (2d) 3381 (Tex., 1952) 36-3 Hardy v Procter L Gamble, C.C.H. 22^340 (C.A. 5th, 1954) 36-2, 60-2* Harris v United States, 106 F. SuppL 298 (Okla., 1952) 47-1*, 36-4 , 47-2* Heeb V Prysock, 245 S.W. (2d) 577 (Ark., 1952) 47-1* Higbee v Giant Food Shopping Centerl 106 F. Supp. 586 (Va., 1952) 36-1, 36-3, 60* Hopkins v E I*:Da Pont De Nemours Co., 199 F. (2d) 930 (Pa., 1952) 36-1 Hoskins v Jackson Grain Co., 63 S. (2d) 514 (Fla., 1953) 36-1 International Harvester Co. v Sharoff, 202 F. (2d) 52 (Colo., 1953) 36-2 Kautzmann v James, 66 S. (2d) 36 (F|La 1953) 36-3, 55* Keller v Flynn, 105 N.E. (2d) 532 ( 1952) 36-3 Kentucky Aerospray v Mays, 251 S.W. (2d) 460 (Ky., 1952) 47-2* Kieffer v Blue Seal Chemical Co., 196 F. (2d) 614 (N.J., 1952) and 107 F. Supp. 288 (1952) 36-1, 36-2, 71* Koktavy v United Fireworks Mfg. Co.j, 117 N.E. (2d) 16 (Ohio, 1954) 36-4 Krupar v Procter & Gamble Co., 117 N.E. (2d) 7 (Ohio, 1954) 60-2* Lock v Confair, 93 A. (2d) 451 (Pa., 1953) 36-4 Marrero v Gluck, 122 N.Y.S. (2d) 19)7 (1953) 36-1, 60-1* Maryland Cas Co. v Owens-Illinois Gflass Co., 116 F. Supp. 122 (Va., 1953) 36-4, 36-6 Mauro v Great A & P Tea Co., C.C.H.! 22,276 (N.Y., 1952) 36-1, 76* McClanahan v California Spray-ChemiCal Corp., 75 S.E. (2d) 712 (Va., 1953) 36-1, 36-2, 36-3, 36-4, 47-3* McPeak v Boker, 53 N.W. (2d) 130 (Jjinn., 1952) 36-3 Mead v Coca-Cola Bottling Co., 108 N.E. (2d) 757 (Mass., 1952) Missouri Bag Co. v Chemical Delinting Co., 58 S. (2d) 71 (Miss., 1952) 36-3 Monsanto Chemical Co. v American Bltumuls Co., 249 S.W. (2d) 428 (Mo., 1952) 47-1* Park v Moorman Mfg. Co., 241 P. (2d) 914 (Utah, 1952) 36-2, 36-3, 76* Parker v State:, 112 N.Y.S. (2d) 695 (1952) affirming 105 N.Y.S. (2d) 735 (1951 Parks v Atwood Crop Dusters, 257 P.| (2d) 653 (Cal., 1953) 47-4* B-8 (1953 Cum. Supp.) Pendergrass v Lovelace, 262 P. (2d) 231 (N. Mex., 1953) 47-2* Phillips v Whelan Drug Co., C.C.H. 22,286 (Pa., 1952) 36-3, 60* Pope v Edward M. Rude Carrier Corp., 75 S.E. (2d) 584 (W. Va., 1953) 36-1, 36-4 Postell v Boykin Tool & Supply Co., 71 S.E. (2d) 783 (Ga., 1952) 36-3, 76-1* Pruett v Burr, 257 P. (2d) 690 (Cal., 1953) 36-1, 36-4, 47-3* Randall v Goodrich-Gamble Co., 54 N.W. (2d) 769 (Minn., 1952) reversing C.C.H. 22,279 (1952) 36-2 , 55* Reed v Swift S Co., C.C.H. 22,322 (Mo., 1953) 60-1* Saporito v Purex Carp., 243 P. (2d) 910 (Cal., 1952) 36-1, 36-2, 73* and 255 P. (2d) 7 (Cal., 1953) 36-1, 36-2 Schilling v Roux .Distributing Co., 59 N.W. (2d) 907 (Minn., 1953) 36-5 , 36-6 , 60-1* Seaton Ranch Co. v Montana Vegetable Oil and Feed Co., 252 F. (2d) 1040 (Mont., 1952) 36-2 Shafer'V Barbier, 259 S.W. (2d} 46l (Ky., 1953) 36-2, 36-3, 60-1* Shafer v Reo Motors, 108 F. Supp. 659 (Pa., 1952), aff'd., 205 F. (2d) 685 (1953) 36-3, 36-6 Smith', v Okersdn, 73 A. (2d) 857 (N.J,, 1950) 47-2* Southwestern Bell Tel. Co. v Smith, 247 S.W. (2d) 16 (Ark., 1952) 47-1* Straus1 v Peterson, 52 N.W. (2d) 307 (Neb., 1952) 36-1 Stull's Chemicals v Davis, 263 S.W. (2d) 806 (Tex., 1953) 36-1, 36-2 Tomao v A. P. De Sanno & Son, 209 F. (2d) 544 (C.C.A. 3rd, 1954) 36-2, 47-2* Victoxson v Albert M. Green Hosiery Mills, 202 F. (2d) 717 (Pa., 1953) 36-6 Walgreen Drug Co. v Sharp & Dohroe, C.C.H. 22,350 (ill., 1954) 36-3, 55* Wasatch Chemical Co. v Leon, 259 P. (2d) 301 (Utah, 1953) 36-5, 36-6 , 47-3* Webb v Sandoz Chemical Works, 69 S.E. (2d) 689 (Ga., 1952) 36-1, 36-2, 55* Willey v Pyrogas Co., 251 S.W. (2d) 635 (Mo., 1952) 36-1, 36-2, 76-1* Wilson v Geigy & Co., 73 S.E. (2d) 487 (NX., 1952) 47-2* Wood v General Electric Co., 112 N.E. (2d) 8 (Ohio, 1953) 36-5 Worley v Procter & Gamble Mfg. Co., 253 S.W. (2d) 532 (Mo., 1952) 36-5, 36-6 , 60-1* B-9 (1953 Cum. Supp.)