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Biller v. Allis Chalmers Mfg. Co.

FEBRUARY 8, 1962.

DETTMER S. BILLER, PLAINTIFF-APPELLANT,

v.

ALLIS CHALMERS MANUFACTURING COMPANY, A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County; the Hon. ROBERT L. BRACKEN, Judge, presiding. Reversed and remanded.

CROW, J.

The plaintiff, Dettmer S. Biller, a farm employee of one Ward Hartshorn, brought an action against the defendant, Allis Chalmers Manufacturing Company, a corporation, to recover for personal injuries allegedly sustained in and about the operation of an Allis Chalmers WD-45L-P Tractor, manufactured by the defendant. The defendant moved to dismiss the amended complaint and the motion was allowed. The plaintiff elected to abide by the amended complaint and the court entered a final judgment of dismissal of the suit. From that judgment the plaintiff appeals.

The amended complaint alleges that (1) on or about March 21, 1959 the plaintiff was employed as a farm laborer by Ward Hartshorn on a farm; (2) at all times mentioned the plaintiff was in the exercise of reasonable care for his own safety; (3) the defendant is and has been for many years engaged in the business of manufacturing and selling farm machinery for use on farms such as the one upon which the plaintiff was employed; (4) approximately eight years ago Ward Hartshorn purchased an Allis Chalmers WD-45L-P Tractor manufactured by the defendant, from an authorized dealer; (5) the tractor was designed and constructed to use, and did use, a liquified petroleum gas, to-wit, propane, for fuel, which gas was stored under pressure of approximately 150 pounds per square inch in a tank furnished by the defendant as an integral part of the tractor and located on the front of the tractor, and, due to the characteristics of liquified petroleum as hereinafter set forth, the tractor, while so fueled, became and remained an inherently dangerous instrument; (6) on the date indicated, the plaintiff, in the exercise of his duties as a farm laborer was engaged in filling the fuel tank on the tractor on the farm, and was pumping the fuel into the tank from a bulk storage tank by means of a hand pump; (7) following that filling operation the plaintiff was in the process of disconnecting the fuel hoses from the tank when, due to a failure of a valve in the tank to operate properly, the fuel escaped from the tank and exhausted onto the gloved hands of the plaintiff; (8) the fuel is inherently dangerous in that it has a boiling point of minus 41° Fahrenheit at atmospheric pressure, and upon returning to such atmospheric pressure from the higher pressure under which it was stored in a liquid status in the tractor fuel tank, the fuel vaporized and absorbed large amounts of energy in the form of heat from the hands of the plaintiff thereby freezing his hands and causing the plaintiff to suffer severe and permanent injuries and damages; (9) the defendant knew, or, in the exercise of reasonable care, should have known that the farm tractor would be used and fueled by farm laborers such as the plaintiff who were unacquainted with and uninformed of the dangerous characteristics of the fuel, and knew, or should have known, that a failure of the valve in question to operate properly would result in injury to such a person so unacquainted with the dangerous qualities of the fuel; (10) because of the dangerous characteristics of the tractor when fueled under pressure with liquefied petroleum gas as aforesaid, there was a duty upon the defendant to affix to the fuel tank or to the tractor a conspicuous warning of said dangers for the benefit of the plaintiff and other persons uninformed of said dangers; (11) disregarding that duty, the defendant negligently failed to affix to the tank or tractor said warning, or any warning whatsoever, of the dangerous characteristics of the tractor when so fueled as aforesaid; and (12) as a direct and proximate result of that negligence of the defendant, the plaintiff was injured and damaged in one or more of the following respects:

a. His hands were frozen necessitating the amputation of all his fingers on his left hand and causing severe, painful and permanent injury to the tissues, membranes, muscles, nerves, blood vessels and skin of both of his hands, thumbs and remaining fingers.

b. His ability to earn a living has been permanently damaged.

c. He has incurred heavy medical, doctor and hospital expenses in an effort to be cured of said injuries and will continue to incur such expenses for such purposes.

d. He was incapacitated for a long period of time and thereby lost large sums of money which he otherwise would have earned during said period.

e. He suffered severe pain and will continue to suffer pain for a long period in the future.

The defendant's motion to dismiss alleged that as a matter of law the amended complaint fails to state a cause of action, there is no legal duty owed by the defendant to the plaintiff to warn of the qualities of propane gas, and the theory upon which liability is predicated is not readily understandable by a reading of the complaint.

The plaintiff's theory is that the amended complaint states a good cause of action against the defendant, the tractor, under the circumstances alleged, was inherently dangerous, the defendant owed a duty to the plaintiff to warn him of the dangers inherent in the operation of its product, the duty to warn exists even though the product be perfectly made, the duty to warn extends to this plaintiff, the defendant negligently failed so to warn the plaintiff, his injuries were proximately caused by that negligence, and there were no independent intervening causes terminating the liability of the defendant.

The defendant's theory is that the amended complaint fails to state a cause of action, the defendant, manufacturer of a tractor sold to the plaintiff's employer approximately 8 years prior to the plaintiff's injuries, owed no duty to the plaintiff under the facts alleged, a manufacturer owes no duty to a person other than the original purchaser of the product unless the product is inherently dangerous or becomes so because negligently manufactured, if there was a duty here to warn the amended complaint shows that the breach of such duty was not the proximate cause of the accident, and if there was a legal duty here to warn the failure of the employer of the plaintiff and the supplier of the propane gas to warn of the propensities of propane gas would be an independent intervening cause terminating liability.

On this motion to dismiss, the well pleaded alleged facts of the amended complaint and the reasonable inferences and intendments therefrom are, of course, to be taken as true. The burden of proving the alleged facts rests with the plaintiff, as usual, if there is a trial on the merits. The only question now presented is whether the amended complaint states a good cause of action. There is nothing in the amended complaint, as we see it, that alleges negligence in the defendant's manufacture, as such, of the tractor. Nor is there any allegation of privity of contract between the plaintiff, the employee of the vendee, and user, and the defendant, the manufacturer. We are, therefore, confronted with the propositions of whether under the allegations there is any duty owed by the defendant, and, if so, what duty, whether this particular plaintiff comes within the class of persons to whom any such duty extends, whether there is alleged a tortious or negligent breach of duty, and whether there is alleged an injury proximately caused thereby.

We believe the Restatement of the Law of Torts, Vol II, Secs 388, 394 and 396 of the American Law Institute, state, in summary form, the chief principles of substantive law here applicable. Sections 388, 394, and 396 are as follows:

Sec 388:

"One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied;

(b) and has no reason to believe that those for whose use the chattel is supplied will realize ...


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