GALBRAITH v. ILLINOIS STEEL CO., 133 F. 485

BAKER, Circuit Judge (after stating the facts). Plaintiff contends that defendant, outside and independently of its contract with the sprinkler company, owed her a duty to use reasonable care in constructing the steel support; that the evidence shows that defendant failed to exercise such care; that such failure was the proximate cause of her losses; and therefore that she has made out a good cause of action against defendant. And in support of her contention plaintiff cites numerous authorities.

On the other hand, defendant insists that this case falls within the rule that a contractor, manufacturer, or vender is not liable to persons who have no contractual relations with him for negligence in the construction, manufacture, or sale of the

article he handles, and illustrates its argument by comparison with many cases. If the sprinkler company had suffered from defendant’s omission of the tie member, that company could have maintained against defendant an action ex contractu, for defendant had engaged to put in the tie member, or an action ex delicto, for defendant failed to discharge a duty it had assumed to the sprinkler company.

In both cases the measure of right and duty would be the same, because it would be intolerable that an action ex delicto should be maintained by one contracting party against the other on account of the complete and exact performance of the contract. If defendant owed to the sprinkler company any duty to exercise care that the completed structure should withstand the wind, then, if the contract had called for the very steel support that defendant erected, full performance of the contract would be no defense to an action ex delicto for breach of the supposititious duty.

It follows that the only duty owing by defendant to the sprinkler company was to perform the contract as it was made, and that the only party who could sue defendant for a breach of the duty that was created and measured by the contract was defendant’s contractee, the sprinkler company. • Plaintiff cannot recover from defendant simply by showing defendant’s breach of its contract with the sprinkler company, nor simply by showing defendant’s breach of its duty to the sprinkler company. There was no contract relation between the parties to this case.

What duty arose from the fact that defendant went upon plaintiff’s building to execute its contract with the sprinkler company? There is the general maxim of the law of negligence that one, in following his business or pleasure, shall use reasonable care to avoid injury to others. That is a duty owing from everybody to everybody. And in this case, if defendant’s workmen, during the erection of the steel support, had negligently dropped a girder on a passer-by in the street, or down through the .roof and floors of plaintiff’s building, Bickford v. Richards, 154 Mass. 163, 27 N. E. 1014, 26 Am. St.

Rep. 224, and other decisions, would be good precedents for applying the maxim. In such a case there would be a breach of a duty that was not created and measured by the contract, and the inquiry whether defendant, on finally leaving the premises, had fully completed its contract, or had negligently failed in its duty in that regard, would be utterly irrelevant.

But plaintiff’s case requires her to assert that defendant owed her the duty to use reasonable care to see to it, before leaving the job of erecting the steel support, that the final structure would not be apt to be blown over on account of the lack of the proper number of steel girders to make it safe.

If such a duty existed, it would he one owing equally to the passer-by in the street, it would have being separate and apart from the duty that was created and measured by the contract between defendant and the sprinkler company, and it might or might not be coextensive with defendant’s duty to the sprinkler company. If it were coextensive, it would be for the reason that defendant’s contract with the sprinkler company called for such a steel support that the final structure would be reasonably safe.

And since a duty cannot be shifted, defendant could not rely on the proposal of its customer, but would have to determine for itself, and at its own peril, whether or not the steel support shown in the proposed contract would in fact be sufficient to co-operate properly with the other parts of the system to make a reasonably safe final structure.

If defendant’s alleged duty to plaintiff were of different dimensions from those of its duty to the sprinkler company, it would be for the reason that defendant’s contract with the sprinkler company did not call for such a steel support that the final structure would be reasonably safe. And in such a case defendant would be confronted with the situation that its performance of its duty to the sprinkler company would be a' breach of its duty to the rest of the world.

Defendant’s supposed duty to plaintiff being created by law, if at all, and therefore being absolute, and defendant’s duty to the sprinkler company being of a size determinable by the contracting parties, the question of the two duties’ coextensiveness is irrelevant, for, if defendant owed plaintiff the supposed duty, that duty could not be diminished or altered by defendant’s contract with another. Hence, in-inquiring into the origin, nature, and extent of defendant’s duty to plaintiff, the irrelevancy of the terms of defendant’s contract with the sprinkler company.

And since the terms of the contract are immaterial, it is obvious that the question of performance is impertinent on the part of any one but the sprinkler company. If defendant, constructor of one part, was bound to use reasonable care that the entirety, when turned over to the possession and use of a stranger, should withstand the winds, so were the builders of other parts. Take the tank company for example. It came upon the premises after defendant had gone. The fact was obvious that one side of a triangle was missing.

The final effect of putting upon that support 85 tons’ weight in the form of a sail was the blowing over of the structure.

If defendant were required to look beyond its contract, and to ascertain the weight of the tank that was to be furnished by another, its capacity, the weight of the water, the sail area, and the speed of the winds, in order to determine whether the final and completed structure would be safe, it would be equally just to require the tank company to figure (and with reasonable accuracy, at its peril) on the tensile and torsional strength of steel, and the adequacy of the designs for the support on which it engaged to set its tank.

If the law should hold all the builders and makers and doers in the land to a particular duty to their contractees, and at the same time to another absolute duty to use care that the thing shall be innocuous as it passes through the hands of all mankind — a duty separate and distinct from the first, which might or might not be coextensive with the first, but, whether so or not, unavailing to avoid the second — we fancy few persons would be willing to do business, in the face of the insufferable litigation that would ensue.

True, the common law — that inexhaustible fount, of which the taps are in the hands of the courts — might have been turned to watering plaintiff’s contention; but we think it evidence of the perception of a sound public policy that the courts, with virtual unanimity, have refrained from opening the gates. To the rule there are exceptions. One must not, knowingly or unknowingly, fail to exercise care in the preparation or sale of an

article intended to affect human life. One must not knowingly send out an instrumentality which is imminently and immediately dangerous, without notice of its nature and qualities. From the steel support, as defendant left it, no danger threatened. None came from it immediately, but only through additions and acts of the tank company, the sprinkler company, and plaintiff. This case is not within the exceptions.

And furthermore the subsequent and independent intervening acts of the tank company, the sprinkler company, and plaintiff saved defendant’s omission of the tie member from being the proximate cause of the accident. Sibley on the Right to and Cause for Action, p. 44; Enc. of Law & Procedure (section on “Actions”); Whitaker’s Smith on Negligence (2d Ed.) p. 111; also page 32; Pollock on Torts (Ed. 1887) pp. 347, 350 ; Bickford v. Richards, 154 Mass. 163, 27 N. E. 1014, 26 Am. St.

Rep. 224; Bishop on Noncontract Law, § 79; Thompson’s Commentaries on the Law of Negligence, vol. 1, p. 626; Addison on Torts (Dudley & B. Ed.) p. 17; Shearman & Redfield on Negligence (4th Ed.), vol. 1, p. 23, § 22; Huset v. J. I. Case Threshing Machine Company, 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303. Winterbottom v. Wright, 10 M. & W. 109; Collis v. Selden, 3 C. P. 495; Mayor of Albany v. Cunliff, 2 N. Y. 165; Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 513; Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638; Necker v. Harvey, 49 Mich. 517, 14 N. W. 503; Daugherty v. Herzog, 145 Ind. 255, 44 N.

E. 457, 32 L. R. A. 837, 57 Am. St Rep. 204; Curtin v. Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St Rep. 220; Fitzmaurice v. Fabian, 147 Pa. 199, 23 Atl. 444; Heizer v. Kingsland & Douglass Mfg. Co., 110 Mo. 605, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St Rep. 482; Bailey v. Northwestern, etc., Gas Co., 4 Ohio Cir. Ct. R. 471; Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767; Davidson v. Nichols, 93 Mass. (11 Allen) 514; Carter v. Harden, 78 Me. 528, 7 Atl. 392; McCaffrey v. Mossberg & Granville Mfg. Co. (R. I.) 50 Atl. 651, 55 L. R. A. 822; Burke v. De Castro, 11 Hun, 354; Swan v.

Jackson (Sup.) 7 N. Y. Supp 821; Savings Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400, 11 C. C. A. 253, 27 L. R. A. 583; Bragdon v. Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A. 567; Huset v. J. I. Case Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303; Salliotte v. King Bridge Co., 122 Fed. 378, 58 C. C. A. 466, 65 L. R. A. 620; Blakemore v. B. & E. Ry. Co., 8 El. & Bl. 1035; Barrett v. Singer Mfg. Co., 31 N. Y. Super. Ct. 545; Marvin Safe Co. v. Ward, 46 N. J. Law, 19; Marquardt v. Ball Engine Co., 122 Fed. 374, 58 C. C.

A, 462; Wharton on Negligence (2d Ed.) 438.