{ "id": 8625319, "name": "CLIFF R. WYATT v. NORTH CAROLINA EQUIPMENT COMPANY", "name_abbreviation": "Wyatt v. North Carolina Equipment Co.", "decision_date": "1960-11-23", "docket_number": "", "first_page": "355", "last_page": "363", "citations": [ { "type": "official", "cite": "253 N.C. 355" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "79 S.E. 2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626959 ], "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0360-01" ] }, { "cite": "79 S.E. 2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616732 ], "opinion_index": 0, "case_paths": [ "/nc/238/0724-01" ] }, { "cite": "101 S.E. 2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628149 ], "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0640-01" ] }, { "cite": "48 S.E. 642", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "136 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658805 ], "opinion_index": 0, "case_paths": [ "/nc/136/0089-01" ] }, { "cite": "113 S.E. 2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619318 ], "pin_cites": [ { "page": "126" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0123-01" ] }, { "cite": "107 S.E. 2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619045 ], "opinion_index": 0, "case_paths": [ "/nc/249/0557-01" ] }, { "cite": "111 S.E. 2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627006 ], "pin_cites": [ { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0675-01" ] }, { "cite": "63 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605329 ], "opinion_index": 0, "case_paths": [ "/nc/233/0283-01" ] }, { "cite": "8 S.E. 2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612449 ], "opinion_index": 0, "case_paths": [ "/nc/217/0542-01" ] }, { "cite": "16 S.E. 2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11299526 ], "opinion_index": 0, "case_paths": [ "/nc/220/0105-01" ] }, { "cite": "180 S.E. 582", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603974 ], "opinion_index": 0, "case_paths": [ "/nc/208/0305-01" ] }, { "cite": "11 L.R.A. (N.S.) 238", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "103 S.W. 245", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "179 S.E. 30", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594882 ], "opinion_index": 0, "case_paths": [ "/nc/208/0001-01" ] } ], "analysis": { "cardinality": 776, "char_count": 20236, "ocr_confidence": 0.574, "pagerank": { "raw": 5.949822521488445e-07, "percentile": 0.9535270203011836 }, "sha256": "9379410d1d1101890ef4c080d35c5fb2eb74cfd107cceedfda12ea43d5134d40", "simhash": "1:dff9fff6832bfbd7", "word_count": 3372 }, "last_updated": "2023-07-14T21:02:38.064481+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CLIFF R. WYATT v. NORTH CAROLINA EQUIPMENT COMPANY." ], "opinions": [ { "text": "Bobbitt, J.\nA warranty, express or implied, is contractual in nature. Whether considered collateral thereto or an integral part thereof, a warranty is an element of a contract of sale. 77 C.J.S., Sales \u00a7 302; 46 Am. Jur., Sales \u00a7 299.\n\u201cThe obligation arising under a warranty is that of an undertaking or promise that the goods shall be as represented or, more specifically, a contract of indemnity against loss by reason of defects therein.\u201d 77 C.J.S., Sales \u00a7 302(d). \u201cThe effect of an express warranty undoubtedly is to bind the seller absolutely for the existence of the warranted qualities. If an implied warranty is properly called a warranty, the consequences should be similar. It should make no difference, therefore, whether the seller was guilty of any fault in the matter.\u201d Williston on Sales, Revised Edition, \u00a7\u25a0 237.\n\u201cSubject to some exceptions and qualifications, it is a general rule that only a person in privity with the warrantor may recover on the warranty.\u201d 77 C.J.S., Sales \u00a7 305 (b); 46 Am. Jur., Sales \u00a7 306.\nOur decisions are in accord. Thomason v. Ballard & Ballard Co., 208 N.C. 1, 179 S.E. 30, and cases cited. Absent privity of contract, there can be no recovery for breach of warranty except in those cases where the warranty is addressed to an ultimate consumer or user. Ordinarily, the ryle that a seller is not liable for breach of warranty-to a stranger to the contract of warranty is applicable to an employee of the buyer. Berger v. Standard Oil Co. (Ky.), 103 S.W. 245, 11 L.R.A. (N.S.) 238. Negligence is the basis of liability of a seller to a stranger to the contract of warranty. Enloe v. Bottling Co., 208 N.C. 305, 180 S.E. 582, and cases cited; Caudle v. Tobacco Co., 220 N.C. 105, 16 S.E. 2d 680.\nIn Simpson v. Oil Company, 217 N.C. 542, 8 S.E. 2d 813, cited by' appellant, Seawell, J., referring to Thomason, supra, said: \u201cThe Court simply held that the purchaser from the retail dealer was neither party nor privy to the contract between the vendor and vendee and, therefore, could not avail himself of any warranty that may -have existed between them.\u201d In Simpson, the basis of plaintiff\u2019s cause of action against the manufacturer and distributor of \u201cAmox\u201d was the warranty to the ultimate consumer appearing on the can sold to the diruggist and purchased from him by plaintiff. In this connection, see Williston, op. cit., \u00a7 244(a).\nIn Davis v. Radford, 233 N.C. 283, 63 S.E. 2d 822, cited by appellant, a retailer of \u201cWestsal,\u201d having been sued for damages for the alleged wrongful death of his customer on account of breach of implied warranty that the product was fit for human consumption, was held entitled to j oin the wholesaler from whom he purchased the product and to recover over against the wholesaler for any loss he might suffer on account of plaintiff\u2019s action. While the question was not presented for decision, the opinion of Devin, J. (later C. J.), intimates that, under the ruling in the Simpson case, the plaintiff, had he elected to do so, could have maintainedi an action against the wholesaler. The pleadings disclosed that \u201cWestsal,\u201d a salt substitute, was a patented bottled product. The wording of the notice or label appearing on the sealed bottle of \u201cWestsal\u201d is not disclosed.\nThe alleged warranties were made by defendant to the Construction Company incident to the sale of February 15, 1955; andi plaintiff, a stranger to that transaction, does not allege facts sufficient to entitle him to recover damages for breach thereof.\nIn respect of negligence, this general statement is pertinent:\n\u201cOne 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 its dangerous condition; and (c) fails to exercise reasonable care to inform them of its diangerous condition or of the facts which make it likely to be so.\u201d Restatement, Torts, \u00a7 388.\n\u201cLiability may be imposed on a manufacturer who sells an article likely to cause injury in its ordinary use because of some latent defect or because inherently dangerous in the use to which he knows it will be put.\u201d Lemon v. Lumber Co., 251 N.C. 675, 677, 111 S.E. 2d 868; Tyson v. Manufacturing Co., 249 N.C. 557, 107 S.E. 2d 170; Gwyn v. Motors, Inc., 252 N.C. 123, 126, 113 S.E. 2d 302.\nAs to the seller of a chattel known to have been manufactured by another, the rule has been stated as follows: \u201cA vendor of a chattel made by a third person which is bought as safe for use in reliance upon the vendor\u2019s profession of competence and care is subject to liability for bodily harm caused by the vendor\u2019s failure to exercise reasonable competence and care to supply the chattel in a condition safe for use.\u201d Restatement, Torts, \u00a7 401. Under this rule, liability depends upon whether such seller, by the exercise of reasonable care, could have discovered the dangerous character or condition of the chattel. Restatement, Torts, \u00a7 402.\nPlaintiff alleges the Loader was \u201cinherently dangerous\u201d and \u201clikely to cause great injury to its operator.\u201d As stated by Rodman, J., in Lemon v. Lumber Co., supra: \u201cIt is not sufficient to merely allege that an article is inherently dangerous. Unless the mere descriptive name indicates the dangerous character, the pleader must set out the facts which are relied upon to fix the dangerous character of the article.\u201d\nDefendant was not the manufacturer of the International Harvester Loader. It sold and serviced such equipment. While plaintiff alleges defendant knew or by the exercise of due care should have known of the alleged defects, he also alleges the defects were latent and not capable of detection by ordinary care.\nPlaintiff alleges the \u201cbucket\u201d and \u201cloading device\u201d were attached (or caused to be attached) to the Loader by defendant. Ordinarily, the descriptive term, International Harvester Loader, would imply a complete piece of equipment. If plaintiff, by such allegations, means to imply that the Loader was to some extent assembled by defendant, nothing alleged indicates this was done otherwise than in the manner prescribed by the manufacturer.\nPlaintiff alleges the Construction Company \u201cproperly and carefully serviced and maintained\u201d the Loader from February 15, 1955, to July 10, 1956. There is no allegation that the Loader, during this period of use, had either tilted forward without manual activation or that the bucket had raised or lowered itself without manual activation by the operator. Nor do plaintiff\u2019s allegations state or imply that defendant, at any time after February 15, 1955, either inspected or serviced the Loadier or was requested to do so.\nBefore considering plaintiff\u2019s allegations as to the character of the alleged defects and what occurred when plaintiff was injured, we advert to certain well established legal principles.\nThe cause of action consists of the facts alleged. G.S. 1-122; Lassiter v. R. R., 136 N.C. 89, 48 S.E. 642. \u201cThe complaint must show that the particular facts charged as negligence were the efficient and proximate cause, or one of such causes, of the injury of which the plaintiff complains.\u201d Stamey v. Membership Corp., 247 N.C. 640, 645, 101 S.E. 2d 814. The facts alleged, but not the pleader\u2019s legal conclusions, are deemed admitted where the sufficiency of a complaint is tested by demurrer. Stamey v. Membership Corp., supra.\nAs stated by Johnson, J., in Shives v. Sample, 238 N.C. 724, 79 S.E. 2d 193: \u201c. . . negligence is not a fact in itself, but is the legal result of certain facts. Therefore, the facts which constitute the negligence charged and also the facts which establish such negligence as the proximate cause, or as one of the proximate causes, of the injury must be alleged.\u201d\nIt is alleged that, on the occasion of his injury, plaintiff dug and scooped dirt, raised the bucket to a position approximately level with the top of the radiator, then backed the Loader towards a point where trucks were to be loaded. How far had he backed the Loader before he was thrown from the operator\u2019s seat? When thrown from the operator\u2019s seat, was plaintiff backing the Loader on level ground or up or down an embankment or incline? Plaintiff\u2019s allegations' provide no answers. Obviously, when the Loader tilted forward it was not properly balanced. But no facts are. alleged as to defects in the design, materials or construction of the Loader causing it to be improperly balanced when in use under normal operating conditions for the purposes' for which it was designed.\nIt is alleged that, on the occasion of his injury, plaintiff raised the bucket, then filled or partly filled with dirt, to a position approximately level with the radiator, so that the bucket \u201ccould be driven\u2019.\u2019 to the left or right, and kept it in this position while backing the Loader until the time the Loader tilted forward. In the light of these allegations, the only reasonable meaning to be given plaintiff\u2019s allegation that the bucket raised and lowered \u201cwithout manual activation or operation\u201d is that plaintiff did not, by manipulation of a lever or similar mechanical device, cause such movement. But no facts are alleged as to defects in the design, materials or construction of the mechanism for the raising and lowering of the bucket that would cause the bucket to- raise or lower unless the lever or similar mechanical device was manipulated intentionally or accidentally struck. Plaintiff alleges \u201cthe rear end of said loader suddenly and without manual activation raised itself from the ground and . tilted forward, thereby throwing (him) from his seat on said loader to the hood covering the motor of the loader,\u201d and \u201cimmediately before and as (he) was thrown onto the hood . . . the bucket . . . was raising and lowering itself automatically and without manual activation or operation on the part of the plaintiff.\u201d\n. Analysis of the complaint impels the conclusion that the allegations to the effect the Loader was improperly balanced must be considered a mere conclusion of the pleader in the absence of factual allegations as to what defects, if any, in the design, materials or construction caused it to tilt forward on the occasion of plaintiff\u2019s injury. As to the allegations that the bucket raised and lowered itself on the occasion of plaintiff\u2019s injury \u201cwithout manual activation or operation\u201d: It is questionable whether the facts alleged are sufficient to show this was a proximate cause of the tilting forward of the Loader or an accidental result thereof. Be that as it may, the fact the bucket raised and lowered \u201cwithout manual activation or operation\u201d on the occasion of plaintiff\u2019s injury, absent factual allegations as to defects in the design, materials or construction thereof causing it to so act, is insufficient basis for plaintiff\u2019s conclusion that defendant was negligent in this respect.\nThe doctrine of res ipsa loquitur does not apply \u201cwhen the instrumentality causing the injury is not under the exclusive control or management of the defendant.\u201d Smith v. Oil Corp., 239 N.C. 360, 367, 79 S.E. 2d 880.\nSince the factual allegations of the complaint are insufficient to show plaintiff\u2019s injury was proximately caused by the negligence of defendant, the judgment of the court below is affirmed.\nAffirmed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "William N. Puett and E. B. Warren for plaintiff, appellant.,", "Allen \u25a0& Hipp, Thomas W. Steed, Jr., and L. B. Hollowell for defendant, appellee." ], "corrections": "", "head_matter": "CLIFF R. WYATT v. NORTH CAROLINA EQUIPMENT COMPANY.\n(Filed 23 November, 1960.)\n1. Sales \u00a7 IS\u2014\nBoth an express and an implied warranty are elements of a contract of sale, binding the seller absolutely for the existence of the warranted qualities irrespective of any fault on the part of the seller.\n2. Sales \u00a7\u00a7 17, 27\u2014\nThe right to recover on a breach of warranty is limited to those in privity of contract, with the sole exception that an ultimate .consumer or user may recover when the warranty is addressed to him.\n3. Same: Master and Servant \u00a7 18\u2014\nOrdinarily the rule that a seller is not liable to a stranger for breach of warranty is applicable to an employee of the buyer.\n4. Sales \u00a7 30\u2014\nOrdinarily the right of a stranger to the contract to recover for injury resulting from defect in the article sold must be based upon negligence.\n5. Sales \u00a7\u00a7 17,--27: Master and. Servant \u00a7 18\u2014\nAllegations to the effect that plaintiff was an employee of the purchaser of 'the machinery and was injured while operating the machinery as a result of breach of warranty that the machinery was fit for the purposes for which it was designed and sold, fail to state a cause of action, since the employee, a stranger to the contract, is not entitled to recover for breach of warranty.\n6. Sales \u00a7 80\u2014\nThe seller of a chattel may he held liable by a stranger to the contract for injuries resulting to such stranger from the dangerous character or condition of the chattel only if the seller knew of such defect or could have discovered such dangerous character or condition in the exercise of reasonable care.\n7. Pleadings \u00a7 2\u2014\nA cause of action consists of the facts alleged. G.S. 1-122.\n8. Pleadings \u00a7 12\u2014\nA demurrer admits the facts alleged, but does not admit the pleader\u2019s legal conclusions.\n9. Negligence \u00a7 20\u2014\nThe complaint in an action to recover for negligence must allege facts upon which the legal conclusions of negligence and proximate cause may be predicated.\n10. Sales \u00a7 30: Master and Servant \u00a7 18\u2014 Allegations held insufficient to state cause against seller for injuries to employee of purchaser resulting from defect in machinery.\nIn this action by an employee of the purchaser of machinery against the seller to recover for injuries sustained by the employee while operating the machinery, the complaint alleged that the machinery was inherently dangerous, that the bucket attached or caused to be attached to the dirt loading machinery by the seller was improperly balanced, that the bucket was warranted to raise and lower itself only by manual activation, and that while plaintiff was backing the machinery with the bucket raised, in order to load dirt on a truck, the machinery tilted forward, throwing plaintiff from the operator\u2019s seat to the hood, that at the same time the bucket began to raise and lower itself automatically, and that the arms or hydraulic cylinder attached to the bucket crushed the entire lower portion of plaintiff\u2019s body, jHeld: Demurrer was properly sustained in the absence of allegations as to defect in the design, material or construction of the machinery that would cause the bucket to raise or lower without being intentionally manipulated or accidentally struck, and the absence of allegations as to defects in the design, material or construction of the loader causing it to be improperly balanced when used normally for the purposes for which it was designed, the doctrine of res ipsa loquitur being inapplicable.\n11. Negligence \u00a7 5\u2014\nThe doctrine of res ipsa loquitur does not apply when the instrumentality causing the injury is not under the exclusive control or management of defendant.\nAppeal by plaintiff from Craven, Special Judge, April Term, 1960, of Gaston.\nCivil action to recover damages on account of personal injuries sustained by plaintiff while operating, as an employee of Neal Hawkins Construction Company, an International Harvester Model T-D-9 Loader soldi by defendant to said Construction Company, heard below on defendant\u2019s demurrer to amended complaint.\nPlaintiff\u2019s factual allegations, summarized or quoted, are as follows:\nOn February 15, 1955, defendant, \u201cengaged in . . . the selling and servicing of heavy equipment and machinery,\u201d sold the Loader to said Construction Company \u201cwith a warranty of its fitness for the purpose for which it was designed and sold,\u201d namely, for moving andi elevating dirt and other materials, including the loading of such materials on trucks, and \u201cwith a warranty that the bucket attached to said loader would raise and lower itself only by manual activation or operation under normal operating conditions.\u201d\nFrom February 15, 1955, until July 10, 1956, the Loader was at all times \u201cproperly and carefully serviced and maintained by its owner, Neal Hawkins Construction Company.\u201d\nOn July 10, 1956, about 1:00 p.m., on Piedmont Street in Kings Mountain, North Carolina, plaintiff, as operator, was using the Loader \u201cto load dirt onto trucks for hauling.\u201d He placed the bucket in a digging position, \u201cscooped the bucket partially full of damp dirt or earth,\u201d and then \u201cimmediately raised the bucket\u201d to a position \u201capproximately level with the top of the radiator\u201d so that it (the bucket) \u201ccould be driven to the left or to the right.\u201d Then he commenced to move the Loader backwards to the point where trucks could be loaded. While moving the Loader backwards, \u201cthe rear end of said loader suddenly and without manual activation, raised itself from the ground and immediately thereafter said loader suddenly, violently, and without manual activation tilted forward, thereby throwing the plaintiff from his seat on said loader, to the hood covering the motor of the loader.\u201d \u201c. . . immediately before and as the plaintiff was thrown onto the hoodi, over the motor of the loader, and after he landed on said hood, the bucket full of dirt attached to said loader, was raising and lowering itself automatically and without manual activation or operation on the part of the plaintiff.\u201d \u201c. . . as the bucket full of dirt . . . lowered itself after the plaintiff was thrown onto the hood covering the motor of the loader, or as the loader lowered itself while the bucket was on the ground, the arms or supports holding and supporting the bucket to the loader, or the hydraulic cylinder attached thereto, crushed the entire lower portion of the plaintiff\u2019s body. . .\u201d\nPlaintiff was a competent and experienced operator of heavy equipment, and on July 10, 1956, was operating the Loader carefully and prudently in the manner and for the purposes for which the Loader was designed, manufactured and soldi.\nThe alleged defects in the Loader were latent, \u201cnot visible to the naked eye, or capable of detection by ordinary care, nor were said defects apparent to the plaintiff.\u201d\nPlaintiff alleged defendant negligently and carelessly (1) \u201cattached or caused to be attached\u201d to saidi Loader \u201ca bucket or loading device which improperly balanced said loader\u201d when used \u201cfor the purposes and in the manner for which it was designed, manufactured and sold,\u201d and (2) \u201cattached a loading device\u201d to the Loader \u201cin such a manner that the bucket thereof raised and lowered itself automatically and without manual activation or operation\u201d; and that defendant knew, or by the exercise of due care should have known, that- the alleged defects in the Loader were of such nature as to cause it to tilt forward violently when used in the manner and for the purposes for which it was designed, manufactured and sold, and on account of such defects the Loader was \u201cinherently dangerous\u201d and \u201clikely to cause great injury to its operator.\u201d\nPlaintiff alleged that his injuries were caused by defendant\u2019s negligence in the respects alleged and by defendant\u2019s breach of warranty \u201cof merchantability and fitness.\u201d\nDefendant demurred on the ground that the amended complaint does not state facts sufficient to constitute a cause of action either in tort or for breach of warranty, setting forth with particularity the asserted deficiencies.\nJudge Craven, in announcing his ruling sustaining the demurrer, inquired whether plaintiff desired leave to amend. Plaintiff\u2019s counsel stated that \u201cfurther amendments were not desired\u201d and that plaintiff would rest upon the pleading then before the court. Whereupon, judgment, sustaining the demurrer and dismissing the action, was entered. Plaintiff excepted and appealed.\nWilliam N. Puett and E. B. Warren for plaintiff, appellant.,\nAllen \u25a0& Hipp, Thomas W. Steed, Jr., and L. B. Hollowell for defendant, appellee." }, "file_name": "0355-01", "first_page_order": 395, "last_page_order": 403 }