CASES

IN THE

SUPREME COURT

OF

WASHINGTON.

WEISER v. HOLZMAN.

[33 Wash. 87, 73 Pac. 797.]

APPEAL BONDS Justification of Sureties.-An objection to an appeal bond that the sureties did not justify as to property within the state" is one going to the sufficiency of the sureties, and must be first raised in the court below in order to be available on appeal.

(p. 933.).

NEGLIGENCE-Sale of Explosive-Pleading.-A complaint alleging negligence in that the defendant manufactured, sold and delivered, under the name of champagne cider a dangerous explosive, knowing it to be such, without warning the buyer of its dangerous character, or placing on the bottle containing the substance anything to indicate that it was a dangerous explosive, whereby a third person, without fault or negligence on his part, was injured by an explosion of the substance, is not subject to general demurrer. The only remedy is by motion to make the complaint more definite and certain. (p. 934.)

NEGLIGENCE-Liability to Third Person.-One who knowingly sells and delivers to another an article intrinsically dangerous to human life or health, such as a poison, explosive, or the like, without notice to the purchaser that it is intrinsically dangerous, is liable to any person who is, without fault on his part, injured thereby without regard to any privity of contract. (p. 934.)

Roche & Onstine, for the appellant.

Post, Avery & Higgins, for the respondents.

88 FULLERTON, C. J. The appellant sued for personal injuries. A general demurrer was interposed and sustained to his complaint, whereupon he refused to plead further, and a judgment that he take nothing by his action was entered against him, from which he appeals to this court.

The respondents move to dismiss the appeal for the reason that the justification of the sureties on the appeal bond fails to recite that the sureties are worth the amount for which they justify "in property within this state," as required by section 6509 of the Code (Ballinger's). In other respects the bond is regular. While it may be difficult to distinguish this omission from others made in appeal bonds, which were deemed fatal to the appeal by this court, we have uniformly held this one not to be so, but that an objection on this ground is one going to the sufficiency of the sureties, which must be raised and passed upon in the court below in order to be available in this court: McEachern v. Brackett, 8 Wash. 652, 658, 40 Am. St. Rep. 922, 36 Pac. 690; Warburton v. Ralph, 9 Wash. 537, 546, 38 Pac. 140; Horton v. Donohoe Kelly Banking Co., 15 Wash. 399, 46 Pac. 409, 47 Pac. 435. As 89 the objection in this case was not so raised, the motion to dismiss must be denied.

The next question is, Does the complaint state facts sufficient to constitute a cause of action? Stripped of its verbiage, the complaint alleges that the respondents manufactured, sold and delivered to one Pratt, under the name of "champagne cider," a dangerous explosive, knowing it to be such, without warning Pratt of its dangerous character, or placing on the bottle containing the substance anything to indicate that it was a dangerous explosive; and that appellant while in the employ of Pratt, and engaged in his duties as such employé, and without fault or negligence on his part, was injured by an explosion of the substance. Paragraph 5 of the complaint was as follows: "That the injuries to said plaintiff were caused by the willful negligence, carelessness and want of proper care on the part of the defendant, D. Holzman & Co., by reason of said defendant willfully, carelessly and negligently, and for want of ordinary care in the manufacturing, bottling, preparing, and selling of said champagne cider, in this, that the said defendant's failure to manufacture, bottle and prepare the said champagne cider in the proper degree of temperature; failed to properly charge the said champagne cider with the proper amount of carbonic acid gas, and other substances used in the manufacturing and bottling of the same; failed to properly test said bottle as to its strength and endurance to hold said champagne cider; failed to properly label said bottle as to its being an explosive and dangerous substance; failed to explain to the said M. L. Pratt, or said plaintiff, or anyone else, of the danger in handling and using said bottle of champagne cider,

and the cause for, and probability of its exploding and injuring those who came in contact with the same." The prayer was for damages in the sum of ten thousand dollars.

90 The record does not advise us as to the ground upon which the trial judge sustained the demurrer, but the respondents urge against its sufficiency two principal contentions, the first of which is that the allegations of negligence are so indefinite as to be meaningless, and the second, that there is no causal connection between the negligence alleged (conceding the allegations sufficient) and the injury complained of. The argument that the allegations of negligence are so indefinite as to be meaningless is based upon recitals in the paragraph above quoted. It seems to us, however, that the complaint states a cause of action without that paragraph, and hence it is not very material to inquire just how definite this particular one should have been made; but, conceding it otherwise, we do not think the allegations susceptible to a general demurrer. Clearly, the acts recited therein, when taken with the other acts recited in the complaint, constitute actionable negligence, and, if more particularity of statement was desired and could be required, the remedy was by a motion to make more definite sand certain; not by a general demurrer.

The second objection seems to us to be equally without merit. 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, injured thereby. The rule does not rest upon any principle of contract, or contractual relation existing between the person delivering the article and the person injured, for there is no contract or contractual redation between them. It rests on the principle that the original act of delivering the article is wrongful, and that everyone is 91 responsible for the natural consequences of his wrongful acts. The rule that liability exists in such cases is abundantly supported by authority. In Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, it was held that a manufacturer of drugs. who had sold a druggist extract of belladonna under the label "extract of dandelion," was liable to a person injured thereby. who had procured it of the druggist on a physician's prescription calling for extract of dandelion, it appearing that neither the druggist nor the person taking it knew that it was other

than it was labeled. In Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298, it was held that an apothecary, who had negligently sold a deadly poison for a harmless medicine called for, was liable for the death of the purchaser's servant to whom it was administered, at the suit of the servant's administrator. In Wellington v. Downer Kerosene Oil Co., 104 Mass. 64, the principle governing the liability was stated in the following language: "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 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 himself in fault." So, in Lewis v. Terry, 111 Cal. 39, 52 Am. St. Rep. 146, 43 Pac. 398, it was said: “We agree that the action cannot be sustained on the ground of any privity of contract between plaintiff and defendants, for there was none. If a tradesman sells or furnishes for use an article actually unsound and dangerous, but which he believes to be safe and warrants accordingly, he is not liable for injuries resulting from its defective or unsafe condition to a person who was neither a party to the contract with him, nor one for whose benefit the contract was made. . . . . But when the seller, as 92 in the case made by the complaint before us, represents the article to be safe for the uses it was designed to serve, when he knows it be dangerous because of concealed defects, he commits a wrong independent of his contract, and brings himself within the operation of a principle of the law of torts." See, also, Shearman and Redfield on Negligence, 5th ed., sec. 117; Blood Balm Co. v. Cooper, 83 Ga. 457, 20 Am. St. Rep. 324, 10 S. E. 118; Schubert v. J. R. Clark Co., 49 Minn. 331, 32 Am. St. Rep. 559, 51 N. W. 1103; Bishop v. Weber, 139 Mass. 411, 52 Am. St. Rep. 715, 1 N. E. 154; Elkins v. McKean, 79 Pa. St. 493; 12 Am. & Eng. Ency. of Law, 2d ed., 508, subd. 6. The judgment appealed from is reversed, and the cause remanded, with instruction to overrule the demurrer.

....

Hadley, Anders, Mount and Dunbar, JJ., concur.

The Vendor or Manufacturer of a Dangerous Article may be answerable for injuries caused by such article to others than the purchaser: Lewis v. Terry, 111 Cal. 39, 52 Am. St. Rep. 146, 43 Pac. 398; Schubert v. Clark, 49 Minn. 331, 32 Am. St. Rep. 559, 51 N. W. 1103; Woodward v. Miller, 119 Ga, 618, 46 S. E. 847, 100 Am. St. Rep. —, and note. But see Heizer v. Kingsland etc. Mfg. Co., 110 Mo. 605,

33 Am. St. Rep. 482, 19 S. W. 630; and, also, Tyler v. Wood, 111 Kỵ. 191, 98 Am. St. Rep. 406, 63 S. W. 433; Boston Woven Hose etc. Co. v. Kendall, 178 Mass. 232, 86 Am. St. Rep. 478, 59 N. E. 657. As to the liability to the buyer of one who sells a dangerous substance, see Gibson v. Torrent, 115 Iowa, 163, 88 N. W. 443, 91 Am. St. Rep. 147, and cases cited in the cross-reference note thereto.

TOWNER v. RODEGEB.

[33 Wash, 153, 74 Pac. 50.]

PUBLIC LANDS Homesteads Administrator's Right to Sell Improvements and Right of Possession.-If a homestead settler upon unsurveyed public lands dies without heirs who are citizens of the United States, his administrator cannot sell his improvements and right of possession of the land for the purpose of paying debts and expenses of administration and vest in the purchaser the right to oust the then occupant of the land. (p. 939.)

HOMESTEADS Death of Claimant Before Patent.-If a homestead claimant upon public lands dies before patent issues, or before the right to demand a patent has accrued, the land does not become a part of his estate, nor subject to administration. Upon his death, all of his rights under the homestead entry cease, and his heirs become entitled to a patent, not as successors to his equitable interests, but because the law gives them a preference as new homesteaders, and allows them the benefit of the residence of their ancestor upon the land. (p. 939.)

HOMESTEADS - Liability for Debts- Administration. — Neither a homestead nor a homesteader's mere right to possession of unsurveyed public lands, together with his improvements thereon, can be made liable for debts contracted before patent issues, either under execution, or in case of his death, by process of administration. (p. 940.)

HOMESTEADS-Death of Homesteader-Rights of HeirsAdministration. Whatever rights survive the death of a homestead settler belong to his heirs and not to his estate, and if his heirs fail to exercise such rights, or if there are no heirs capable of exercising them, the land becomes again open for occupancy by any qualified homesteader. The administrator of the deceased homesteader, as such, succeeds to no rights in the homestead, because these are reserved to the heirs, nor is such administrator invested with any right to sell the property and improvements to pay debts simply because there are no heirs. (p. 941.)

EXECUTORS AND ADMINISTRATORS-Sales.-Rule of Caveat Emptor applies to a purchaser at an administrator's sale of a homestead settler's rights. (p. 941.)

A. F. Flegel, for the appellant.

Magill & Magill and J. N. Pearcy, for the respondent.