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Fedor v. Albert

Decided: April 28, 1933.

JOHN FEDOR, PLAINTIFF-APPELLANT,
v.
ISRAEL H. ALBERT, DEFENDANT-RESPONDENT



On appeal from the Supreme Court.

For the plaintiff-appellant, James J. McGoogan.

For the defendant-respondent, Albert B. Kahn (Nathan N. Schildkraut, of counsel).

Case

The opinion of the court was delivered by

CASE, J. This is an appeal from a judgment of nonsuit granted at the Mercer Circuit by Judge Oliphant in an action

wherein the plaintiff, a stationary engineer, sought to recover for personal injuries suffered by him on the bursting of a tank sold by the defendant to plaintiff's employer, Woven Steel Hose and Rubber Company.

Defendant was a dealer in second-hand rubber machinery. Hermann, superintendent of the Woven Steel Hose and Rubber Company, went to defendant's place of business, was waited upon by defendant's son and negotiated for the purchase of a compressor. Hermann testified, "I told him we would use the compressor under conditions of about one hundred and twenty pounds," to which the salesman responded that defendant had or could procure a second-hand compressor and tank and that the tank "was good for three hundred pounds." After the sale had been completed and plaintiff's employer had accepted delivery of the apparatus, defendant's son was on the premises of plaintiff's employer and said to plaintiff who, in his capacity as engineer, was to have control of and responsibility for the operation of the apparatus and who was intending to subject the tank to a water test, "why do you want to test that way for? I tested that tank for three hundred pounds and it is bound to stand one hundred and twenty pounds pressure." Plaintiff, relying upon that remark, made no test of the tank. The apparatus remained on the employer's premises for a period of from one to two months, when plaintiff set it up, connected it with the machinery in conjunction with which it was to be used and undertook a trial operation. Important accessories that had been added to the tank were a gauge with an arrow indicator and a safety valve. It does not appear that these articles were a part of the apparatus furnished by the defendant. The fair inference is that they were not. Indeed, plaintiff's brief distinctly asserts that "appellant had fitted a gauge to the tank," and it is in the testimony that plaintiff had at least been working with the safety valve. Plaintiff, having adjusted the safety valve for discharge at one hundred and twenty pounds, began forcing the air into the tank, halting the increase of pressure at twenty-five, fifty, seventy-five, one hundred and one hundred and twenty pounds, respectively. At

one hundred and twenty pounds plaintiff decided to adjust the safety valve to a higher pressure. He testifies: "I climbed on that (viz., a big box set up as a scaffold) to adjust a bolt on the safety valve, so I had a wrench and was just climbing up over the safety valve which was on top of the air tank, I was just going to make it from three to five pounds ahead of the automatic cut-out. Finally it went bang."

The precise theory of the action was stated by plaintiff's attorney early in the trial thus: "This statement (viz., by defendant to plaintiff regarding the pressure capacity) was made to the man, to a member of the public, one about to use the machine, even before he put the test to it. That has nothing to do with the law of contract and consideration * * *. The basis of this suit, your honor, is not the sale at all, it is based on the duty of the defendant to furnish a safe appliance." That position is restated in appellant's brief which, as point one, asserts that "there is a duty owing by anyone, be he manufacturer or dealer, to the public to furnish reasonably safe appliances."

Where a duty arises solely out of contract no one can bring an action for its breach unless he be a party to the contract or one for whose benefit it is made. Tomlinson v. Armour & Co., 75 N.J.L. 748, 755. To maintain an action of tort for breach of a contractual duty, the plaintiff must have the same status under the contract as would entitle him to maintain an action upon contract for a breach of its stipulations. Styles v. Long Co., 67 Id. 413, 419; Clyne v. Helmes, 61 Id. 358, 364. There are cases in which a person selling goods, performing service or doing work under contract may be held in damages for injuries to third persons occasioned by negligence or misconduct connected with the execution of the contract; but these are cases where the duty or liability arises independent of the contract, and in such cases plaintiff must count upon a wrongful act or negligence -- a tort as distinguished ...


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