Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d. Jayne, J.A.D. (concurring).
This case arises out of an automobile accident. The question -- a novel one in this State -- is whether the defendant, Harold M. Schumacher, trading as Schumacher Chevrolet, who undertook for a consideration to repair the brakes of a car for its owner, the defendant, Gene L. Daniels, is liable in tort for damages and injuries allegedly sustained by a third person, the plaintiff, as a result of Schumacher's alleged negligence in making the repair.
The question was raised below on a motion by Schumacher to strike the third count in the amended complaint. The ground of the motion was failure to state a claim upon which
relief could be granted. In that count it is alleged that Schumacher, apparently on the very day of the accident, undertook for a consideration to adjust and do work on the brakes of a 1948 Chevrolet belonging to Daniels, but did his work negligently or failed to do it properly, and as a result, Daniels, while driving his car on a public highway, propelled it into plaintiff's car when (as it appears from the first count, now dismissed) it was at a standstill. The motion was not supported by affidavits. Nevertheless, since Schumacher interposed it after he had served his answer, he might better have framed it as a motion for summary judgment. R.R. 4:58-2; cf. 4:12-2. However we will treat it as such.
The trial court granted the motion, striking the third count; and plaintiff appeals. For the purposes of the appeal, the order on the motion may be deemed to be a final judgment; for we are informed that the other counts of the complaint have been dismissed by stipulation of the parties, thereby disposing of all the remaining issues in the case. Cf. West Side Trust Co. v. Gascoigne , 39 N.J. Super. 467 (App. Div. 1956).
The complaint charges Schumacher with misfeasance and perhaps also with nonfeasance. Under the prevailing rule today in other jurisdictions, in a case of misfeasance, he who repairs a chattel is bound to exercise reasonable care not to cause bodily harm or damage to one whose person or property may reasonably be expected to be endangered by the probable use of the chattel after the making of the repair. In such a case the obligation in tort is fastened to the repairman's acts quite aside from any obligation in contract. Under this rule, one who negligently repairs an automobile at the request of the owner has been held liable to a third person. Hudson v. Moonier , 94 F.2d 132, 136, 137 (8 Cir. 1938), refusing to follow earlier contrary cases, reversed on other grounds 304 U.S. 397, 58 S. Ct. 954, 82 L. Ed. 1422 (1938), same case, 102 F.2d 96 (8 Cir. 1939); Oliver v. Bereano , 267 App. Div. 747, 48 N.Y.S. 2 d 142 (App. Div. 1944), affirmed 293 N.Y. 931,
60 N.E. 2 d 134 (Ct. App. 1944); Kalinowski v. Truck Equipment Co. , 237 App. Div. 472, 261 N.Y.S. 657 (App. Div. 1933); Frantz v. General Motors Corporation , 176 F.2d 80, 82 (3 Cir. 1949), stating the Pennsylvania law, and see Wissman v. General Tire Co. of Philadelphia , 327 Pa. 215, 192 A. 633, 634 (Sup. Ct. 1937) -- both cases approving Restatement of Torts , § 404 cited below; see Egan Chevrolet Co. v. Bruner , 102 F.2d 373, 375 (8 Cir. 1939); cf. Moody v. Martin Motor Co. , 76 Ga. App. 456, 46 S.E. 2 d 197 (Ct. App. 1948); Jewell v. Dell, Ky. , 284 S.W. 2 d 92, 96 (Ct. App. 1955). For cases reaching a like result with respect to the repair of chattels other than autos, see Prosser, Torts (2 nd ed. 1955), 517. Prosser cites earlier contrary law, but dismisses it as "now ancient history." See also Restatement of Torts , § 404, which provides:
"One who as an independent contractor negligently makes, rebuilds or repairs a chattel for another is subject to the same liability as that imposed upon negligent manufacturers of chattels under the rules stated in §§ 395 to 398."
Restatement of Torts , § 395, thus referred to, provides:
"A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured."
The liability also extends to property damage, see Prosser, supra , §§ 84, 85. Further as to § 395 of the Restatement , see Heckel v. Ford Motor Co. , 101 N.J.L. 385 (E. & A. 1925). ...