MERRILL, Justice.
This appeal is from a judgment for defendants after the trial court gave the affirmative
Appellant, who lived in Birmingham, received a bottle of Evening in Paris perfume as a gift at Christmas time. The perfume was purchased in Montgomery. Later, when she started to open the bottle, there was a slight explosion, the bottle broke and her hand was cut and bled profusely.
The original complaint was against appellant Bourjois, a foreign corporation, Montgomery Fair, a corporation, and others. It was later amended by substituting Lee Drug Co., Inc., a corporation, for Montgomery Fair, and striking all other defendants except Bourjois. The complaint was again amended on June 28, 1956, and demurrer thereto was sustained. It was amended again and demurrer was overruled. Defendants Lee Drug Co. and Bourjois filed pleas of the general issue in short by consent. Upon trial, after plaintiff introduced her witnesses and defendants' answers to interrogatories and rested, defendants requested and received the affirmative charge with hypothesis.
Appellant concedes in brief that Lee Drug Company was entitled to the general affirmative charge, but says that Bourjois was not, contending it was liable under the manufacturers liability doctrine.
One of the argued assignments of error is that the court erred in sustaining the demurrer to the amended complaint filed June 28, 1956. The amended complaint filed on that date contained the allegation: "Plaintiff avers that the Defendants negligently failed to select or inspect the glass container of the `Evening in Paris' perfume received by the Plaintiff as aforesaid, which negligence consisted in this: That the glass container of the `Evening in Paris' perfume received by the Plaintiff as aforesaid, was defective in that it contained a flaw or imperfection of such nature as to cause the said glass container to fracture upon the use by the Plaintiff of the glass container for the purpose for which it was intended by the Defendants; * * *." The complaint upon which the cause was tried contained this addition: "which such defect, flaw or imperfection a reasonable inspection would have disclosed." This was the only difference in the two counts. It will be noted that both counts charged that "the defendants negligently failed to select or inspect the glass container" and the concluding paragraph of both counts reads:
Appellant would have been required to prove a "reasonable inspection" under the allegations of the complaint of June 28. It is harmless error, if error at all, for the trial court to sustain a demurrer to a count when an amended count is added which contains all the allegations of the original count, but which adds matter which does not change the cause of action originally declared on, and places no additional burden of proof on the plaintiff. Morris v. Clark, 202 Ala. 324, 80 So. 406; McClusky v. Duncan, 216 Ala. 388, 113 So. 250; Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16; W. T. Rawleigh Co. v. Cone, 232 Ala. 127, 167 So. 274.
Appellant also argues that her attorneys were not allowed to argue the "if you believe the evidence" hypothesis of the affirmative charge which was given by the trial court.
The record nowhere shows any request or any refusal to allow or permit any argument to the jury. The functions of this court in its appellate character are strictly confined to the action of trial courts upon questions which are presented to and ruled upon by them. We cannot put a trial court in error for failure to rule on a matter which, according to the record, was not presented to, nor decided by him, Clancy
The final assignment of error argued in brief is that the court erred in giving the affirmative charge with hypothesis.
The complaint, as finally amended, was framed, and the cause was tried, on the manufacturers liability doctrine. This doctrine applies in those limited cases where there is no privity of contract between the ultimate user and the manufacturer and where the manufacturer has negligently placed on the market a product which is inherently or imminently dangerous to human life or health, or which, although not dangerous in itself, becomes so when applied to its intended use in the usual and customary manner. Where the user thus sustains an injury which is the natural and proximate result of this negligence in the manufacture or sale of the article and if the injury might have been reasonably anticipated, then the manufacturer is liable to the user under the manufacturers liability doctrine. 65 C.J.S. Negligence § 100 (b); Miles v. Chrysler Corporation, 238 Ala. 359, 191 So. 245; Altorfer Bros. Co. v. Green, 236 Ala. 427, 183 So. 415; Sterchi Bros. Stores v. Castleberry, 236 Ala. 349, 182 So. 474; Crane Co. v. Davies, 242 Ala. 570, 8 So.2d 196; Jefferson Standard Life Ins. Co. v. Watson, 242 Ala. 181, 5 So.2d 639; Jones v. Gulf States Steel Co., 205 Ala. 291, 88 So. 21, citing and discussing MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann. Cas. 1916C, 440; Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667 and 672.
Was the perfume bottle in the instant case inherently dangerous or imminently dangerous? We quote from the annotation in 42 A.L.R. 1243, at 1244:
Articles or substances held not to be inherently dangerous within the meaning of the rule include a chain, Employers' Liability Assur. Corp. v. Columbus McKinnon Chain Co., D.C.N.Y., 13 F.2d 128; a bar of soap, Barrango v. Hinckley Rendering Co., 230 Mass. 93, 119 N.E. 746; a cast-iron pipe elbow, Lee v. Walworth Co., D.C.N.Y., 1 F.R.D. 569; cattle manure, McMurray v. Vaughn's Seed Store, 117 Ohio St. 236, 157 N.E. 567; carbonic acid in bottled drinks, Graham v. Cloar, 30 Tenn.App. 306, 205 S.W.2d 764; a cosmetic box decorated with a metal star, Poplar v. Bourjois, Inc., 298 N.Y. 62, 80 N.E.2d 334; a crate in which an appliance was packed, O'Neil v. American Radiator Co., D.C.N.Y., 43 F.Supp. 543; an electric body-vibrating machine, Robbins v. Georgia Power Co., 47 Ga.App. 517, 171 S.E. 218; an electric stove, Roettig v. Westinghouse Electric & Manufacturing Co., D.C.Mo., 53 F.Supp. 588; an elevator, McDonald v. Haughton Elevator
In view of the foregoing authorities, we hold that a perfume bottle is not an inherently dangerous article.
Further quoting from the annotation in 42 A.L.R. 1244:
As already noted, appellant alleged in her complaint that the bottle was defective and that a reasonable inspection would have disclosed such defect. Part of appellant's proof consisted of answers to interrogatories. Bourjois stated that Evening in Paris perfume was and had been bottled and packaged in Rochester, New York, for over twenty years; that the bottles were purchased from two glass manufacturing concerns in Baltimore, Maryland; that they were tested by the manufacturers; that Bourjois had never made an independent test of the structure and structural strength of the bottles; that there was nothing in the perfume to make it liable to explode; that the perfume was not volatile, decomposed or of an explosive nature; and that the bottle was not affected chemically by chemicals in the perfume.
Appellant's two expert witnesses testified that the bottle was thinner on one side than the other, and one of them testified that the thickness varied from .065 of an inch to .182 of an inch. As both witnesses explained, a glass bottle is weakest at its thinnest point and strongest at its thickest point, but there was no testimony that .065 inches was less than the minimum requirement for a perfume bottle or any indication as to what the minimum thickness should be. We are impressed with the reasoning in the
Appellant cites and argues the case of Miles v. Chrysler Corporation, 238 Ala. 359, 191 So. 245, 247. In that case, the Chrysler Corporation took hundreds of component parts, many, of course, supplied to it by other manufacturers, and assembled these component parts into a finished automobile. The faulty door handle in that case necessarily required fitting and assemblying by the defendant. In the instant case, however, there is but one part, the perfume bottle. The defendant here does nothing but place the perfume in the bottle, doing nothing in the process of manufacturing the bottle itself. Justice Thomas, in the Miles case, quoting from MacPherson v. Buick Motor Co., supra, states:
Under the undisputed testimony in the instant case, we cannot say that Bourjois had a probable knowledge of danger, or that the nature of the thing would probably cause injury, or that it was reasonably certain to place life and limb in peril when negligently made. It, therefore, seems to us that the perfume bottle was not imminently dangerous.
Plaintiff's expert witnesses testified that there is a "hydrostatic" test which a glass manufacturer might use and which would disclose the difference in thickness in this bottle. The testimony does not, however, show when this testing routine was first established, that it was even known to the defendant Bourjois, or that it was a common, accepted, or practical means of discovering such a defect, if there was in fact a defect.
The Supreme Court of California, in the case of Honea v. City Dairy, 22 Cal.2d 614, 140 P.2d 369, 371, where plaintiff, a high school student, bought a bottle of milk which broke in her hand, injuring her, and where plaintiff brought an action for damages for negligence by the defendant in supplying a defective bottle and failing to wrap the bottle, stated in its opinion:
It follows that appellant failed to prove some of the material allegations of her complaint—that defendants negligently failed to inspect the glass container and that it contained a flaw or imperfection as to cause it to fracture upon the use by the plaintiff of the glass container for the purpose for which it was intended by defendant —and the general charge was properly given.
The judgment of the lower court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.
Comment
User Comments