Annotate this Case

111 S.E.2d 868 (1960)

251 N.C. 675

Kathleen Davis LEMON, Executrix of the Estate of Duncan E. Lemon, Deceased, v. BUCHAN LUMBER COMPANY, Incorporated, and Lowe's Asheboro Hardware, Inc.

No. 536.

Supreme Court of North Carolina.

January 14, 1960.

*869 Harold I. Spainhour, High Point, and Ferree & Anderson, Asheboro, for plaintiff appellant.

McElwee & Ferree, North Wilkesboro, for Buchan Lumber Company, Inc., defendant appellee.

Miller & Beck, Asheboro, for Lowe's Asheboro Hardware, Inc., defendant appellee.

RODMAN, Justice.

Plaintiff's cause of action is laid in tort and not in contract. The fact alleged and admitted by the demurrer that defendant, having a contract to deliver yellow pine, had in fact delivered a mixture of yellow and white pine gave plaintiff no right of action. The damages, if any, resulting from the breach of contract by delivery of a less valuable article could only be claimed by the purchaser.

Plaintiff, if she is to recover, must allege some breach of duty owing her intestate by defendants which proximately caused his death. Recognizing this requirement, she alleges the lumber was sold for use as joists and framing and because of knots, holes, and the kind (white pine instead of yellow) was not fit for the purpose intended and was inherently dangerous.

Liability 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. Dalrymple v. Sinkoe, 230 N. C. 453, 53 S.E.2d 437; Rulane Gas Co. v. Montgomery Ward, 231 N.C. 270, 56 S.E.2d 689.

It is not sufficient to merely allege that an article is inherently dangerous. Unless the mere descriptive name indicates the dangerous character, the pleader must *870 set out the facts which are relied upon to fix the dangerous character of the article. We quoted, with approval, in Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14, 18, this excerpt from Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802; "* * * since the duty owed by a manufacturer to remove users does not require him to guard against hazards apparent to the casual observer or to protect against injuries resulting from the user's own patently careless and improvident conduct, the complaint was properly dismissed."

The approval there given was repeated in Tyson v. Long Mfg. Co., 249 N.C. 557, 107 S.E.2d 170, where additional authorities are cited.

There were no hidden defects in the lumber sold to National Food Stores. Plaintiff alleges the distinction between white and yellow pine and the presence of knots in the boards were apparent and discoverable on a casual inspection. The allegations are not sufficient to hold defendants on the theory that they sold an inherently dangerous article or an article dangerous because of hidden defects. Nor are the allegations sufficient to impose liability on the theory that defendant, in total disregard of the safety of the ultimate user, carelessly and negligently sold an article which would likely prove dangerous in the intended useconstruction of a building. To so hold would require the vendor to know where and how each board would be placed, the distance to be spanned, the weight to be supported, and many other factors which the manufacturer could not know but which would be known to the carpenters and others working on the building. A particular plank unfitted for a joist might be entirely fit and proper for use in framing, or unfit for joists in one place and fit for them in a different place. The law imposes liability for failure to anticipate those consequences which in the ordinary course of human experience might reasonably be expected to result in injury to others. Burr v. Everhart, 246 N.C. 327, 98 S.E.2d 327; Brady v. Southern R. Co., 222 N.C. 367, 23 S.E.2d 334. The law does not require a vendor to stretch foresight into omniscience. Gant v. Gant, 197 N.C. 164, 148 S.E. 34.

The facts alleged are insufficient to show that defendants should reasonably have anticipated the particular use of the board with the alleged readily observable defects in such manner as to cause injury to anyone. Chambers v. Edney, 247 N.C. 165, 100 S.E.2d 343; Stultz v. Benson Lumber Co., 6 Cal. 2d 688, 59 P.2d 100; Kramer v. Mills Lumber Co., 8 Cir., 24 F.2d 313, and annotations 60 A.L.R. 366.