Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409 (1932).

      [No. 23749. Department One. June 20, 1932.]
SAM BAXTER, Appellant, v. FORD MOTOR COMPANY et al.,
                     Respondents. «1»

[1] WITNESSES (74) - CROSS-EXAMINATION - SCOPE AND EXTENT IN
GENERAL. Where a party's officer is questioned as to the
relation between his company and a co-defendant, on
cross-examination the written agency contract showing the
relation is admissible.

[2] SALES (152) - REMEDIES OF BUYER - ACTION FOR BREACH OF
WARRANTY - EVIDENCE - ADMISSIBILITY. In an action for
breach of warranty of an automobile, reading matter on the
back of the contract purporting to state the manufacturer's
warranty is not admissible to show a warranty by the
dealer, where the contract expressly provided that the
dealer made no warranty.

[3] SAME (152). In an action for breach of warranty of
nonshatterable glass in a windshield, catalogues and printed
statements furnished the dealer for sales assistance are
admissible against the manufacturer, although there was no
privity of contract; since the falsity of the representations
could not be readily detected.

[4] SAME (152). In an action for breach of warranty of non-shatterable
glass in a windshield, plaintiff is entitled to show his
absence of familiarity with non-shatterable glass, and
that he had had no experience enabling him to recognize the
difference between it and ordinary glass.

Appeal from a judgment of the superior court for
Lewis county, Simpson, J., entered December 4, 1931,
dismissing an action for damages for breach of


1 Reported in 12 P.2d 409.

                BAXTER v. FORD MOTOR CO.                457
 June 1932          Opinion Per HERMAN, J.

warranty, upon sustaining a challenge to the sufficiency of
the evidence. Reversed as to Ford Motor Company;
affirmed as to St. John Motors.

Smith & Davies, for appellant.

Battle, Hulbert & Helsell and Whittemore & Truscott,
for respondent Ford Motor Company.

Shank, Belt, Fairbrook & Rode and Hull & Murray,
for respondent St. John Motors.

HERMAN

HERMAN, J. - During the month of May, 1930, plaintiff
purchased a Model A Ford town sedan from defendant
St. John Motors, a Ford dealer, who had
acquired the automobile in question by purchase from
defendant Ford Motor Company. Plaintiff claims that
representations were made to him by both defendants
that the windshield of the automobile was made of
non-shatterable glass which would not break, fly or
shatter.

October 12, 1930, while plaintiff was driving the
automobile through Snoqualmie pass, a pebble from a
passing car struck the windshield of the car in question,
causing small pieces of glass to fly into plaintiff's left
eye, resulting in the loss thereof. Plaintiff brought
this action for damages for the loss of his left eye, and
for injuries to the sight of his right eye. The case
came on for trial, and, at the conclusion of plaintiff's
testimony, the court took the case from the jury and
entered judgment for both defendants. From that
judgment, plaintiff appeals.

[1] Appellant's first assignment of error is: The
court erred in allowing the respondents to introduce
in evidence, over the objection of appellant, the written
contract of agency between the respondents. An investigation
of the record discloses that A. C. St. John,
the president of St. John Motors, was called as a

 458    BAXTER v. FORD MOTOR CO.
                Opinion Per HERMAN, J.           168 Wash.

witness by appellant's counsel, and was questioned with
reference to his relationship with respondent Ford
Motor Company. On cross-examination by counsel for
the Ford Motor Company, this contract was offered in
evidence for the purpose of showing the relations between
respondents. The ruling was correct.

[2] The second assignment of error is that the
court refused to admit in evidence certain catalogues
and printed matter furnished by respondent Ford
Motor Company to respondent St. John Motors for
distribution and assistance in sales.

When the car was sold to appellant, a written purchase
order was entered into between the seller and
the purchaser. Ford Motor Company was not a party
to this agreement. Certain reading matter was printed
on the back of the purchase contract, which printing
purported to tell what constituted the Lincoln Motor
Company warranty and the Ford Motor Company warranty.
There was nothing in connection with the sales
agreement which indicates that either the Lincoln
Motor Company warranty or the Ford Motor Company
warranty there set forth was made to, or accepted by,
appellant or any other person.

The instrument in question was devoid of any provision
which would have given appellant the right to
sue the Lincoln Motor Company or the Ford Motor
Company, if privity of contract be a condition precedent
to a suit predicated on misrepresentations perpetrated
by a manufacturer upon the public, resulting
in the sale of products put forth as possessing qualities
which the victim of such misrepresentations later discovers,
to his damage, were lacking. Hence, respondent
Ford Motor Company cannot successfully maintain
that, so far as appellant is concerned, its warranties to
appellant were set forth in the purchase agreement between
appellant and the respondent dealer.

                BAXTER v. FORD MOTOR CO.                459
 June 1932          Opinion Per HERMAN, J.

So far as that respondent, St. John Motors, is concerned,
the written contract limits its responsibility.
to appellant. The purchase order stated that it contained
the entire contract, and there was contained
therein the following agreement:

"It is further agreed that no warranty either express
or implied is made by the dealer under this order
or otherwise covering said car."

To have permitted the introduction of the testimony
in question as against respondent St. John Motors,
would have been to have countenanced an attempt to
vary the terms of the written instrument by parol
testimony. Such evidence was not competent against
respondent St. John Motors, and there was not sufficient
evidence against that respondent to justify submission
of the cause to the jury. Judgment was properly
entered for respondent St. John Motors.

[3] The principal question in this case is whether
the trial court erred in refusing to admit in evidence,
as against respondent Ford Motor Company, the catalogues
and printed matter furnished by that respondent
to respondent St. John Motors to be distributed.
for sales assistance. Contained in such printed matter
were statements which appellant maintains constituted
representations or warranties with reference to the
nature of the glass used in the windshield of the car
purchased by appellant. A typical statement, as it
appears in appellant's exhibit for identification No. 1,
is here set forth:

"'TRIPLEX SHATTER-PROOF GLASS WINDSHIELD. All of
the new Ford cars have a Triplex shatter-proof glass
windshield - so made that it will not fly or shatter
under the hardest impact. This is an important safety
factor because it eliminates the dangers of flying glass
- the cause of most of the injuries in automobile accidents.
In these days of crowded, heavy traffic, the
use of this Triplex glass is an absolute necessity. Its

 460    BAXTER v. FORD MOTOR CO.
                Opinion Per HERMAN, J.           168 Wash.

extra margin of safety is something that every motorist
should look for in the purchase of a car - especially
where there are women and children."

Respondent Ford Motor Company contends that
there can be no implied or express warranty without
privity of contract, and warranties as to personal
property do not attach themselves to, and run with, the
article sold.

Mazetti v. Armour Co., 75 Wash. 622, 135 Pac.
633, Ann. Cas. 1915C 140, 48 L. R. A. (N. S.) 213, was
a case brought against Armour & Co. by proprietors of
a restaurant. The complaint alleged that, in the course
of their business, they purchased from the Seattle
Grocery Company a carton of cooked tongue, relying
upon the representations of Armour & Co. that its
goods were pure, wholesome and fit food for human
beings; that, in the center of the carton, was a foul,
filthy, nauseating and poisonous substance; that, during
the due course of trade, plaintiffs served one of
their patrons a portion of the tongue, the customer ate
of it, became sick and nauseated, and proceeded
publicly to denounce service of such foul and poisonous
food; that the incident became generally known; that
plaintiffs had no knowledge of or means of learning
the character of the food served; that its condition
could not be discovered until it was served for use; and
that, as a result thereof, plaintiffs were damaged. The
trial court sustained a demurrer to the complaint. In
the course of an opinion reversing the case, the court
said:

"It has been accepted as a general rule that a manufacturer
is not liable to any person other than his immediate
vendee; that the action is necessarily one
upon an implied or express warranty, and that without
privity of contract no suit can be maintained; that
each purchaser must resort to his immediate vendor.
To this rule, certain exceptions have been recognized;

               BAXTER v. FORD MOTOR CO.                461
 June 1932          Opinion Per HERMAN. J.

(1) Where the thing causing the injury is of a noxious
or dangerous kind; (2) where the defendant has been
guilty of fraud or deceit in passing off the article; (3)
where the defendant has been negligent in some respect
with reference to the sale or construction of a
thing not imminently dangerous. . . .

"Although the cases differ in their reasoning, all
agree that there is a liability in such cases irrespective
of any privity of contract in the sense of immediate
contract between the parties.

"To the old rule that a manufacturer is not liable
to third persons who have no contractual relations with
him, for negligence in the manufacture of an article,
should be added another exception - not one arbitrarily
worked by the courts - but arising, as did the three to
which we have heretofore alluded, from the changing
conditions of society. An exception to a rule will be
declared by courts when the case is not an isolated
instance, but general in its character and the existing
rule does not square with justice. Under such circumstances,
a court will, if free from the restraint of some
statute, declare a rule that will meet the full
intendment of the law. No case has been cited that is
squarely in point with the instant case, but there is
enough in the adjudged cases to warrant us in our conclusion.
. . . .

"We would be disposed to hold on this question that,
where sealed packages are put out and it is made to
appear that the fault, if any, is that of the manufacturer,
the product was intended for the use of all those
who handle it in trade as well as those who consume

In the case at bar, the automobile was represented by
the manufacturer as having a windshield of non-shatterable
glass "so made that it will not fly or shatter
under the hardest impact." An ordinary person would
be unable to discover by the usual and customary examination
of the automobile whether glass which would
not fly or shatter was used in the windshield. In that
respect, the purchaser was in a position similar to that

 462    BAXTER v. FORD MOTOR CO.
                Opinion Per HERMAN, J.           168 Wash.

of the consumer of a wrongly labeled drug, who has
bought the same from a retailer, and who has relied
upon the manufacturer's representation that the label
correctly set forth the contents of the container. For
many years, it has been held that, under such circumstances,
the manufacturer is liable to the consumer,
even though the consumer purchased from a third person
the commodity causing the damage. Thomas v.
Winchester, 6 N.Y. 397, 57 Am. Dec. 455.

The rule in such cases does not rest upon contractual
obligations, but rather on the principle that the original
act of delivering an article is wrong, when, because of
the lack of those qualities which the manufacturer
represented it as having, the absence of which could
not be readily detected by the consumer, the article
is not safe for the purposes for which the consumer
would ordinarily use it.

The vital principle present in the case of Mazetti v.
Armour & Co., supra, confronts us in the case at bar.
In the case cited, the court recognized the right of a
purchaser to a remedy against the manufacturer because
of damages suffered by reason of a failure of
goods to comply with the manufacturer's representations
as to the existence of qualities which they did not
in fact possess, when the absence of such qualities was
not readily discoverable, even though there was no
privity of contract between the purchaser and the
manufacturer.

Since the rule of caveat emptor was first formulated,
vast changes have taken place in the economic structures
of the English speaking peoples. Methods of doing
business have undergone a great transition. Radio,
bill boards and the products of the printing press have
become the means of creating a large part of the demand
that causes goods to depart from factories to the
ultimate consumer. It would be unjust to recognize

                BAXTER v. FORD MOTOR CO.                463
 June 1932          Opinion Per HERMAN, J.

a rule that would permit manufacturers of goods to
create a demand for their products by representing
that they possess qualities which they, in fact, do not
possess; and then, because there is no privity of
contract existing between the consumer and the
manufacturer, deny the consumer the right to recover if
damages result from the absence of those qualifies,
when such absence is not readily noticeable.

"An exception to a rule will be declared by courts
when the case is not an isolated instance, but general
in its character and the existing rule does not square
with justice. Under such circumstances, a court will,
if free from the restraint of some statute, declare a
rule that will meet the full intendment of the law."
Mazetti v. Armour & Co.,
75 Wash. 622, 135 Pac. 633.

We hold that the catalogues and printed matter
furnished by respondent Ford Motor Company for distribution
and assistance in sales (appellant's exhibits
for identification Nos. 1, 2, 3, 4 and 5) were improperly
excluded from evidence, because they set forth
representations by the manufacturer that the windshield
of the car which appellant bought contained Triplex
non-shatterable glass which would not fly or shatter.
The nature of non-shatterable glass is such that the
falsity of the representations with reference to the
glass would not be readily detected by a person of
ordinary experience and reasonable prudence. Appellant,
under the circumstances shown in this case,
had the right to rely upon the representations made
by respondent Ford Motor Company relative to qualities
possessed by its products, even though there was
no privity of contract between appellant and respondent
Ford Motor Company.

[4] Appellant assigns as error rejection of the
following offer to prove:

"We now offer to prove by the witness on the stand
that he didn't know anything about shatter-proof glass

 464    BAXTER v. FORD MOTOR CO.
                Opinion Per HERMAN, J.           168 Wash.

or any other kind of glass; that he had never been
engaged in any occupation which would familiarize him
with glass and know at all the difference between
shatter-proof glass and any other kind of glass, and
didn't know anything different at that time; that he
didn't know anything about the composition or otherwise
of Triplex shatter-proof windshields or Triplex
shatter-proof glass; that he relied solely and wholly
upon the representations made by St. John and
Johnnie Delaney and what he read and saw in the
catalogues from them, which have been offered in evidence;
that he believed these representations to be
true, and by reason of his belief in these representations,
and by reason of these representations, he purchased
on or about the 13th day of May, a Model A
Ford town sedan."

With the exception of so much of the offer as related
to the representations of Mr. St. John and Johnnie
Delaney (a salesman for respondent St. John Motors),
the testimony contemplated by the offer to prove was
relevant, and should have been received. While it is.
a matter of common knowledge that the difference between
glass which will not fly or shatter and ordinary
glass is not readily noticeable to a person of ordinary
experience, nevertheless appellant was entitled to show
an absence of familiarity with non-shatterable glass.
His testimony would have tended to show that he had
no experience which should have enabled him to recognize
the glass in the windshield as other than what
it was represented to be.

The trial court erred in taking the case from the
jury and entering judgment for respondent Ford
Motor Company. It was for the jury to determine,
under proper instructions, whether the failure of respondent
Ford Motor Company to equip the windshield
with glass which did not fly or shatter, was the
proximate cause of appellant's injury.

                PELLY v. BEHNEMAN.                     465
 June 1932          Statement of Case.

We have considered the other assignments of error,
and find them to be without merit.

Reversed, with directions to grant a new trial with
reference to respondent Ford Motor Company; affirmed
as to respondent St. John Motors.

MILLARD, BEALS, and MAIN, JJ., concur.
                    ON REHEARING.
           [En Banc. October 13, 1932.]
-Opinion-

PER CURIAM. - Upon a rehearing En Banc, a majority
of the court adheres to the Departmental opinion heretofore
filed herein. The judgment is therefore reversed,
with directions to grant a new trial, with reference to
respondent Ford Motor Company, and affirmed as to
respondent St. John Motors.