542
THE GREEN BAG
ufacturers and vendors of personal property." relieved from all liability for injuries caused by Of these he says: the manner in which he conducts it. He is "The tendency throughout the United States allowed to reap the profits enhanced by the is, with but few exceptions, to regard the act of saving inherent in cheap labor, insufficient sale as terminating all liability on the part of equipment, inferior material, and generally incompetent and careless supervision and the maker or vendor of a defectively con structed article or structure, unless the article management, while those who must use his is either a drug-chemical or explosive, and so product bear the burden and pay the price in 'imminently dangerous to human life,' or the insufficient protection to the safety of their defect is known to and concealed by the vendor. persons and property. To encourage com "In New York and some other statesit would merce and industry by removing all duty and appear that where the maker sells or provides incentive to protect the public is to invite wholesale sacrifice of individual rights on the an article for immediate use in its existing con dition, and the defect is not patent to any altar of commercial greed. A similar public reasonable inspection, the maker is liable to policy in railroad matters throughout the one who may be expected to come in contact United States has resulted in the yearly sac with the article in the course of such use if he rifice of thousands of lives and injury to tens be injured, but if the defect be patent, if it is of thousands of persons, both employees, pas known or could probably be discovered by the sengers, and others. It would appear to be high time to consider whether this price is not purchaser or him to whom the article is sup too high to pay for industrial expansion, and plied if he properly perform his duty of ex amination, then the liability, if any, is upon whether those who profit by the operation of him who with knowledge, or (probably) with a business should not bear at least the burden of exercising reasonable competence and care means of knowledge, uses the article for a pur therein. That such a burden is not too oner pose for which it is unfit." He inclines to favor the broad doctrine of ous, that such care is compatible with the the rule of Brett in Heaven v. Fender, and profitable conduct of business, is shown by the fact that reputable manufacturers do criticizes Wharton's doctrine that an inter habitually the world over exercise the great vening human agency breaks the causal con nection even where not actively negligent. est care in order that the reputation of their He also criticizes the common assumption that products may be maintained. Surely it is there is a limited class of articles such as not too much to require of the others that drugs and explosives which are peculiarly they shall take at least equally as great care to protect their patrons, the public, who use dangerous and the manufacture of which im poses obligations different from that arising their products, from injury. While it is un doubtedly to the interests of society, espe from the manufacture of ordinary merchan dise. The test he puts is the probability of cially in a country the natural resources of danger to a person or class in case of negligent which are still comparatively undeveloped, to concealed defects and not the acquaintance of encourage trade and manufacture, it cannot the parties. Astothe theory that public policy be to the interest of any community to en requires that manufacturers be not subject to courage carelessness and disregard of human annoying suits, he contends that it is merely life and property therein." He distinguishes liability in cases of sale, a reflection upon the administration of justice. Of the broader ground of public policy, he says: and classifies it as a separate sort of liability "While it is highly burdensome to require arising under the same doctrine of probability that the manufacturer shall answer to all the of injury. The wrong consists in the sale or world that the article he makes contains no delivery of the article and not in the original hidden defect which he himself could not by negligence whereby the concealed defect arose. proper conduct of his business prevent, it is not too much to ask that he shall conduct his TORTS (Strikes and Boycotts) business carefully, othenvise the manufacturer Dean William Draper Lewis contributes to who obtains the profits from the business is the August American Law Register (V. Ixiii,
