Woodrow W. DRIVER
v.
Orville SNOW, Trading as Hanes Hardware and Appliance Company.
No. 391.
Supreme Court of North Carolina.
December 12, 1956.*520 Deal, Hutchins and Minor, by Roy L. Deal, Winston-Salem, for plaintiff, appellant.
Parker & Lucas, Winston-Salem, for defendant, appellee.
HIGGINS, Justice.
At the time the defendant bought the secondhand stove he bought a water tank which had been attached to the stove. The plaintiff bought the stove knowing it was secondhand and knowing it had been used to heat water. He declined to buy the tank. After the purchase he loaded the stove on his truck, took it home, removed the pipes which permitted the water to circulate between the tank and the stove, and plugged the holes left by the removal of the pipes. He installed the stove, built a fire in it, and in about 20 minutes it exploded, seriously and permanently injuring him.
The evidence is sufficient to permit the inference the explosion was caused by the presence of water in the jacket. It is sufficient to permit the inference the water was there when plaintiff bought it. There is no evidence, however, the defendant had such knowledge. There is evidence the stove, though secondhand, had been recently polished; but whether by the defendant or by the person from whom he purchased it, does not appear. Even if polished by the defendant, and there is no evidence to that effect, that would show at most some opportunity to discover the presence of water. But after all, the plaintiff had the real opportunity to make such discovery. He loaded the stove, carried it home, unloaded it, removed the pipes and sealed up the water jacket.
The plaintiff contends, however, that under the circumstances the defendant is liable by reason of the implied warranty that the stove was safe for the purpose for which it was bought. "Implied warranty cannot extend to defects which are visible and alike within the knowledge of the vendee and vendor, or when the sources of information are alike open and accessible *521 to each party." Hudgins v. Perry, 29 N.C. 102; Phillips Petroleum Co. v. Gibson, 5 Cir., 232 F.2d 13. "Where the purchaser is not deceived by any fraudulent representations and demands no warranty, the law presumes that he depends on his own judgment in the transaction and applies the maxim, caveat emptor." Am.Jur., 46, p. 521. "It is generally held upon the sale of a designated, specific article sold as secondhand, that there is no implied warranty as to its quality or fitness for the purpose intended, at least where it is subject to inspection at the time of sale." Am. Jur., 46, p. 454. "There is no implied warranty where the buyer has knowledge equal to that of the seller * * * the presence of the goods at the time of sale open and available for inspection * * * prevents the implication of warranties." 55 C.J., sec. 703, 704, pp. 716, 718; 77 C.J.S., Sales, § 315.
We have examined the authorities cited by the plaintiff and find they do not point to liability in this case. In Dalrymple v. Sinkoe, 230 N.C. 453, 53 S.E.2d 437, the seller represented the article as suitable for the purpose for which it was purchased, whereas it was dangerous for that purpose. Am.Jur., 46, sec. 803, p. 928, quoted in appellant's brief, limits legal liability to "a seller having actual knowledge of a latent defect not discoverable upon ordinary examination." Neither Lexington Grocery Co. v. Vernoy, 167 N.C. 427, 83 S.E. 567, nor Rabb v. Covington, 215 N.C. 572, 2 S.E.2d 705, support plaintiff's position. They deal with latent defects not discoverable by ordinary examination.
In this case the trouble arose because someone left water in the jacket, probably when the tank was detached. The finger of suspicion would point to the man who last used it for heating water. But, as between the plaintiff and defendant, the man who had the last and best opportunity to discover the water would appear to be the man who loaded the stove, unloaded it, removed the pipes, plugged the holes, installed it for use, and built a fire in itthe plaintiff.
This is a most unfortunate case. The plaintiff was gravely and permanently injured. But injury alone does not make out a case of liability. The judgment of the Superior Court of Forsyth County is
Affirmed.
JOHNSON, J., not sitting.