On Rehearing. Able counsel for appellant, on rehearing, asseverate with some acerbity that we have misapplied the law to the evidence in the case. In deference to their cogent argument, we will further delineate our views. It would, of course, be purposeless to include herein a copy of the pleading, same being a part of the record.
To us the plain interpretation of the evidence is that one of the controlling phases of the transaction, certainly a part thereof, was the recommending and furnishing of the plan by Crane Company as depicting a suitable heating plant for the house. The furnace and other equipment were purchased for the purpose of installing therein a heating plant in accordance with said plan. The preparation and *Page 478 delivery of the plan by the defendant can be construed, and we do, as but part and parcel of the business of selling the boiler, heating equipment, and supplies for the house.
Being so, if the boiler without a proper safety device, as installed in the heating plant designed by Crane Company, was an inherently or imminently dangerous instrument when put to its intended use (and this fact is supported under the plaintiff's evidence), its dangerous character or quality being unknown by and not made known to the plaintiff, there would be liability for injuries which may reasonably be contemplated as likely to result therefrom to him, or to any person, not himself at fault.
Of such import are the authorities hereinabove cited, to-wit: Huset v. J.I. Case Threshing Machine Co., 8 Cir., 120 F. 865, 61 L.R.A. 303; Sterchi Bros. Stores v. Castleberry, 236 Ala. 349,182 So. 474; Altorfer Bros. v. Green, 236 Ala. 427,183 So. 415; Miles v. Chrysler Corp., 238 Ala. 359, 191 So. 245. See also Crane Co. v. Sears, 168 Okl. 603, 35 P.2d 916; Grinnell v. Carbide, etc., Corp., 282 Mich. 509, 276 N.W. 535; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.2d 122; Kentucky Independent Oil Co. v. Schnitzler, 208 Ky. 507,271 S.W. 570, 39 A.L.R. 979; Restatement of the Law of Torts, Section 398, pp. 1084-1085.
We therefore cannot accede to the view of appellant that the piping and heating plan furnished by the defendant for use in the house plays no part in the consideration of the case and that because forsooth the boiler, equipment, and supplies were sold by defendant as unassembled articles, the rule of liability, hereinabove, does not apply. Nor do we perceive that liability is affected by the fact that the articles were "billed through a friendly plumber," (Mandy).
This rule of liability is referred to by appellant as the "doctrine of manufacturer's liability." It is so termed in decisions of the courts, but liability under the law is not restricted solely to manufacturers, but extends to vendors and suppliers, generally, of imminently dangerous instruments when furnished or supplied under the circumstances treated hereinabove.
If such doctrine is to have a reasonable application in our modern industrial age, logic and common sense dictate that it should be applicable to any instrument inherently dangerous or becoming so when applied to its intended use in the usual and customary manner, (44 C.J. 888), when furnished or supplied by the manufacturer or vendor who in the circumstances should know of its intrinsically dangerous qualities to a user not at fault, who is not so apprised. If so, it seems to us not an unreasonable application of the principle to hold that if the boiler and equipment, when used in the heating plant as designed, were such an instrumentality and were supplied and used under such circumstances, there would be consequent liability for injury proximately resulting therefrom, providing there was no fault on the part of the user (plaintiff) proximately contributing to such injury. If this be a proper application of the principle, and to us it seems undoubtedly so, it is as equally certain that the evidence adduced pending trial was sufficient to require submission of the issue to the jury, as was done by the learned trial court. We therefore maintain our original view that defendant was not due the general affirmative charge.
The special charges of defendant claiming exoneration from liability if the boiler, etc., were used before being "turned over" or "delivered" to Davies, Sr., and before final tests by Mandy had been made, are again urged upon the court as stating correct legal propositions.
But we think the charges are faulty in several respects:
(1) The rule of concurring negligence which recognizes the liability of joint tort feasors to third persons not at fault is overlooked. The underlying principle of law is well understood. "Negligence, to render a person liable, need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes, other than plaintiff's fault, is the proximate cause of the injury." 45 Corpus Juris 920, Section 485 E. Alabama Great So. R. Co. v. Moundville Motor Co., 241 Ala. 633, 4 So. 2d 305, 306; 15 Ala.Dig., Negligence, 60, 61, 90. Davies, Sr., is not the plaintiff. A third party brings the action. The charges ignore the fact that the plaintiff is a stranger to the transaction and in no way at fault in the damage to his property. They seek to acquit the defendant of liability if the injury resulted from Davies, Sr's., premature use of the system, even though by reason of an error in design, known to defendant, the boiler *Page 479 may have been intrinsically dangerous when used as contemplated and as a proximate result thereof (concurring with the alleged negligence of Davies, Sr.) the damages were inflicted. The defendant was liable whether the alleged defective boiler was the sole proximate cause or was a concurring proximate cause with the claimed misuse or premature use of the system by Davies, Sr.
The effect of the charges was to mislead the jury to believe that if Davies, Sr., prematurely fired the system, there was no liability, regardless of whether or not the boiler as designed was imminently dangerous and concurred with the other averred negligence (that of Davies, Sr.) in proximately causing the plaintiff's damages.
(2) The charges are otherwise defective, we think, such as assuming that there had to be an actual "turning over" or "delivery" of the system to Davies, Sr., by Mandy and that Mandy (not some other competent person) must have been the one to have made the final test. The criterion is whether the instrumentality was intrinsically dangerous, was supplied under circumstances rendering the supplier liable, and whether the plaintiff's damages proximately resulted from this intrinsically dangerous, defective instrument — and this regardless of whether or not there had been an actual turning over or delivery of the system to Davies, Sr., and also irrespective of whether the final tests had been made by Mandy or some other competent person.
The two charges impress us as stating incorrect propositions of law, their refusal being justified.
This court adheres to the opinion that the judgment should be affirmed.
Opinion extended.
Rehearing denied.