#### Kerwin, Appellant, vs. Chippewa Shoe Manufacturing Company, Imp., Respondent.

*May 5*

May *23, 1916.*

*Negligence: Injury from, nails in shoes: Liability of*manufacturer.

A manufacturer of shoes who fastened the soles with nails in such a way as to give them the appearance of "being sewed is not lia-. ble to one who was induced by such deception to purchase the shoes from a retailer and was injured by nails penetrating his foot and causing infection, — the nailed sole not being inherently dangerous, and the deceptive or negligent manner of constructing the shoe not rendering it so imminently dangerous to the life, limb, and health of the wearer that the manufacturer ought to have anticipated that it naturally and probably would produce, such an injury.

*429Appeal from an order of tbe circuit court for Douglas county: James Wickham, Judge.

*Affirmed.*

This is an action brought by tbe plaintiff to recover damages for injuries alleged to bave been sustained by reason of tbe wrongful and negligent conduct of tbe defendants.

Tbe complaint alleges that tbe *Chippewa Shoe Manufac- ' luring Company*owned and operated a shoe factory in tbe city of Chippewa Falls; that they were engaged in tbe manufacture and sale of men’s shoes to retail dealers; that tbe company manufactured a shoe known as “Original Chippewa Shoes” and sold some of these shoes to tbe defendant Rovelsky, a retailer; that in tbe month of July, 1914, tbe plaintiff called at tbe store of tbe defendant Rovelsky for tbe purpose of buying a pair of shoes; that be explained to Rovelsky that be wanted shoes that bad tbe soles sewed on and not nailed; that Rovelsky sold him a pair of “Original Chippewa Shoes,” representing that tbe soles were sewed on; that shortly after plaintiff bad purchased tbe shoes and while wearing them in tbe usual way a nail or nails in the sole of tbe left shoe penetrated tbe plaintiff’s left foot, from which infection resulted, and tbe plaintiff bad to bave several operations to save bis leg, and finally bad to bave some of tbe bones of tbe foot removed; that these shoes, in truth and in fact, bad nails in tbe soles to fasten them; that this fact was known to tbe defendant shoe company at tbe times it made and sold tbe shoes to Rovelsky and at tbe time plaintiff bought them; that tbe defendant shoe company knew such nails were dangerous to the life, limb, and tbe health of any person wearing them; that tbe company so constructed tbe shoes as to give them tbe appearance of being sewed and that this was intended to and did deceive tbe public and tbe plaintiff, which deception induced tbe plaintiff to buy and wear tbe shoes and to cause him the injuries complained of. It is further alleged that tbe defendant shoe company in tbe exercise of reasonable care would bave known that tbe negligent and improper placing and locating of tbe nails would cause injuries such as tbe *430plaintiff received; that plaintiff was in tbe exercise of ordinary care in tbe purchase and use of tbe shoes, and that be did not and in tbe exercise of ordinary care could not know of tbe existence of tbe nails or of tbe danger therefrom until after bis foot bad been penetrated and tbe resulting infection bad been occasioned.

Tbe defendant tbe *Chippewa Shoe Manufacturing Company*demurred to tbe complaint on tbe ground that tbe complaint does not state facts sufficient to constitute a cause of action. Tbe defendant J. Eovelsky did not demur, but answered tbe complaint, so tbe question of bis liability is not here involved. Tbe circuit court sustained tbe demurrer of tbe defendant tbe *Chippewa Shoe Manufacturing*Company, and it is from tbe order sustaining tbe demurrer that this appeal is taken.

Eor tbe appellant the cause was submitted on tbe brief of *W. P. Crawford.*

He cited *Hasbrouck v. Armour & Co.*139 Wis. 357, 121 N. W. 157; *Haley v. Swift & Co.*152 Wis. 570, 140 N. W. 293; *Statler v. Ceo. A. Bay M. Co.*195 N. Y. 478, 88 N. E. 1063; *MacPherson v. Buiclc M. Co.*153 App. Div. 474,138 N. Y. Supp. 224; *OldsM. Works v.*Shaffer, 145 Ky. 616, 637, 140 S. W. 1047; *Johnson v. Cadillac M. C. Co.*194 Eed. 497; *Cadillac M. C. Co. v. Johnson,*221 Fed. 801; *Qerkin v. Brown & Sehler Go.*177 Mich.'45, 143 N. W. 48; *Pullman Co. v. Ward,*143 Ky. 727, 137 S. W. 233; *Mazetti v. Armour & Co.*75 Wash. 622, 135 Pac. 633; *Ketterer v. Armour & Co.*200 Fed. 322; *Roberts v. Anheuser Busch B.*Asso. 211 Mass. 449, 98 N. E. 95; *Wilson v. J. Q. ■& B. S. Ferguson Co.*214 Mass. 265, 101 N. E. 381; *Peterson v. Standard Oil Co.*55 Oreg. 511, 106 Pac. 337; *Cunningham v. C. B. Pease H. F. Co.*74 N. II. 435, 69 Atl. 120, 20 L. E. A. N. s. 236; *Marsh v. Usk H. Co.*73 Wash. 543, 132 Pac. 241.

For tbe respondent there was a brief by *Murphy & Broiune,*attorneys, and *T. J. Connor,*of counsel, and oral argument by *J. Howard Browne.*

*431SibbecKER, J.

Tbe plaintiff claims that tbe defendant sboe company is liable to bim under tbe rule wbicb bolds a manufacturer or dealer in articles liable to persons other than .tbe immediate purchaser for injuries caused by tbe wrongful and negligent conduct of tbe manufacturer or dealer. Tbe general rule of liability of a manufacturer or seller of an article to persons other than bis immediate purchaser was considered and applied in *Hasbrouck v. Armour & Co.*139 Wis. 357, 121 N. W. 157. It was there held that, as a general rule, a manufacturer or dealer of an article is not liable to persons other than tbe immediate purchasers of such articles, for want of any contractual relationship and privity between tbe manufacturer and tbe persons buying from tbe manufacturer’s immediate purchaser. Tbe court also recognized tbe well established exceptions to this rule under which it has been held that tbe law imposes a duty on a manufacturer or seller of an imminently dangerous article, in favor of tbe user or consumer of such article, to exercise care for their protection commensurate with tbe peril and dangers involved. Under tbe following exceptional facts and circumstances a manufacturer or dealer was considered to be liable to third persons if such article causes an injury wbicb was reasonably to be anticipated:

> (1) “A manufacturer or dealer who puts out, sells, or delivers, without notice to others of its dangerous qualities, an article wbicb invites a certain use, and which article is not inherently dangerous, but wbicb by reason of negligent construction be knows to be imminently dangerous to life and limb, or is manifestly dangerous when used as it is intended to be used.”'

> (2) “A manufacturer or dealer who puts out and sells articles inherently dangerous, without notice of their dangerous nature, or with a misleading notice, or negligently in any other way.”

> (3) “A manufacturer or dealer who makes and sells an article intended to preserve or affect human life is liable to third persons sustaining injury caused by bis negligence in preparing, compounding, labeling, or directing tbe use of tbe article.”

*432It is clear from the facts alleged in tbe complaiht tbat the last foregoing (3) class of cases does not embrace this case. It remains to be ascertained whether the facts alleged constitute a cause of action which is embraced in either of the other two classes above specified. It is obvious from the allegations of the complaint that the presence of a nail in the sole of the shoe plaintiff wore is the danger complained of in this case as the proximate cause of his injury. The allegations of the complaint must be interpreted in view of this fact. The allegations to the effect that plaintiff desired and could only wear shoes having sewed soles and that the defendant Rovelsky warranted the shoes to be such shoes cannot affect the responsibility of the manufacturer. Much stress is placed in argument on the allegation that the defendant knew, or in the exercise of reasonable care should have known, that nails were used in soling the shoes and that such nails were imminently dangerous to the life, limb, and health of the wearer, in that such nails would, without the knowledge of the wearer, “penetrate through the skin into the flesh of the foot, causing and resulting in infection, blood-poisoning, and the consequences thereof.” We must interpret these allegations in their ordinary significance in the light of common knowledge. It is obvious that a nail used to fasten a shoe sole is not of an inherently dangerous nature. To say otherwise would be a contradiction of the universal experience of mankind in wearing “nail-soled shoes.” Can it then be said that a nail used to fasten on a shoe sole, in a deceptive or negligent manner in the construction of the shoe, rendered the shoe so imminently dangerous to the life, limb, and health of the wearer that the defendants ought to have anticipated that it naturally and probably would produce such an injury? The facts alleged do not present a case of such an inherent danger in the material used or the manner of manufacturing the shoe. Nor do the facts stated show that the alleged negligent manner of constructing the shoe made it an imminently dangerous ar-*433tide in the light of the nature of the defect and the uses and purposes for which it was designed.

Under these facts and circumstances of the case it must be held that the complaint fails to state a cause of action against the defendant *Chippewa Shoe Manufacturing*Company, and the court properly sustained the demurrer to the complaint.

*By the Court.*— The order appealed from is affirmed.

KeRWIN, J., took no part.