Opinion
No. 30301.
January 30, 1933. Suggestion of Error Overruled February 27, 1933.
1. SALES.
Manufacturer, bottler, or packer of foods or beverages for immediate human consumption is bound by implied warranty of wholesomeness running to consumer.
2. SALES.
Retail seller of canned food in original package for immediate human consumption, purchased by seller from reliable packer without negligence and without reason to suspect defect, held not liable to consumer on implied warranty of fitness and purity.
APPEAL from circuit court of Tallahatchie county. HON. J.F. DEAN, Special J.
Caldwell Caldwell, of Charleston, and Bates, Shea Frazer, of Memphis, Tenn., for appellant.
There is no implied warranty in case of food sold for consumption by animals.
Luke v. Freund, 27 Kan. 664, 51 Am. Rep. 429; National Cotton Oil Company v. Young, 85 S.W. 92.
The operator of a butcher shop and smoke house impliedly warrants the quality of meat prepared and sold by him.
Craft v. Parker, 55 N.W. 812; Weideman v. Keller, 49 N.E. 210; Rinaldi v. Mohican Company, 121 N.E. 471; Farrell v. Manhattan Market Co., 81 N.E. 481; Van Bracklin v. Fondra, 7 Am. Dec. 339.
The manufacturer or packer of food sold for human consumption impliedly warrants its fitness for such use.
Ketterer v. Armour, 247 Fed. 921; Nelson v. Armour Packing Company, 90 S.W. 288; Cutarri v. Swift Co., 95 A. 931; Watson v. Augusta Brewing Co., 1 L.R.A. 1178; Doyle v. Fuerst, 56 So. 908.
A druggist who manufactures ice cream is liable.
Race v. Krum, 118 N.E. 853.
Where a defendant prepares meats, salads and food stuffs, he is liable on an implied warranty to those who suffer by reason of eating the same.
Walters v. United Grocery Co., 172 P. 473.
A country merchant, negligently allowed rat poison "Rough on Rats" to become mixed with his flour, as a result of which several of his tenant farmers were injured is liable.
Patty Barfield v. Heinman, 207 S.W. 58.
Some states where the Uniform Sales Act has been adopted, hold a retailer liable on implied warranty of a sealed package on account of the provisions of said act.
Griffin v. James Butler Grocery Company, 156 A. 636; Ward v. Great Atlantic Pacific Tea Company, 120 N.E. 225.
A person contracting to serve meals impliedly warrants the purity of the food prepared and served by him, or his agents.
Malone v. Jones, L.R.A. 1915-A, 328; Bishop v. Weber, 52 Am. Rep. 715.
In the case of the sale of canned merchandise the consumer and not the retailer is the one who has an opportunity to determine the condition of the article. The very manner in which the article is sold, to-wit, in the sealed cans, is determinative that the retailer has no opportunity of inspection.
The common-law rule on the subject of implied warranty of quality or fitness was stated, and the cases were classified by Mellor, Justice in delivering the judgment of the Queen's Bench in Jones v. Just, giving this as a result: The cases may, we think, be classified as follows: First where goods are in esse and may be inspected by the buyer, and there is no fraud on the part of the seller the maxim caveat emptor applies, even though the defect in them is latent, and not discoverable on examination, at least where the seller is neither the grower nor the manufacturer.
Benjamin on Sales (6 Ed.), page 713.
The sealed package doctrine is recognized.
Meacham in Section 1347, note 1.
A retailer of canned foods is not liable for defects therein.
Julien v. Laubenberger, 38 N.Y.S. 1052; Trafton v. Davis, 86 A. 179; Fleetwood v. Swift Co., 107 S.E. 909; Bell v. Bowers Stores, 3 Tenn. App. 590; Jackson Coca Cola Co. v. Grubbs, 143 Miss. 590, 108 So. 583.
Prima facie, then, when an article is sealed and placed on the market for human consumption, it is as though the consumer had bought it directly from the manufacturer.
Curtiss Candy Company v. Johnson, 141 So. 764.
It would seem passing strange that after all these years of litigation in this state involving the canning, bottling and packing of goods and drinks no lawyer had discovered that a dealer was liable on an implied warranty until the appellees in this case found and ate a worm in a can of tomatoes. Can it be that astute and learned lawyers who have been deterred from bringing suits because they could not get jurisdiction (as they understood the law to be) because manufacturers or bottlers lived elsewhere than in the county where the goods were sold have been mistaken in their interpretation of the law as to the liability of the dealers in such cases?
While there is authority to the contrary, it comports better with justice to hold that where a dealer sells to his customer an article in the original package in which it is put up by the manufacturer, and the customer knows as much about the article as the dealer, there is no implied warranty although the dealer knows that the customer buys it for food. No rule of law should imply a warranty of that which is impossible for a defendant to know by the exercise of any skill industry or investigation, however great. In other word neither law nor reason should require impossibilities.
11 R.C.L. 1124.
A railroad company operating its own dining cars is not liable for injury to a patron by partaking of canned food served in regular course upon the car, where the food was purchased from a reputable dealer and bore a well known brand, etc., and there was nothing in its appearance to indicate it was not fit for food.
Bigelow v. Maine Central R.R. Co., 43 L.R.A. (N.S.) 627.
A distributor is not liable on implied warranty for imperfections in a plug of tobacco.
Pillars v. Reynolds Tobacco Co., 117 Miss. 490.
Under the common-law rule long in force in this state, the warranty of merchantable quality was limited to sales by a manufacturer or grower.
Ryan v. Progressive Grocery Stores, 225 N.Y. 388, 175 N.E. 105, 74 L.R.A. 339.
A retail dealer of soap is not liable to a consumer for an injury by a needle imbedded in a cake of soap by the manufacturer, where he did not know of its presence, which could not have been ascertained by him in the exercise of ordinary care.
Hasbrouck v. Armour Co., 23 L.R.A. (N.S.) 876, 121 N.W. 157.
A retailer purchasing from a reputable manufacturer or dealer, without imperfections discoverable in the exercise of ordinary care, by persons skilled and experienced in dealing and supplying goods to general public, is not liable to a customer on implied warranty.
Dothan Chero-Cola Bottling Co. v. Weeks, 80 So. 834.
A retailer is not liable on a breach of implied warranty on an article sold in the ordinary course of trade, where he did not manufacture same and where there was no allegation that retailer had any knowledge that the article was infected.
Kress v. Lindsey, 13 A.L.R. 1170.
There is a well defined line of cases that holds that retail dealers in selling canned goods for immediate use are not liable, unless they can be charged with negligence in the purchase of food, or with knowledge that the contents were unfit for consumption. These cases are determined upon the well recognized fact that the dealer is not the manufacturer of the goods sold, is not in a position to know the contents better than the purchaser, neither the purchaser nor the vendor having had any opportunity to examine and know the condition of the goods contained in the cans sold.
Tomlinson v. Armour, 19 L.R.A. (N.S.) 923; Julian v. Laubenberger, 16 Misc. 648, 38 N.Y.S. 1055; Mazzetti v. Armour, 74 Wn. 622, 48 L.R.A. (N.S.) 213.
Where a dealer sells an article of merchandise in the original package as it comes from the manufacturer, and the customer buys it knowing that there has been no inspection by the dealer, there is no implied warranty, and, in the absence of an express warranty or representation, such dealer is not liable to the purchaser for damages caused by any deleterious substance in such merchandise the presence of which he had no knowledge.
McMurray v. Vaughn's Feed Store, 157 N.E. 567.
A wholesale dealer who buys a standard paint drier in the open market without knowledge that it is explosive or inflammable if used with ordinary care is not bound to ascertain its qualities or warn customers of possible danger in its use, or liable to one for injury by an explosive when he attempts to transfer it from one receptacle to another by artificial light.
Peaslee-Gaulbert Co. v. McMath, 39 L.R.A. (N.S.) 564.
Jas. Stone Sons, of Oxford, for appellee.
It has been well settled in Mississippi that there is no implied warranty under the law of the soundness or wholesomeness in the sale, either by retailer or manufacturer, of food for animals.
Dulaney v. Jones Rogers, 100 Miss. 835; Dunnagin Whitaker Co. v. Montgomery, 117 Miss. 666, 78 So. 580; Royal Feed Milling Co. v. Thorn, 142 Miss. 92, 107 So. 282.
The manufacturer is liable to the ultimate consumer for damage resulting from defects and impurities of the manufactured article which consisted of foods, beverages, drugs, condiments and confections, to be taken into the human stomach, on the grounds of negligent preparation of such article; and likewise held a distributor of such article not negligent where he had no cause to inspect or know of such defects or impurities.
Pillars v. R.J. Reynolds Tobacco Co. et al., 117 Miss. 490, 78 So. 365.
Where a person warrants the soundness of his products to a dealer under an express warranty, such express warranty does not extend to the purchasers from such dealer.
Pease Dwyer v. Somers Planting Co., 130 Miss. 147, 93 So. 676.
When a manufacturer makes bottles and sells to the retail trade to be again sold to the general public, a beverage represented to be refreshing and harmless, he is under a legal duty to see to it that in the process of bottling no foreign substance shall be mixed with the beverage, which, if taken into the human stomach, will be injurious.
Jackson Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791; Rainwater v. Coca-Cola Bottling Co., 131 Miss. 315; Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305; Coca-Cola Bottling Co. v. Grubbs, 143 Miss. 590, 108 So. 732; Coca-Cola Bottling Works of Greenwood v. Simpson, 158 Miss. 390, 130 So. 479; Curtis Candy Co. et al. v. Johnson, 141 So. 764.
It is argued orally with much ability, by the appellees, that an implied warranty of soundness arises only in cases where the food sold is for human consumption. After a careful consideration of the question, our conclusion is that, according to the weight of authority in this country, there is an implied warranty of soundness in the case of the sale or provisions intended for human consumption, but with food for other purposes there is no implied warranty of soundness. This is put upon the grounds of public policy, the controlling reason being the regard for human life and human health.
Dulaney v. Jones Rogers, 57 So. 226.
Appellants were retail dealers, and this court said, in this opinion, that they were liable for goods sold for human consumption, but not for food sold for other purposes.
Dulaney v. Jones Rogers, 57 So. 226.
As a general rule in all sales of food or beverages for immediate consumption, by a dealer or ordinary trader, there is an implied warranty of fitness and wholesomeness for consumption, and such dealer or trader is liable for injury resulting from the fact that such food or beverage are not fit and wholesome.
26 Corpus Juris, page 783, par. 91; Craft v. Parker, 55 N.W. 812, 21 L.R.A. 139; Ketterer v. Armour, 247 Fed. 921, L.R.A. 1918D, 798; Nelson v. Armour Packing Co., 90 S.W. 288, 6 Ann. Cas. 237; Wiedeman v. Keller, 49 N.E. 210; Sloan v. Woolworth Co., 193 Ill. App. 620; Chapman v. Roggenkamp, 182 Ill. App. 117; Doyle v. Fuerst, 56 So. 908, 40 L.R.A. (N.S.) 460; Race v. Krum, 118 N.E. 853, L.R.A. 1918F, 1172; Rinaldi v. Mohican Co., 121 N.E. 471; Weinberg v. P.D. Brewing Co., 174 N.Y. 69; Zenkel v. Onedia County Creameries, 171 N.Y. 676; Muller v. Childs Co., 171 N YS. 541; Walters v. United Grocery Co., 172 P. 473, L.R.A. 1918, 519; Catani v. Swift Co., 95 A. 931, or L.R.A. 1917B, 1272.
Under this head also, is included the implied warranty which is raised in the sale of provisions, where they are sold for immediate domestic use by dealers and common traders in provisions, that they are sound and wholesome, on the ground that such a warranty is necessary for the preservation of health and life.
Story's Sales (4 Ed.), par. 373; 10 Am. Eng. Enc. Law, 153; Winsor v. Lombard, 18 Pick. 62; Heineman v. Barfield (Ark. 1918), 207 S.W. 62.
Public safety demands that, in all sales of provisions for domestic use by a retail dealer, there should be an implied warranty of the fitness and wholesomeness of said provisions for consumption.
Chapman v. Rogganhamp, 183 Ill. App. 117.
There is an implied warranty of the unwholesomeness of canned goods by a retailer for immediate consumption.
Sloan v. Woolworth Company, 183 Ill. App. 620; Griffin v. James Butler Grocery Co. (N.J.), 156 A. 636; Ward v. Great Atlantic Pacific Tea Co., 231 Mass. 90, 120 N.E. 225, 5 A.L.R. 242.
Where the sale of articles of food is for immediate consumption, there is an implied warranty that the food is wholesome and fit for the purpose intended irrespective of the seller's knowledge of disease or defects therein.
35 Cyc. 407.
It is practically everywhere agreed that, where a dealer or ordinary trader sells goods for immediate consumption by the buyer, an implied warranty arises that the goods are wholesome and fit for human food.
Malone v. Jones, L.R.A. 1915A, 328; Bishop v. Weber, 52 Am. Rep. 715; 2 Meachem on Sales, par. 1356; Benjamin on Sales (7 Ed.), 661; Swank v. Battaglia, L.R.A. 1917F, 471.
The law is well settled in the United States that the retailer or dealer in foods or provisions, when sold for immediate consumption or domestic use, impliedly warrants same to be wholesome and free from all impurities or foreign substance, and fit for human consumption; and, the reason for it is put upon the grounds of public policy, the controlling reason being the high regard of the law for human life and human health.
Dulaney et al. v. Jones Rogers, 100 Miss. 835; Craft v. Parker, 85 N.W. 812; Ketterer v. Armour, 247 Fed. 921; Nelson v. Armour Packing Co., 90 S.W. 288; Wiedeman v. Keller, 49 N.E. 210; Sloan v. Woolworth Co., 193 Ill. App. 620; Chapman v. Roggenkamp, 182 Ill. App. 117; Doyle v. Fuerst Kramer, 56 So. 908; Race v. Krum, 118 N.E. 853; Rinaldi v. Mohican Co., 121 N.E. 471; Weinberg v. P.D. Brewing Co., 147 N.Y.S. 69; Zenkel v. Onedia County Cream., 171 N.Y.S. 676; Muller v. Childs Co., 171 N.Y.S. 541; Walters v. United Grocery Co., 172 P. 473; Catani v. Swift Co., 95 Atl. Rep. 931; Heineman v. Barfield, 207 S.W. 62; Hoover v. Peters, 18 Mich. 50 and 54; Griffin v. James Butler Gro. Co., 156 A. 636; Ward v. Great A. P. Tea Co., 120 N.E. 225; Farrell v. Manhatten Market Co., 64 N.E. 481; Swank v. Battaglia, L.R.A. 1917F, 471; Can Bracklin v. Fonda, 7 Am. Dec. 339; Pantaze v. West, 61 So. 42; Malone v. Jones, L.R.A. 1915A, 320; Bishop v. Weber, 52 Am. Rep. 715; Benjamin on Sales, 551, 15 Am. Eng. Ency. Law, 1238; 3 Blackstone's Commentaries — page 165; City's Commentaries, 452; Story's Sales (4 Ed.), par. 375; 10 Am. Eng. Ency. Law, 153; 2 Mechems on Sales, par. 1356; 26 C.J. 782, par. 91; 35 Cyc. 407.
Argued orally by J.H. Caldwell and Ceylon B. Frazier, for appellant.
Appellant is a retail dealer in groceries, including canned vegetables. Appellees purchased of appellant a can of tomatoes, the contents of which, upon being eaten by appellees, made them ill because of certain poisonous substances, which were later and upon a more particular examination found to have been embedded in the contents of said can. Appellant had purchased the can in question along with a large number of like cans from a reputable packer of tomatoes. In fact, appellant had dealt with the said packer for eighteen years, and had purchased from this particular packer more than 7,000 cases of tomatoes of 24 cans to the case, and the can here involved was the only one throughout these years about which any compliant had ever been made. Appellees recovered judgment against the said retail dealer for the consequent injury upon the theory of an implied warranty, and appellant, having brought the case here, raises this sole question: Whether or not a retail dealer of canned food, or food sealed in containers, in the original package, for immediate human consumption, and which the dealer has purchased from a reliable packer, and without negligence, and without any reason to suspect that as to the can or package sold there is anything wrong, is to be held liable to the purchaser upon an implied warranty of fitness and purity.
It is well settled that there is no implied warranty of soundness under the laws of this state in the sale of animal foods. Royal Feed Milling Co. v. Thorn, 142 Miss. 92, 93, 99, 107 So. 282, and cases there cited. It is also well settled that the manufacturer or bottler or packer of foods or beverages for immediate human consumption is bound by an implied warranty that his said products are wholesome and fit for such consumption, and that this warranty runs to the retail purchaser as though the consumer had purchased directly from the manufacturer or packer. Rainwater v. Hattiesburg Coca-Cola Bottling Co., 131 Miss. 315, 95 So. 444; Jackson Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 865, 64 So. 791; Pillars v. R.J. Reynolds Tob. Co., 117 Miss. 490, 78 So. 365, 366; Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97, 44 A.L.R. 124; Jackson Coca-Cola Bottling Co. v. Grubbs, 143 Miss. 590, 108 So. 732; Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305; Coca-Cola Bottling Works of Greenwood v. Simpson, 158 Miss. 390, 130 So. 479; Curtiss Candy Co. v. Johnson (Miss.), 141 So. 762. In Pillars v. R.J. Reynolds Tobacco Co., supra, it is said that, to the general rule that the manufacturer is not liable to the ultimate consumer, because of the absence of contractual relations between them, an exception has been made in cases of human foods in order to protect "the health of the people, and to insure a scrupulous care in the preparation of those articles of commerce so as to reduce to a minimum all danger to those using them."
But the question now here before us has not been expressly decided by this court. There was some general language used in Dulaney v. Jones Rogers, 100 Miss. 835, 840, 57 So. 225, 226, which would indicate that the writer of the opinion in that case entertained the view that a retail dealer would be liable upon "an implied warranty of soundness in the case of the sale of provisions intended for human food," but that case was a suit for feedstuffs for animals. Hence what was said there was in the nature of discussion rather than decision, so far as concerns the present question. In the recent case, Green v. Brown, 159 Miss. 893, 897, 133 So. 153, 154, this court expressly pretermitted decision upon the question "whether . . . the dealer who retails to the consumer . . . food in cans in the original package, is liable upon an implied warranty in any event." It is true that in Pillars v. R.J. Reynolds Tobacco Co., supra, the distributor, as well as the manufacturer, was sued, and that the court, while holding the manufacturer liable, decided at the same time that there was no liability against the distributor, the opinion concluding upon that point that the distributor could not have suspected that poisonous matter was concealed in the food and was not negligent in not discovering the noxious contents thereof. But it is argued that this opinion proceeded upon the theory of negligence, whereas the point now being submitted is not in tort but in contract.
There is a significance, however, in the long line of cases in this state above cited, that not yet in a single one of them has any judgment been obtained against a retail dealer upon an implied warranty of soundness or fitness of sealed or bottled foods or beverages, and we believe in only two of them has the retailer been sued, and these in joinder with the manufacturer. And these cases go back through a period of more than twenty years. This is indicative that in the general opinion of the bench and bar of this state there is no such liability as is insisted upon in the instant case, or else that it has been distinctly anticipated that actions against retail dealers would not be approved by affirmative responses by the jurors taken from the body of the good and lawful men of the county or counties. In either event in all this there is a persuasiveness, in respect to what our conclusion should now be, sufficient to tilt the scales were they otherwise evenly balanced upon the question now before us.
Turning to the decisions in other states, the division of opinion is well defined, and the arguments in support of the opposing views are advanced with strength. We cannot undertake to discuss in detail the numerous cases on the subject, or even to cite all of them here. The reporter will group them in his abstracts of the briefs. For convenient reference it may be said, however, that many of them, and all those that may be regarded as leading, are cited in the annotations 26 C.J., pp. 783, 784, 786, and 11 R.C.L., p. 1124. Among the leading cases relied on by appellee in support of the liability are Wiedeman v. Keller, 171 Ill. 93, 49 N.E. 210, Griffin v. James Butler Gro. Co., 108 N.J. Law, 92, 156 A. 536, and Ward v. Great Atlantic Pacific Tea Co., 231 Mass. 90, 120 N.E. 225, 5 A.L.R. 242. The reasoning of these cases, and those of a similar import, is that the public safety demands that, in all sales of provisions for human consumption, there should be an implied warranty of the fitness and wholesomeness of said provisions, and that, although the retail dealer is not and cannot ordinarily be aware at the time of sale of the unwholesomeness of an article of food which is sealed in a can or other container in the original package, yet the implied liability should be imposed on the retailer because he is in a better position to know and ascertain the reliability and responsibility of the manufacturer than is the retail purchaser, and because the retail dealer is better able to protect himself by way of recoupment against the manufacturer in view of the fact he knows and is in touch with the manufacturer; in other words, that responsibility to the retail purchaser should be placed upon the retail seller, since the dealer is the more often in a better position to protect himself against an original wrong of this kind than is the consumer.
On the other side, there are the cases, which uphold the view, to quote from Walters v. United Gro. Co., 51 Utah, 565, 172 P. 473, 474, L.R.A. 1918E, 519, "that retail dealers in selling canned goods for immediate use are not liable unless they can be charged with negligence in the purchase of such food, or with knowledge that the contents were unfit for human consumption. Those cases are determined upon the well-recognized fact that the dealer is not the manufacturer of the goods sold, and is not in a position to know the contents any better than the purchaser, neither the purchaser nor the vendor having had any opportunity to examine and know the condition of the goods contained in the cans sold." Or to quote from Bigelow v. Maine C.R. Co., 110 Me. 105, 85 A. 396, 398, 43 L.R.A. (N.S.) 627, 629; "It therefore appears that it was utterly impossible for the defendant to know anything more about the contents of this can of asparagus than did the plaintiff. With regard to this knowledge, or means of obtaining it, they were upon a perfectly equal footing. The plaintiff and the defendant necessarily understood the situation precisely alike. There could be no mistake. The plaintiff knew, or should be charged with knowledge, that the defendant could have no possible information concerning the contents of that can which she did not have. We know of no rule of law which will imply a warranty of that of which it is impossible for a defendant to know by the exercise of any skill, knowledge, or investigation, however great. In other words, neither law nor reason require impossibilities."
Such are the opposing views in the cases taken from other states. We therefore return to our own decisions and to the opinion in Pillars v. R.J. Reynolds Tobacco Co., supra, at page 499 of the report of that opinion in 117 Miss., 78 So. 365, 366, from which we have already quoted, and which is that the rule of liability in respect to food for human consumption is "for the protection of the health of the people, and to insure a scrupulous care in the preparation of those articles of commerce so as to reduce to a minimum all danger to those using them." (Italics ours.) The liability is bottomed upon the protection of the public health; but that consideration can be conserved and at the same time the rule can be made to conform to what is equitable and just by placing the entire liability on the manufacturer or bottler or packer who prepares the food and seals it in containers, for there the canner has the opportunity and means, and therefore the duty, to insure that no noxious or injurious substances shall get into the cans — an opportunity and means which the retail dealer does not have, and for which he should not justly be charged.
We have concluded, therefore, that the question stated in the opening of this opinion should be answered in the negative, and, in consequence, that the judgment must be reversed and the case dismissed.
Reversed and dismissed.