Summary
In Terry v. Bottling Co., 263 N.C. 1, 138 S.E.2d 753 (1964), Justice Sharp in a concurring opinion made an exhaustive survey of the privity requirement in this State and other jurisdictions and discussed many of the reasons advanced for its loss of vitality in other jurisdictions. Perhaps the rationale for abandoning the requirement in negligence actions applies with equal force to breach of warranty actions. However, we find no case in this State accomplishing for breach of warranty actions what Corprew accomplished for negligence actions. Wyatt remains the applicable rule in this case.
Summary of this case from Byrd v. Rubber Co.Opinion
Filed 25 November, 1964.
1. Food 1 — A manufacturer, processor and packager of food and the bottler of drink intended for human consumption are held to a high degree of responsibility to the ultimate consumer to see that the food and drink are not injurious to health, and may be held liable by the ultimate consumer on the ground of negligence for injuries proximately resulting from the failure to use such care.
2. Same; Sales 8 — Subject to the exception of food or drink in sealed packages with labels bearing representations to the ultimate consumer, the ultimate consumer or subvendee may not ordinarily hold the manufacturer or processor of food or the bottler of drink liable on the theory of breach of implied warranty of fitness for human consumption, since there is no privity of contract.
3. Same — Evidence tending to show that plaintiff was injured by a deleterious substance contained in a bottled drink purchased from a retailer and bottled by defendant held insufficient to be submitted to the jury, since the evidence fails to show privity of contract between plaintiff and defendant.
APPEAL by plaintiff from Walker, S. J., July 13, 1964 Civil Session, GASTON Superior Court.
Dolley Harris, by Steve Dolley, Jr., Gastonia, and Charles J. Katzenstein, Gastonia, for plaintiff appellant.
Hollowell Stott, by Grady B. Stott, Gastonia, for defendant appellee.
SHARP, J., concurring.
The plaintiff instituted this civil action to recover damages for temporary illness allegedly caused by deleterious matter (a green fly) in a soft drink bottled by the defendant and sold in due course to the plaintiff by the Arlington Mill lunch room. The plaintiff relies upon warranty of fitness for human consumption and a breach of that warranty. The defendant entered a general denial.
The plaintiff offered evidence the defendant bottled the drink containing the deleterious matter. She bought the drink from a subvendee. After consuming a part of the contents of the bottle, she became violently sick, was required to pay doctor bills, medical expenses, and suffered loss of time from her work. At the close of the plaintiff's evidence, the court entered judgment of compulsory nonsuit. The plaintiff appealed.
The plaintiff in this action seeks to recover for that: (1) The defendant bottled and sold the drink containing the deleterious substance, knowing that it would be resold for human consumption; (2) the bottler's implied warranty of fitness extended to the ultimate consumer because of the knowledge that the contents of the bottle would be resold in the condition in which it left the bottler's plant. The plaintiff cites as authority the decision in Ward v. Morehead City Sea Food Co., 171 N.C. 33, 87 S.E. 958 (a negligence, not a warranty case); the dissenting opinion in Thomason v. Ballard Ballard Co., 208 N.C. 1, 179 S.E. 30; Simpson v. American Oil Co., 217 N.C. 542, 8 S.E.2d 813; Davis v. Radford, 233 N.C. 283, 63 S.E.2d 822, 24 A.L.R.2d 906; Perfecting Service Co. v. Product Development Sales Co., 261 N.C. 660, 136 S.E.2d 56.
Authorities generally hold that the manufacturer, processor and packager of food and the bottler of drinks intended for human consumption are held to a high degree of responsibility to the ultimate consumer to see to it that the food and drink are not injurious to health. Responsibility to the ultimate consumer arises upon a failure to use the required degree of care and is grounded in negligence. Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21. Warranty — actual or implied — is contractual. It does not extend beyond the parties to the contract. "Because of the danger to life and health, the manufacturer and packer of foods and the bottler of beverages intended for human consumption, by offering them for sale, impliedly warrant the fitness of their products for such use. As pointed out, however, the warranty extends no further than the parties to the contract of sale." Prince v. Smith, 254 N.C. 768, 119 S.E.2d 923; Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Thomason v. Ballard Ballard Co., 208 N.C. 1, 179 S.E. 30.
"A warranty is an element in a contract of sale and, whether express or implied, is contractual in nature. Only a person in privity with the warrantor may recover on the warranty; the warranty extends only to parties to the contract of sale. Murray v. Bensen Aircraft Corporation, 259 N.C. 638, 131 S.E.2d 367; Prince v. Smith, 254 N.C. 768, 119 S.E.2d 923; Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21. A manufacturer is not liable to an ultimate consumer or subvendee upon a warranty of quality or merchantability of goods which the ultimate consumer or subvendee has purchased from a retailer or dealer to whom the manufacturer has sold, for there is no contractual relation between the manufacturer and such consumer or subvendee. Rabb v. Covington, 215 N.C. 572, 2 S.E.2d 705; Thomason v. Ballard Ballard Co., 208 N.C. 1, 179 S.E. 30. There is an exception to this rule where the warranty is addressed to the ultimate consumer, and this exception has been limited to cases involving sales of goods, intended for human consumption, in sealed packages prepared by the manufacturer and having labels with representations to consumers inscribed thereon. Simpson v. American Oil Company, 217 N.C. 542, 8 S.E.2d 813." Perfecting Service Co. v. Product Development and Sales Co., 261 N.C. 660, 136 S.E.2d 56, 62.
In this case the evidence fails to show privity of contract between the plaintiff and the defendant. Without such privity there is no warranty liability. The judgment of nonsuit is
Affirmed.