Hanback v. Dutch Baker Boy, 7205.

Decision Date07 August 1939
Docket NumberNo. 7205.,7205.
Citation70 App. DC 398,107 F.2d 203
PartiesHANBACK v. DUTCH BAKER BOY, Inc.
CourtU.S. Court of Appeals — District of Columbia Circuit

T. Edward O'Connell, of Washington, D. C., for plaintiff in error.

Paul J. Sedgwick, of Washington, D. C., for defendant in error.

Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.

STEPHENS, Associate Justice.

This case is here upon a writ of error to the Municipal Court of the District of Columbia. The plaintiff in error (hereafter referred to as plaintiff), an infant, brought suit, through her father as next friend, against the defendant in error (hereafter called defendant), a local bakery, for damages for illness caused by food poisoning. The plaintiff alleged that her mother purchased chocolate eclairs from the defendant, which had knowledge through its servants that they were intended for the plaintiff's consumption, and that she ate one of them, which proved to be unwholesome, with resultant injury. The trial court sustained a demurrer to the complaint upon the ground that "lack of privity of contract bars the right of the infant to recover on implied warranty of wholesomeness and fitness for human consumption." The plaintiff stood on her declaration and judgment was entered for the defendant. We granted a writ. The case presents but one issue — whether a consumer of food, other than a purchaser, can recover against a seller on an implied warranty that the food is wholesome.

The appellant urges that for the protection of the public liability upon the theory of implied warranty should extend to all consumers and that the limitation to "privity of contract" is unreasonable and harsh in its results. But we considered this question in Connecticut Pie Co. v. Lynch, 1932, 61 App.D.C. 81, 57 F.2d 447, and therein held that there could be no recovery on an implied warranty where the suit was by sub-purchaser against manufacturer, this because of lack of contractual relationship between the parties. Under that holding the plaintiff must fail here. She is but the donee of a puchaser. The remedy in such situations in this jurisdiction is in tort for negligence.

In Cushing v. Rodman, 1936, 65 App.D. C. 258, 82 F.2d 864, 104 A.L.R. 1023, we held that a purchaser of food could recover from a retailer upon an implied warranty of wholesomeness notwithstanding that the retailer could not have discovered the defect without destroying marketability of the article. The plaintiff insists that language in the opinion, to the effect that the allowance of recovery upon an implied warranty better protects the consuming public than the restriction of liability to tort, indicates an intention to overrule Connecticut Pie Co. v. Lynch. These statements were but a part of the reasons given for choosing, from divergent lines of authority in other...

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4 cases
  • Picker X-Ray Corporation v. General Motors Corporation
    • United States
    • D.C. Court of Appeals
    • November 28, 1962
    ...them." Connecticut Pie Co. v. Lynch, 61 App.D.C. 81, 57 F.2d 447. This ruling was followed in another food case, Hanback v. Dutch Baker Boy, Inc., 70 App.D.C. 398, 107 F.2d 203. Ordinarily we would feel bound to apply this principle of law to the present case. However, from a study of recen......
  • Vaccarino v. Cozzubo
    • United States
    • Maryland Court of Appeals
    • April 8, 1943
    ... ... Eysink, 129 Md. 367, 379, 100 ... A. 510; Hanback v. Dutch Baker Boy, 70 App.D.C. 398, ... 107 F.2d 203. But ... ...
  • Torpey v. Red Owl Stores, Civ. A. No. 4826.
    • United States
    • U.S. District Court — District of Minnesota
    • February 21, 1955
    ...been established that a purchaser's donee is neither a buyer nor a legal successor in interest of the buyer. Hanback v. Dutch Baker Boy, Inc., 1939, 70 App.D.C. 398, 107 F.2d 203. Thus, according to the literal language of the statute upon which plaintiff's claim is predicated, she is not e......
  • Saunders v. Goldstein, 2958.
    • United States
    • U.S. District Court — District of Columbia
    • November 6, 1939
    ...Dairies, Inc., and the third-party defendants. Cushing v. Rodman, 65 App.D.C. 258, 82 F.2d 864, 104 A.L.R. 1023; Hanback v. Dutch Baker Boy, Inc., App.D.C., 107 F.2d 203. The motion to dismiss the original complaint must be The third-party complaint clearly states a claim entitling the thir......
1 books & journal articles
  • Privacy as intellectual property?
    • United States
    • Stanford Law Review Vol. 52 No. 5, May 2000
    • May 1, 2000
    ...examples is insurance contracts. For a straightforward application of the privity doctrine, see, e.g., Hanback v. Dutch Baker Boy, Inc., 107 F.2d 203, 203 (D.C. Cir. 1939) (finding no suit in contract under the theory of implied warranty after a child gets food poisoning from a chocolate ec......

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