Pelletier v. Dupont

• Decision Date: 03 March 1925
• Citation: 128 A. 186
• Parties: PELLETIER v. DUPONT.
• Court: Maine Supreme Court

128 A. 186

PELLETIER

v. DUPONT.

Supreme Judicial Court of Maine.

March 3, 1925.

Exceptions from Superior Court, Androscoggin County, at Law.

Action by Theresa Pelletier against Philip Dupont. Judgment of nonsuit, and plaintiff excepts. Exception overruled.

Argued before CORNISH, C. J., and PHILBROOK, MORRILL, WILSON, STURGIS, and BARNES, JJ.

Benjamin L. Berman, of Lewiston, and Jacob H. Berman and Edward J. Berman, both of Portland, for plaintiff.

Frank A. Morey, of Lewiston, for defendant.

WILSON, J. The plaintiff, who lives with her husband in Lewiston, had occasion to use considerable quantities of bread to supply the needs of an immediate family of six or seven and of some score of boarders or mealers. She was accustomed to order the household supplies chiefly of a certain firm dealing in groceries and provisions, including bread.

The defendant is a baker who manufactures or bakes loaf bread for domestic consumption and known to the trade as "Dupont's Edgeworth bread." Each loaf of defendant's bread of this brand was, before it left his bakery, wrapped in waxed paper and sealed. The manner of sealing does not appear; but from the evidence the jury might have been warranted in finding that it was so sealed as to retain the wrapper around the bread until the seals were broken, and that the common pin which it is alleged was found imbedded in a loaf of this bread, purchased by the plaintiff, in some way entered the loaf before it left the defendant's bakery.

On each wrapper appeared the following:

"Purity Nutrition Cleanliness absolutely applies to Edgeworth Bread. It is made from the highest standard of flour, milled from the choicest selection of Hard Wheat, renowned for the superior quality and quantity of gluten it contains. Edgeworth Bread is the cheapest, because most nutritious. It is rich in flavor and retains its moisture for several days. It is made under the most sanitary rulings, hence the most cleanly.

"The above facts are the reasons for the great popularity of this celebrated bread. It is guaranteed after thorough inspection."

On the 4th day of February, 1924, the plaintiff gave an order to the local dealer for several loaves of bread. It does not appear that she expressly ordered bread manufactured by the defendant, but there was delivered to her in the morning of that day by the grocer five loaves of "Edgeworth bread" wrapped in wax paper, which but a short time previous, on the same day, had been left at the store by one of the delivery carts of the defendant.

Later on the same day one of the daughters of the plaintiff removed the sealed wrapper from one of the loaves, laid the loaf upon the wrapper, spread on a shelf or board, and cut from the loaf three or more slices. One of the slices was handed to the plaintiff who began to eat it, and after a few moments exclaimed that there was something in the bread which she had swallowed, which proved to be a common pin.

Whereupon the plaintiff brought this action against the defendant as the manufacturer of the bread upon an alleged warranty that it was wholesome and fit for human consumption as food and was free from any foreign substances dangerous and harmful to the health of those using the bread as food, and seeks to recover for medical attendance and the pain and suffering she endured by reason of the alleged breach.

At the close of the plaintiff's case the presiding justice directed a nonsuit, to which ruling the plaintiff duly and seasonably excepted.

The liability of the manufacturer of food products to the ultimate consumer when purchased of a retail dealer or middleman is one of novel impression in this state, but has been considered in various forms in other jurisdictions.

It may not be out of place in view of the conflicting views as to the grounds of the manufacturer's liability to preface the discussion of the issue raised in this action with a brief statement of the law applying to sales of personal property in general and its modification and application to the sale of food products.

The general rule in the case of a sale of personal property, except as to title, is the familiar one of caveat emptor. Another equally well-settled principle is that a manufacturer, except when manufacturing for a specific use, and then only to the party for whom made, is not liable to a third party or a stranger to the contract of manufacture or sale, for any defects which may later develop in his product, unless known to him and rendering the article dangerous. Downing v. Dearborn, 77 Me. 457, 1 A. 407; White v. Oakes, 88 Me. 367, 34 A. 175, 32 L. R. A. 592; Lewis v. Terry, 111 Cal. 39, 43 P. 398, 31 L. R. A. 220, 52 Am. St. Rep. 146; Berger v. Standard Oil Co., 126 Ky. 155, 103 S. W. 245, 11 L. R. A. (N. S.) 238; Cooley on Torts (3d Ed.) 1486-1489; 24 R. C. L. 521; Newhall v. Ward Baking Co., 240 Mass. 435, 436, 134 N. E. 625; Birmingham Chero-Cola Co. v. Clark, 205 Ala. 678, 680, 89 So. 64, 17 A. L. R. 667.

But these rules have their exceptions. In respect to the sale of materials intended to be used as food, while there is no implied warranty where the transaction is between two dealers, or a manufacturer and a dealer, that the article is fit for consumption as food (Howard v. Emerson, 110 Mass. 320, 14 Am. Rep. 608; Giroux v. Stedman, 145 Mass. 439, 14 N. E. 538, 1 Am. St. Rep. 472; Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 15 L. R. A. [N. S.] 884, 126 Am. St. Rep. 436, 15 Ann. Cas. 1076; Swank v. Battaglia, 84 Or. 159, 164 P. 705, L. R. A. 1917F, 469; 24 R. C. L. 197), whatever may be the liability in case of fraud or deceit or negligence in preparation (Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633, 48 L. R. A. [N. S.] 213, Ann. Cas. 1915C, 140), where, however, the transaction is between a dealer and a consumer, unless the consumer assumes the risk by selecting the article himself, there is an implied warranty that it is wholesome and fit for consumption as food (Uniform Sales Act, c. 191, § 15 [1], P. L. 1923; Farrell v. Manhattan Market Co., supra; Friend v. Child Dining Hall Co., 231 Mass. 65, 120 N. E. 407, 5 A. L. R. 1100; Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 93, 120 N. E. 225, 5 A. L. R. 242; 24 R. C. L. 195; 26 C. J. 783, 784; 11 R. C. L. 1119, 1120), though this court has made an exception in the case of canned or tinned goods (Bigelow v. M. C. R. R., 110 Me. 105, 85 A. 396, 43 L. R. A. [N. S.] 627; Trafton v. Davis, 110 Me. 318, 325, 86 A. 179), an exception not recognized in Massachusetts as appears in the case last cited from that jurisdiction.

The rule that a manufacturer is not liable to any one except his immediate vendee for any defects in his product, even though due to his negligence, also has its exception in case of articles of a dangerous nature or containing known defects (Berger v. Standard Oil Co., 126 Ky. 155, 103 S. W. 245, 11 L. R. A. (N. S.) 238; Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 29 S. Ct. 270, 53 L. Ed. 453; Wellington v. Downer K. Oil Co., 104 Mass. 64; Tompkins v. Quaker Oats Co., 239 Mass. 149, 131 N. E. 456), but this liability is recognized as founded in tort and not on contract, 24 R. C. L. 514, 515; 17 A. L. R. 683.

It is by analogy to this class of cases that this principle has been applied to the sale of drugs and to food products when intended for human consumption by reason of the consequences to life and health which may flow from improperly prepared products or containing deleterious materials, if placed on the market for consumption as medicine or food. The cases recognizing this liability are too numerous for citation. They may be readily referred to in 11 R. C. L. 1122; 26 C. J. 785; 17 A. L. R. 686, 688.

While the liability is generally recognized the principle on which it rests is not agreed upon; some authorities holding there is an implied warranty by a manufacturer running to the consumer, even though he purchases of a third party or dealer; while others hold that the obligation to the consumer who purchases of a dealer, or middleman, rests entirely on negligence or failure to exercise due care in the preparation of such products, knowing them to be intended for human consumption, and there can be no warranty running to the consumer who does not purchase of the manufacturer, since there is no privity of contract between them. Davis v. Van Camp Packing Co., 189 Iowa, 775, 176 N. W. 382, 17 A. L. R. 649; Rainwater v. Coca-Cola Bot. Co., 131 Miss. 315, 95 So. 444; Tomlinson v. Armour & Co., 75 N. J. Law, 748, 70 A. 314, 19 L. R. A. (N. S.) 923; Freeman v. Schultz Bread Co., 100 Misc. Rep. 528, 163 N. Y. S. 396; Chysky v. Drake Bros. Co., 235 N. Y. 468, 139 N. E. 576, 27 A. L. R. 1533; Boyd v. Coco-Cola Bottling Co., 132 Tenn. 23, 177 S. W. 80; Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152,1L. R. A. (N. S.) 1178, 110 Am. St Rep. 157; Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A. L. R. 667; Salmon v. Libby, McNeil & Libby, 219 Ill. 421, 76 N. E. 573; Parks v. C. C. Yost Pie Co., 93 Kan. 334, 144 P. 202, L. R. A. 1915C, 179; Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866; Flaccomio v. Eysink, 129 Md. 367, 100 A. 510; Meshbesher v. Channellene Mfg. Co., 107 Minn. 107, 119 N. W. 428, 131 Am. St. Rep. 441; Ketterer v. Armour & Co., 247 F. 921, 160 C. C. A. Ill, L R. A. 1918D, 798; Drury v. Armour & Co., 140 Ark. 371, 216 S. W. 40; Roberts v. Anheuser Busch Brewing Co., 211 Mass. 449, 98 N. E. 95; Tonsman v. Greenglass, 248 Mass. 275, 142 N. E. 756; Wilson v. Ferguson Co., 214 Mass. 265, 101 N. E. 381.

It is at least a significant fact that in a very great majority of the reported cases the action has been based on negligence and the liability held to be founded on a duty owing to the public, and in only a few instances has any attempt been made to base the right of recovery on any contractual relations alleged to exist between the manufacturer and the...