Atwell v. Pepsi-Cola Bottling Co. of Washington, D. C.

• Decision Date: 23 June 1959
• Docket Number: No. 2288.,2288.
• Citation: 152 A.2d 196
• Parties: Monica J. ATWELL, Appellant, v. PEPSI-COLA BOTTLING COMPANY OF WASHINGTON, D. C., a body corporate, and The Great Atlantic and Pacific Tea Company, a body corporate, Appellees.
• Court: D.C. Court of Appeals

152 A.2d 196

Monica J. ATWELL, Appellant, v. PEPSI-COLA BOTTLING COMPANY OF WASHINGTON, D. C., a body corporate, and The Great Atlantic and Pacific Tea Company, a body corporate, Appellees.

No. 2288.

Municipal Court of Appeals for the District of Columbia.

Argued March 23, 1959.

Decided June 23, 1959.

Earl H. Davis, Washington, D. with whom Dorsey K. Offutt, Washington, D. C., was on the brief, for appellant.

Frank J. Martell, Washington, D. C., with whom Richard W. Galiher and William E. Stewart, Jr., Washington, D. C., were on the brief, for appellee Pepsi-Cola Bottling Company of Washington, D. C., Inc.

Francis L. Casey, Jr., Washington, D. C., for appellee The Great Atlantic and Pacific Tea Company, Inc.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

QUINN, Associate Judge.

Appellant entered appellee Great Atlantic and Pacific Tea Company's self-service store in Silver Spring, Maryland, to purchase groceries. She selected a six-bottle carton of Pepsi-Colas from a display shelf and placed it on the bottom part of her shopping cart. All other purchases were put in the top part of the cart. After completing her marketing, she pushed her cart to the checkout counter and began unloading her groceries on the counter. According to her testimony, she picked up the carton of Pepsi-Colas from the bottom part of the cart and placed it on the counter. She stated that the bottles had not come in contact with anything from the time she removed them from the display shelf until she placed them on the check-out counter. While the carton was on the counter, one of the bottles exploded and appellant was cut on the palm of her left hand and left ankle by pieces of flying glass.

Appellant brought this suit against appellee Pepsi-Cola Bottling Company as the manufacturer and appellee A & P as the retailer of the product which caused her injury. She charged breach of warranty and negligence on the part of both defendants. Trial was to a jury. While appellant has not furnished this court with a record of her counsel's opening statement, it appears that at the conclusion of that opening statement, a verdict was directed in favor of Pepsi-Cola only on the count alleging breach of warranty. Further, according to the docket entries, a verdict was apparently directed in favor of both defendants on the remaining counts at the conclusion of appellant's evidence, although again appellant has failed to supply us with a transcript of the hearing and ruling on such motions. This appeal mainly questions the correctness of these rulings.

We will consider first the count alleging breach of warranty. As to the ruling in Pepsi-Cola's favor on this point at the conclusion of the opening statement of appellant's counsel, it is obvious that we cannot review it since we do not have that statement before us. However, from what meager information we have, it appears that the holding was correct, for under Maryland law, which controls this case, there are no warranties between manufacturer and ultimate purchaser because of a lack of privity.¹

A & P contends that it is not liable on the theory of breach of an implied warranty of either fitness or merchantability because appellant had not as yet paid for the Pepsi-Colas when the accident occurred, and consequently title has not passed, and there was no sale, citing Lasky v. Economy Grocery Stores, 1946, 319 Mass 224, 65 N.E.2d 305, 163 A.L.R. 235. As far as we can determine, Maryland has not ruled on this question. However, even assuming without deciding that there was a sale, we do not believe appellant's evidence disclosed any breach of warranty. In appellant's complaint and also at pretrial, it appears that she was contending that the breach of warranty consisted of a defect or an unsafe condition in the bottle. The sum total of her evidence on the issue of liability was her own testimony which we have detailed above, and we do not think that she made any showing in support of her allegations² Even assuming there was, it is clear that under Maryland law implied warranties extend only to the contents and not to the container.³ Therefore, the court was correct in directing a verdict for A & P on the breach of warranty charge.

We also believe that appellant's evidence of negligence was insufficient to present a jury question with respect to both defendants. As is usual in these cases, appellant could not prove specific acts of negligence, and accordingly she relied on res ipsa loquitur. In Canada Dry Ginger Ale...