Torpey v. Red Owl Stores

• Decision Date: 30 December 1955
• Docket Number: No. 15361.,15361.
• Citation: 228 F.2d 117
• Parties: Emily W. TORPEY, Appellant, v. RED OWL STORES, Inc., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

228 F.2d 117 (1955)

Emily W. TORPEY, Appellant, v. RED OWL STORES, Inc., Appellee.

No. 15361.

United States Court of Appeals Eighth Circuit.

December 30, 1955.

Richard J. Orff and Martin J. Ward, Minneapolis, Minn., for appellant.

Charles A. Bassford, Minneapolis, Minn. (Richards, Janes, Hoke, Montgomery & Cobb, Minneapolis, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.

GARDNER, Chief Judge.

This was an action brought by appellant to recover damages for personal injuries. We shall refer to the parties as they appeared in the trial court. The defendant is a self-service retailer of groceries maintaining a grocery store in Minneapolis, Minnesota. Plaintiff, a resident and citizen of the state of New York, was at the time of receiving her injuries a guest at the home of her sister Miss Mary Ward who resides in Minneapolis, Minnesota. In her complaint she alleged that on the 6th day of December, 1953, while attempting to replace the metal cap or cover on a glass jar of prepared foodstuff previously purchased from defendant in the regular course of business said glass jar crumbled and shattered in her hands inflicting cuts and lacerations in her right hand and that the injuries so inflicted were the result of defects in the glass jar and cap and the negligence of the defendant. She then alleged that in offering, selling and delivering said merchandise the defendant impliedly warranted it to be reasonably fit for the purposes for which it was sold and to be of merchantable quality but that said glass jar was not as so warranted. She then alleged that as a result of the injuries so suffered by her she was seriously and permanently injured. She also alleged facts going to the extent of her injuries and the damages resulting therefrom. The defendant by its answer admitted the jurisdictional allegations of the complaint, admitted that it was in the business of selling foodstuffs in sealed glass jars to the public and denied that it made any sale of foodstuff in glass jars to the plaintiff but that if it sold the glass jar of foodstuff mentioned in plaintiff's complaint to anyone denied that it warranted it to be free from unknown defects which could not be discovered upon reasonable examination. Other allegations in the pleadings are of no pertinence to the issues now involved.

The action was tried to the court and a jury and there is little or no dispute in the evidence. Plaintiff was helping her sister clear the table after a dinner at which part of a jar of applesauce had been eaten. She asked her sister what she should do with the unused portion of the applesauce and at her suggestion returned it to the jar from which it had been taken. She then attempted to reseal and recap the jar when it collapsed under her hands inflicting lacerations to her hand and wrist.

The circumstances under which this sealed glass jar of applesauce was purchased were as follows: Plaintiff's sister went to defendant's retail self-service store and in the usual and customary manner selected this jar of Mott's applesauce from the shelf in the store without advice or recommendation from anyone in the store, paid for it and took it to her home. There was evidence that the glass jar was defective but that the defect was not discernible. There was also evidence as to the nature and extent of plaintiff's injuries.

At the close of all the evidence defendant moved for a directed verdict on the following grounds: "* * * that there is no privity between her and the defendant; there is no warranty between her and the defendant; no warranty between her and the defendant on the part of the defendant which was breached. On the further ground that there is no evidence of any negligence on the part of the defendant which caused or contributed to cause the accident and injuries complained of by plaintiff here." The court deferred passing on the motion and submitted the case to the jury together with certain specific interrogatories. Further reference will be made to the instructions and interrogatories submitted during the course of this opinion. The plaintiff made no objections to the instructions as given and saved no exceptions thereto.

The jury returned a verdict in favor of the plaintiff for $7,100.00. Thereafter the defendant moved for judgment notwithstanding the verdict on the grounds (1) that the evidence does not establish facts sufficient to sustain a verdict for the plaintiff; (2) that plaintiff has no cause of action against the defendant for breach of implied warranty for the reason that she was not the buyer of the jar described in the complaint and there was no privity of contract between her and the defendant; (3) that the evidence is insufficient to sustain or warrant a finding that said jar was not reasonably fit for its intended purpose; (4) that the evidence is insufficient to sustain or warrant finding that the fracture of said jar originated at a point of, or was due to, any defect or weakness therein; (5) that the evidence is insufficient to sustain or warrant a finding that any defect or weakness in said jar, which rendered it unfit for its intended purpose, was the proximate cause of the injuries of which plaintiff complains; and (6) that the court erred in charging the jury that plaintiff is entitled to recover damages for defendant's breach of implied warranty even though her negligence proximately contributed to cause such damages.

This motion was sustained by the court and judgment was entered dismissing plaintiff's action on the merits. In passing upon the motion for judgment notwithstanding the verdict the court prepared a carefully considered opinion setting forth its views as to the applicable law which opinion is embodied in the printed record.

Plaintiff seeks reversal on substantially the following grounds: (1) Reliance was proven although not essential; (2) Warranties extend to the food container; and (3) Privity of contract between the parties is not essential to recovery.

The issues must be determined under the laws of Minnesota. Minnesota has adopted the so-called Uniform Sales Act, M.S.A. § 512.01 et seq. The provisions of that act pertinent to the question of implied warranties are as follows:

"512.15 Implied warranties of quality and fitness. Subject to the provisions of this chapter and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller\'s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.

"(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality. * * *

"(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose."

In answer to a special interrogatory submitted by the court the jury found that the purchaser, Mary Ward, relied on the skill and judgment of defendant that the glass jar of applesauce was reasonably fit for the purpose for which it was intended. The court in passing on the motion for judgment notwithstanding the verdict found that this special finding was without support in the evidence. There was no dispute in the evidence touching this question. Plaintiff's sister, Miss Ward, was the purchaser and s...