Birmingham Chero-Cola Bottling Co. v. Clark

• Decision Date: 07 April 1921
• Docket Number: 6 Div. 294
• Citation: 89 So. 64,205 Ala. 678
• Parties: BIRMINGHAM CHERO-COLA BOTTLING CO. v. CLARK.
• Court: Alabama Supreme Court

89 So. 64

205 Ala. 678

BIRMINGHAM CHERO-COLA BOTTLING CO. v. CLARK.

6 Div. 294

Supreme Court of Alabama

April 7, 1921

Rehearing Denied May 12, 1921

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by W.G. Clark against the Birmingham Chero-Cola Bottling Company for damages for putting upon the market a drink in a bottle containing flies. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals, under section 6, Acts 1911, p. 449. Reversed and remanded.

T.A Saulsberry and Percy, Benners & Burr, all of Birmingham, for appellant.

Burgin & Jenkins, of Birmingham, for appellee.

ANDERSON C.J.

The question involved upon this appeal is whether or not this defendant, who prepared and put upon the market a bottle of beverage, purchased by the plaintiff from an intermediate dealer, and who was made sick from drinking same, because it contained a fly, can recover in an action ex contractu as for the breach of an implied warranty, or is confined to an action of tort for negligence.

The warranty of the seller of personal property does not, as a rule, impose any liability upon him as to third persons who are in no way a party to the contract. 24 R.C.L. p. 158, § 431. The common-law doctrine of covenants running with the land applies only to real estate, and it is well settled as a common-law rule that the benefit of a warranty does not run with the chattel on its resale so as to give the subpurchaser any right of action thereon as against the original seller. 24 R.C.L. p. 159; Salle v. Light's Ex'rs, 4 Ala. 700, 39 Am.Dec. 317.

It is also stated as a rule of law that a manufacturer or seller is not liable to third persons who have no contractual relations with him for negligence in the construction, manufacture, or sale of articles manufactured or sold. To this rule the courts have very generally recognized exceptions as to articles of a dangerous or obnoxious character, unwholesome foods, etc. Lula Jones v. Gulf States Steel Co., 88 So. 21.

As it ordinarily is stated, an act of negligence of a manufacturer or seller, which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third persons who suffer from the negligence regardless of the privity of contract. The basis for this rule, however, is found in tort, and not in contract.

"It has been observed that the real ground of liability of the seller to an ultimate consumer is, more properly speaking, a duty one owes to the public not to put out articles to be sold upon the markets for use injurious in their nature, of which the general public have no means of inspection to protect themselves." 24 R.C.L. § 806, p 514; Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S.W. 155, L.R.A.1916B, 877, Ann.Cas.1917B, 572; Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S.W. 1047, 37 L.R.A. (N.S.) 560, Ann.Cas.1913B, 689; Valeri v. Pullman Co. (D.C.) 218 F. 519.

The case of Dothan Chero-Cola Bottling Co. v. Weeks, 16 Ala.App. 639, 80 So. 734, by the Alabama Court of Appeals, and which seems to have been followed by the trial court, is not in line with the best-considered cases. Indeed, the only case which we have found that supports the holding in said case is the Mississippi case of Jackson Coca-Cola Co. v. Chapman, 106 Miss. 864, 64 So. 791. This case seems to be rested exclusively upon the case of Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A. (N.S.) 1178, 110 Am.St.Rep. 157. We do not construe this Watson Case, supra, as holding that the plaintiff could recover upon an implied warranty, as it is there said:

"The duty not negligently to injure is due by the manufacturer, in a case of the particular character of the one under consideration, not merely to the dealer to whom he sells his product, but to the general public for whom his wares are intended"--citing Blood Bahn Co. v. Cooper, 83 Ga. 457, 10 S.E. 118, 5 L.R.A. 612, 20 Am.St.Rep. 324.

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