Blanton v. Cudahy Packing Co.

• Decision Date: 03 October 1944
• Citation: 154 Fla. 872,19 So.2d 313
• Parties: BLANTON v. CUDAHY PACKING CO.
• Court: Florida Supreme Court

19 So.2d 313

154 Fla. 872

BLANTON v. CUDAHY PACKING CO.

Florida Supreme Court

October 3, 1944

Rehearing Denied Oct. 19, 1944.

Appeal from Circuit Court, Orange County; Frank A. Smith judge.

Clark W Jennings, of Orlando, for appellant.

Stockton Ulmer & Murchison and William A. Carter, all of Jacksonville, for appellee.

CHAPMAN, Justice.

This appeal is from a final judgment on demurrer in behalf of defendant below (appellee here) entered in the Circuit Court of Orange County, Florida. It was the view and conclusion of the trial court that the declaration failed to state a cause of action and plaintiff appealed. Pertinent and material portions of the challenged declaration are, viz.:

'Plaintiff Onieda Langley Blanton, by Clark W. Jennings, her attorney, sues The Cudahy Packing Company, a corporation; and, for her cause of action, states the following:

'On or about May 25, 1943, and for some time prior thereto, defendant was engaged in the business of manufacturing, preparing, and canning a certain meat product known as 'Tang', and of distributing and selling said product to retail merchants for resale to the general public.

'On or about May 25, 1943, or shortly prior thereto, defendant sold and delivered a certain can of said Tang to Sapp's Grocery, a retail grocery store in Orlando, Florida.

'At about 4:00 o'clock in the afternoon of May 25, 1943, plaintiff's mother purchased said can of Tang from the said Sapp's Grocery, to be used that evening as a part of the meal at the home of plaintiff's parents, with whom she was then living as a member of the family and to whom she was paying for her board on the date referred to. Within a few minutes after such purchase, plaintiff's mother placed said can, unopened, against the ice compartment in the electric refrigerator in their home, where it remained until about 6:00 o'clock in the evening of said day, when she opened said can, emptied its contents onto a plate, and sliced said contents into a total of twelve slices. A few minutes later, plaintiff ate two of said slices thereof.

'At the time of the purchase by plaintiff's mother of the can of Tang as aforesaid, defendant had impliedly warranted that said can of Tang was a food fit for human consumption; and had also had printed on the outside of said can of Tang the statement, 'Tang is a wholesome, nourishing meat product;' and, until after plaintiff ate the two slices thereof, both she and her mother believed that it was both wholesome and fit for human consumption, and had no notice that it was otherwise. However, at the time it was opened, said can of Tang contained foreign or dangerous matter deleterious or poisonous within itself, or which generated, created, or produced deleterious or poisonous matter, the said can of Tang being, on account thereof, dangerous for human consumption.

'As a direct and proximate result of having eaten a portion of the contents of said can of Tang as hereinabove set out, plaintiff became violently ill, was nauseated, vomited until she had no strength left to do so, had a high fever and diarrhea, lost fourteen pounds in weight, and sustained great injury to her mouth, throat, stomach, and digestive system, as a result whereof she underwent great pain and suffering for a period of several months. In addition to the aforesaid injuries, plaintiff's entire nervous system was shattered and her general health so impaired that she was for a long period of time unable to gain back her weight and strength; and she was weak, jittery, and nervous, and suffered from constipation.' The grounds of the demurrer as directed to the declaration and sustained by the lower court are substantially, viz.: (1) The declaration fails to state a cause of action; (2) the warranty expressed or implied, if any, to the effect that the can of Tang as manufactured by the defendant was wholesome and fit for human consumption did not extend to the consumer thereof but was limited solely, as a matter of law, to the retailer, namely, Sapp's Grocery; (3) the declaration fails to allege facts sufficient to establish a warranty on the part of this manufacturing defendant; (4) the warranty as to wholesomeness and fitness for human consumption exists only as a matter of law between the seller and the purchaser; (5) the declaration fails to allege a consideration for the expressed or implied warranty, if any; (6) negligence in the manufacturing, packing, preparation or canning of the can of Tang is not alleged and for this reason a legal liability has not been shown or established by the declaration.

One of the essential questions flowing from this legal controversy, and sustained by the record, posed for adjudication by this Court is, viz.: Is a manufacturer or canner of food products sold by it in sealed packages or cans to a retailer for the purpose of resale to the consuming public liable in damages for injuries sustained by a consumer thereof because of deleterious, unhealthy, or poisonous substances appearing in the sealed package or can, bottomed on the theory of an implied warranty in effect that the manufactured or canned food products are wholesome and fit for human consumption?

The case of Berger v. E. Berger & Co., 76 Fla. 503, 80 So. 296, involved an action for the breach of an implied warranty arising out of the sale of some lumber for the specific purpose of filling an order from a third person. The owner and seller represented that the order of the third person could be filled from the pile in stock of the owner and seller. Plaintiff did not inspect the stock but relied upon the statement or representation of the defendant to the effect that the lumber would meet the dimensions and specifications of the order of the third party. Plaintiff relied upon these statements and representations and was misled to his financial injury.

We held that where a person contracts to supply an article in which he deals for a particular purpose, knowing the purpose for which he supplies it, and the purchaser has no opportunity to inspect the article but relies upon the judgment of the seller as to its suitableness or fitness for the purpose desired, there is an implied...