Borucki v. MacKenzie Bros. Co., Inc.

Decision Date07 December 1938
Citation3 A.2d 224,125 Conn. 92
CourtConnecticut Supreme Court
PartiesBORUCKI v. MacKENZIE BROS. CO., Inc. (two cases).[*]

Appeal from Superior Court, Fairfield County; Earnest C. Simpson Judge.

Actions by Gadwiga Borucki and by Theodore Borucki against the MacKenzie Brothers Company, Incorporated, to recover damages for personal injuries alleged to have been caused by a breach of warranty and by negligence of the defendant. The actions were tried to jury. Verdict and judgment for defendant in each case, and plaintiffs appeal.

No error.

David R. Lessler, of Bridgeport, for appellants.

Lorin W. Willis, of Bridgeport, for appellee.


HINMAN, Judge.

The plaintiff Gadwiga is the wife of Maryan Borucki, and Theodore is their minor son living with them and other children in Stratford. The plaintiffs offered evidence that on February 8, 1936 Gadwiga gave her husband money and requested him to go to the store of the defendant, a large retail dealer in Bridgeport and buy some minced ham and liverwurst. The husband asked a clerk for a piece of fresh liverwurst and the latter took from a show case a large piece, cut off a portion weighing about two and one-half pounds and delivered it to the husband. The liverwurst was manufactured by another concern from whom the defendant purchased it. Gadwiga ate a slice of it the same evening, afterward felt ill, but the next morning ate another small piece and shortly thereafter removed a small piece of glass from her tongue, which was slightly cut; a physician was called and removed a small piece of glass from her upper jaw. Theodore ate some of the liverwurst and afterward felt ill, while other members of the family who did not eat it were not affected. Both plaintiffs claimed to have suffered paid and distress and went to a hospital for observation. The defendant offered evidence and claimed to have proved that it was in no way negligent in the manner in which it kept and handled the meat and that no foreign substance entered it while it was in the defendant's possession; that after it was taken to the plaintiff's home it was unwrapped and left open for some time before being eaten, and that an analysis of the uneaten portion disclosed no particles of glass therein.

The complaints charged, in the same count, both breach of warranty of fitness for consumption and freedom from foreign substances, and negligence in failing to discover the presence of foreign substances in the meat, but the trial court, holding that there was no evidence of negligence by the defendant, removed that issue from consideration by the jury and this is not assigned as error. As to the other ground of action, the court charged that, as the meat was bought for Mrs. Borucki by her husband, as her agent, and was sold by the defendant for human consumption, there was an implied warranty, so far as she is concerned, that it was fit for that purpose, for a breach of which the defendant would be liable. The court charged, however, that this implied warranty is incident to a contract between the parties and not applicable to a third party, that there was no privity of contract between Theodore and the defendant, which would be necessary as a basis for an action on implied warranty, and, in consequence, a verdict for the defendant was directed in the action brought by him. This latter portion of the charge is attacked on behalf of Theodore, it being asserted that the implied warranty here involved ‘ extends or otherwise should be held to extend to each member of the buyer's immediate family when the seller knows, expressly or by implication, that the food will be consumed by the members of the family.’

When the buyer expressly or by implication makes known to the seller that food which he is purchasing is to be put immediately to domestic uses and it appears that the buyer relies upon the seller to select the food, both under the common law and the Sales Act, General Statutes, § 4635, ‘ there is, as between dealer and the buyer-consumer, an implied warranty of wholesomeness and fitness to be eaten, including freedom from foreign substances which may be injurious to the consumer.’ Burkhardt v. Armour & Co., 115 Conn. 249, 259, 161 A. 385, 389, 90 A.L.R. 1260, and cases cited. A right of recovery in tort may be available to one injured through the seller's negligence even though he is not in privity of contract with the seller. Heinemann v. Barfield, 136 Ark. 456, 466, 207 S.W. 58; Craft v. Parker, Webb & Co., 96 Mich. 245, 248, 55 N.W. 812,21 L.R.A. 139; Bourcheix v. Willow Brook Dairy, Inc., 268 N.Y. 1, 5, 196 N.E. 617, 98 A.L.R. 1492; 26 C.J. 783. However, a generally recognized obstacle to the extension of benefit of implied warranty beyond the purchaser is that the remedy is based on contract and therefore limited to parties and privies thereto.

The situation is well stated in Gearing v. Berkson, 223 Mass. 257, 111 N.E. 785, L.R.A.1916D, 1006. In that case a wife, acting as her husband's agent, bought of the defendants meat which made both husband and wife sick. Recovery by the husband on implied warranty was affirmed, but judgment for the wife was reversed, the Supreme Judicial Court saying (page 260, 111 N.E. page 786): ‘ The difficulty with [her] case on this ground is that there was no contractual relation, and hence no warranty, between Mrs. Gearing and the defendants. The only sale was that made to her husband through her as his agent; and a cause of action in contract accrued to him thereon, as above set forth. The implied warranty, or to speak more accurately the implied condition of the contract, to supply an article fit for the purpose required, is in the nature of a contract of personal indemnity with the original purchaser. It does not ‘ run with the goods.’ Williston on Sales, § 244 [Vol. 1, 2d Ed., p. 489].' ‘ There cannot be a warranty where there is no privity of contract.’ Roberts v. Anheuser Busch Brewing Ass'n, 211 Mass. 449, 451, 98 N.E. 95, 96; Bourcheix v. Willow Brook Dairy, Inc., supra; Nelson v. Armour Packing Co., 76 Ark. 352, 355, 90 S.W. 288,6 Ann.Cas. 237; Kress & Co. v. Lindsey, 5 Cir., 262 F. 331, 334, 13 A.L.R. 1170, 1173. In Welshausen v. Parker Co., 83 Conn. 231, 76 A. 271, it was said as to a claimed warranty in the sale of a gun (page 233, 76 A. page 271): ‘ To sustain a finding that there was a breach of warranty express or implied, there must have been evidence of a contract between the parties, for without a contract there could be no warranty.’ The evidence showed that the gun was sold by the defendant to a retailer, by it to one Koenig and by him to the plaintiff. ‘ The warranty, if one was given, was to the [retailer] and not to the plaintiff. And he, as subvendee, has no cause of action upon the warranty.’

Practically all of the numerous cases in which the doctrine of implied warranty in the sale of foods has been relied upon and applied as against a retail dealer were brought by the party who purchased the food, either personally or through an agent. Such was the case of Burkhardt v. Armour & Co., supra, in which the plaintiff recovered from the retailer (defendant Tea Company) for breach of implied warranty and from the named defendant for negligence. The facts stated in the opinion import and the record (Supreme Court Records and Briefs, Vol. A-18, p. 270) discloses that the trial court concluded that the plaintiff purchased the food through her daughter as her agent. Recovery by one other than the purchaser has generally been denied. Cases dealing with the general subject include the following: Gearing v. Berkson, supra; Brussels v. Grand Union Co., 187 A. 582, 14 N.J.Misc. 751; Wadleigh v. Howson, 88 N.H. 365, 189 A. 865; Bourcheix v. Willow Brook Dairy, Inc., supra; Ryan v. Progressive Grocery Stores, Inc., 255 N.Y. 388, 175 N.E. 105, 74 A.L.R. 339; Wiedeman v. Keller, 171 Ill. 93, 49 N.E. 210; Sloan v. F. W. Woolworth Co., 193 Ill.App. 620; Young v. Great Atlantic & Pacific Tea Co., D.C.Pa., 15 F.Supp. 1018; Frost v. Aylesbury Dairy Co., Ltd., L.R. [1905] 1 K.B. 608; Jackson v. Watson & Sons, L.R. [1909] 2 K.B. 193. For other cases see notes, 13 A.L.R. 1176; 74 A.L.R. 343. See, also, Melick, Sale of Food and Drink, p. 82 et seq. Some cases, contrary to Welshausen v. Parker Co., supra, and Nelson v. Armour Packing Co., supra, have held a manufacturer liable, for breach of implied warranty, to the purchaser through a retailer; e. g., Catani v. Swift & Co., 251 Pa. 52, 56, 95 A. 931, L.R.A.1917B, 1272; Cudahy Packing Co. v. Baskin, 170 Miss. 834, 838, 155 So. 217; Davis v. Van Camp Packing Co., 189 Iowa 775, 796, 176 N.W. 382, 17 A.L.R. 649.

In most of the cases in which judgment in favor of a stranger to the contract has been sustained it appears upon analysis that recovery has been based upon negligence or other tort instead of upon breach of warranty. Body v. Coca Cola Bottling Works, 132 Tenn. 23, 29, 177 S.W. 80; Freeman v. Schults Bread Co., 100 Misc. 528, 163 N.Y.S. 396; Parks v. C. C. Yost Pie Co., 93 Kan 334, 337, 144 P. 202, L.R.A.1915C, 179; Eisenbeiss v. Payne, 42 Ariz. 262, 270, 25 P.2d 162; Ritchie v. Sheffield Farms Co., Inc., 129 Misc. 765, 222 N.Y.S. 724, 726. Intimations as to extension of denefit of the warranty to parties other than the purchaser, as in the Eisenbeiss and Ritchie Cases, supra, and the summary holding in Davis v. Van Camp Packing Co., supra, page 796, 176 N.W. page 390, that ‘ the question as to privity is not controlling’ as to recovery upon warranty by a daughter of the actual purchaser, appear to assume, without obviating the limitations inherent in rights arising from contract relations, that the right of recovery is the same as if the...

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