O'Brien v. Comstock Foods, Inc.

• Decision Date: 07 July 1965
• Docket Number: No. 327,327
• Citation: 212 A.2d 69,125 Vt. 158
• Court: Vermont Supreme Court
• Parties: Ursula O'BRIEN and Frederick W. O'Brien v. COMSTOCK FOODS, INC.

Page 69

212 A.2d 69

125 Vt. 158

Ursula O'BRIEN and Frederick W. O'Brien v. COMSTOCK FOODS, INC.

No. 327.

Supreme Court of Vermont.

July 7, 1965.

Robert M. Rosenberg, Jr., and Lisman & Lisman, Burlington, for plaintiff.

Black, Wilson & Hoff, Burlington, for defendant.

Before HOLDEN, C. J., SHANGRAW, BARNEY and SMITH, JJ., and O'BRIEN, Superior Judge.

HOLDEN, Chief Justice.

The plaintiff Ursula O'Brien presents two complaints for personal injuries which she claims were caused by eating a piece of glass, contained in a can of string beans packed by the defendant. Her first complaint is founded on an alleged breach of warranty; the second charges negligence in the packing of the product. Her husband seeks redress for similar injuries and he, too, resorts to actions in contract and tort to recover his damage.

The cases were previously here for determination of jurisdictional questions. O'Brien v. Comstock Foods, Inc., 123 Vt. 461, 194 A.2d 568. Upon remand the plaintiffs were allowed to amend to supply additional jurisdictional facts. The amended complaints were challenged by the defense of want of privity of contract. Sustaining the defendant's contention on this point, the Chittenden County Court ordered all of the causes dismissed and certified the question for review by this Court.

The pleadings disclose that the defendant prepared, packed and hermetically sealed a can of cut stringless green beans. The product was sold to the InternationalGrocers Alliance for resale and distribution to grocers in Vermont and elsewhere within its established marketing area. The can was purchased by the husband from a grocer in Burlington, Vermont.

These facts compose the question certified. They call upon us to decide, for the first time, whether privity of contract is essential to the maintenance of an action against a food processor for injuries caused by a defect in the product as originally packaged.

The need for privity in an action for negligent bottling, was left unattended in Joly v. Coca Cola Co., 115 Vt. 174, 55 A.2d 181. In any event, the fallacy of the privity requirement in actions for negligent manufacture was exposed and substantially laid to rest in Judge Cardozo's landmark decision in MacPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, 701.

An enterprise engaged in the process and packing of foods, like the manufacturer of automobiles, extends an invitation to purchase and use its product to indeterminate members of the consuming public. 'It was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and reasonable tests.' And that responsibility was not lessened nor discharged because the injured person happened to be outside the reach of the contract that marketed the product. MacPherson v. Buick Motor Co., supra, 111 N.E. 1050, L.R.A.1916F, 700.

The persuasive effect of the logic of the MacPherson decision has been accepted by authorities too abundant to catalog and to the point where, but for two doubtful exceptions, no American jurisdiction refuses to apply it. Prosser, The Assault Upon The Citadel (Strict Liability To The Consumer) 69 Yale L.J. 1099, 1100. We join in this acceptance and hold it was error to dismiss the complaints founded on negligence for want of privity.

Is the defendant protected from its warranties because it did not deal with the injured consumers by direct sale? The warranty upon which the plaintiffs rely was not made by negotiation and bargain. Such was the situation in Piper v. Oakland Motor Co., 94 Vt. 211, 212, 109 A. 911, which failed for want of authority of the agent to make the warranty relied upon.

The warranties upon which the plaintiffs depend are imposed by law from the nature of the transaction and the circumstances of the parties, apart from considerations entirely contractual. Jaeger, Product Liability: The Constructive Warranty, 39 Notre Dame Law 501, 506. And Williston points out that while a warranty may be based on contract, it is not necessarily so. 5 Williston, Contracts § 1505 (Rev.Ed.).

The privity requirement, in actions sounding in tort, apparently originated in Winterbottum v. Wright, 10 M. & W. 109, 114, 152 Eng.Rep. 402, 403 (1842). Then, Lord Abinger predicted 'absurd and outrageous consequences' if privity was not demanded. But the requirement was eroded, if not abandoned, in Heaven v. Pender, 11 Q.B. 503 (1883). And the erosive process has been constant, and sometimes severe. Ultramares Corp. v. Touche, 255 N.Y. 170, 180, 174 N.E. 441, 445; Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1, 36; 2 Harper & James The Law of Torts § 28.16; Jaeger, Privity of Warranty: Has The Tocsin Sounded? 1 Duquesne L.R. 1; Prosser, The Assault Upon The Citadel, supra; for extensive collection of cases, see annotation, 75 A.L.R.2d 43.

Since ancident times, the purveyors of food and drink have been held to special responsibilities. As early as the thirteenth century dealers in food products and beverages were subjected to criminal penalties for trafficking in 'corrupt' commodities. Civilliability in the common law followed the same pattern. According to Blackstone, 'in contracts for provisions it is always implied that they are wholesome. * * *' 1 Street, Foundations of Legal Liability p. 387; Williston, Sales § 241 (Rev.Ed.); see also, Bragg v. Morrill, 49 Vt. 45, 47.

The invitation of the manufacturer or originator of the product, referred to some fifty years ago in the MacPherson case, supra, has become more extensive and persuasive by way of modern packaging and advertising techniques. 'Today when so much of our food is bought in packages it is not just or sensible to confine the warranty's protection to the individual buyer. At least as to food and household goods, the presumption should be that the purchase was made for all the members of the household.' Greenberg v. Lorenz, 9 N.U.2d 195, 213 N.Y.S.2d 39, 42, 173 N.E.2d 773, 776 (Desmond, C.J. 1961). In that instance the right of a child to recover for personal injuries, inflicted by a defective can of salmon, was not defeated because she did not...