Brockett v. Harrell Bros., Inc.

• Decision Date: 10 September 1965
• Docket Number: No. 70,70
• Citation: 143 S.E.2d 897,206 Va. 457
• Parties: Gertrude BROCKETT v. HARRELL BROS., INC., and Earl H. Aleck, Individually and trading as Earl's Supermarket
• Court: Virginia Supreme Court

Page 897

143 S.E.2d 897

206 Va. 457

Gertrude BROCKETT v. HARRELL BROS., INC., and Earl H. Aleck, Individually and trading as Earl's Supermarket No. 70.

Supreme Court of Appeals of Virginia.

Sept. 10, 1965.

J. Cameron Mann, Norfolk (Israel Steingold, Steingold, Steingold & Chovitz, Norfolk, on brief), for plaintiff in error.

Spencer Gill William H. Hodges, Norfolk (Rixey & Rixey, Kellam & Kellam, Norfolk, on brief), for defendants in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

EGGLESTON, Chief Justice.

Gertrude Brockett filed a motion for judgment against Harrell Bros., Inc., and Earl H. Aleck, individually and trading as Earl's Supermarket No. 70, to recover damages suffered while eating a portion of a smoked ham which she had purchased from Earl's Supermarket and which had been processed and packed by Harrell Bros., Inc. She alleged that while eating a portion of the ham her tooth struck and was broken by a 'buckshot' embedded in the meat. She claimed that both of the defendants were liable to her for negligence in failing properly to process, inspect and pack the ham and also for the breach of their express and implied warranties of the fitness and suitability of the ham for human consumption.

The defendants filed separate grounds of defense, each denying that it or he was guilty of negligence which was a proximate cause of the plaintiff's injuries and each denying that it or he had made or breached any express or implied warranty. Each defendant alleged that the plaintiff was guilty of contributory negligence.

There was a trial before a jury and at the conclusion of all of the evidence the lower court struck the plaintiff's evidence both as to the express warranty and the implied warranty of each defendant. The case was submitted to the jury on the issue of the negligence of the defendants and the contributory negligence of the plaintiff and resulted in a verdict and judgment for the defendants. We granted the plaintiff a writ of error.

In her assignments of error the plaintiff does not question the action of the lower court in striking her evidence as to the lack of express warranty on the part of either defendant. Nor does she attack the sufficiency of the evidence to sustain the verdict of the jury on the issue of the defendants' negligence and her contributory negligence. She insists that upon the evidence submitted both defendants impliedly warranted to her the wholesomeness of the food product and that it was for the jury to say whether either or both of the defendants were liable to her for the breach of their respective implied warranties.

The evidence is not in dispute. On August 3, 1963 the plaintiff purchased from the defendant, Earl H. Aleck, trading as Earl's Supermarket No. 70, at Chesapeake, a packaged part of a smoked ham which when sold to her was wrapped in cellophane and closed with a piece of red tape. This ham had been purchased by the supermarket from harrell Bros., Inc., a processor of meats. The ham was one of four or five which were delivered by the processor to the supermarket in a cardborad container, each ham being wrapped separately in a cloth bag. After these hams had been received they were cut in half by the supermarket and each portion wrapped separately.

The plaintiff baked the ham on the day it was purchased. In preparing it she noticed some 'black spots' under the skin, but thought they were cloves. Several days later when she was eating a sandwich made of a portion of the ham her tooth was broken when it struck an object embedded in the meat. Upon examination she found the object to be a lead pellet or shot. She returned the portion of the ham not eaten to the supermarket where it was examined by the defendant, Aleck, and the manager of the store. They found two or three pellets embedded in the ham. The supermarket gave the plaintiff another portion of a ham in place of that which she had purchased.

On the issue of negligence of the defendants there was evidence that the hog from which this ham came, along with others, had been properly slaughtered, cleaned, cured, inspected and packed. There was also evidence that the portion sold to the plaintiff by the supermarket had been carefully inspected before delivery to her. However, since such evidence is not material to the issue of implied warranties of the defendants and the breach thereof, with which we are here concerned, it need not be related.

These critical issues are presented to us: (1) Was there an implied warranty by the processor, Harrell Bros., Inc., to the plaintiff that this food product was wholesome, fit for human consumption and free of harmful substance? If so, was there sufficient evidence to go to the jury as to whether there was a breach of such implied warranty? (2) Was there a similar implied warranty by the retailer supermarket to the plaintiff, and if so, was there sufficient evidence to go to the jury as to whether there was a breach of such warranty?

In Swift & Company v. Wells, 201 Va. 213, 110 S.E.2d 203, we held that 'where a manufacturer of food for human consumption sells such food, in sealed containers or packages, to a retailer, who in turn sells it to a consumer, and the consumer upon eating it suffers damage in consequence of impurities in the product, shown to have existed therein before it left the manufacturer's hands, the manufacturer is liable to the consumer on its implied warranty of wholesomeness of the food, and the consumer may recover against the manufacturer for damages suffered, irrespective of a lack of privity of contract between the manufacturer and the consumer. This permits the placing of the loss occasioned upon the manufacturer who is in the best position to prevent the production and sale of unwholesome food.' 201 Va. at 221, 110 S.E.2d at 208, 209. We based that holding upon the principle that such implied warranty to fitness is imposed by operation of law as a matter of public policy for the protection of health and life. 201 Va. at 220, 110 S.E.2d at 208.

In that case the retailer sold and delivered the food product to the consumer in the sealed container in which it had been placed by the manufacturer, while in the present case the retailer removed the food product from the original container and sold and delivered a portion of it to the consumer. The question presented is whether in the present case there was a like implied warranty by the manufacturer to the consumer that the food product was wholesome and fit for human consumption. We hold that there was.

As pointed out in the Wells case, we have followed the common-law doctrine that one who sells foodstuff for human consumption impliedly warrants its fitness and wholesomeness to one in privity of contract with the vendor. 201 Va. at 217, 110 S.E.2d at 206, and authorities there collected. Implicit in the warranty that the food is fit for human consumption is the warranty that it is free of foreign substances. Annotation: 77 A.L.R.2d, p. 79.

In the Wells case, as has been said, we held that lack of privity of contract did not preclude a recovery by the consumer of the manufacturer where the food product was sold by the retailer to the consumer in the sealed package in which it had been placed by the manufacturer. If, as is said in that case, as a matter of public policy, an implied warranty of fitness is imposed by operation of law upon a manufacturer who sells food in a sealed container to a retailer who in turn sells it to a consumer, we perceive no reason why the same warranty of fitness, with the same force and effect, is not imposed on a manufacturer who sells a food...