Canada Dry Bottling Co. of Fla. v. Shaw

• Decision Date: 02 March 1960
• Docket Number: No. 1343,1343
• Citation: 118 So.2d 840
• Parties: CANADA DRY BOTTLING COMPANY OF FLORIDA, Inc., a Florida corporation, and Food Fair Stores, Inc., a Florida corporation, Appellants, v. Alice SHAW, a single woman, Appellee.
• Court: Florida District Court of Appeals

Page 840

118 So.2d 840

CANADA DRY BOTTLING COMPANY OF FLORIDA, Inc., a Florida corporation, and Food Fair Stores, Inc., a Florida corporation, Appellants, v. Alice SHAW, a single woman, Appellee.

No. 1343.

District Court of Appeal of Florida, Second District.

March 2, 1960.

Rehearing Denied April 4, 1960.

Stephen C. McAliley, of Wicker & Smith, Miami, for appellants.

A. H. Frier, Jr., of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellee.

SHANNON, Judge.

This is an appeal by the defendants below from a jury verdict against them for injuries sustained by the plaintiff when a bottle she was attempting to open broke in her hand. The usual post-verdict motions were denied.

Plaintiff had purchased several bottles of ginger ale and soda, including the bottle in question, from Food Fair Stores, Inc. She took them home, and shortly thereafter, while attempting to open a bottle of Canada Dry Club Soda, the bottle broke and injured her hand. The soda was bottled by the Canada Dry Bottling Company of Florida. The plaintiff filed her complaint charging negligence of the defendants, the applicability of res ipsa loquitur doctrine, and also alleging that the defendants had breached their warranty to the public, including the plaintiff. Prior to closing her case the plaintiff announced her abandonment of all claims of negligence, including the res ipsa loquitur doctrine, and relied solely on the theory of implied warranty.

Each side had an expert who testified concerning the bottle. From their testimony, it appears that the bottle was a 'multitrip' bottle which had been damaged internally in the neck under the cap. It further appears that such damage was present at the time the bottle was last filled and capped. The testimony also shows that the plaintiff did not damage the bottle and that there was no improper attempt to open it. As plaintiff was attempting to open the bottle on a wall opener it broke in her hand, causing injuries.

The questions propounded to us are two in number and raise the question of whether or not the plaintiff made a prima facie case against the Food Fair Stores, Inc., of a breach of implied warranty of fitness, and whether or not the plaintiff made a prima facie case against the Canada Dry Bottling Company of Florida, Inc. on a similar warranty.

As we see it, the case is not one of first impression in this state, but rather a question of whether or not the facts in the case fit themselves into the pattern of implied warranty of fitness for the use for which the bottle and its contents were sold. The doctrine of implied warranty of fitness is not new in Florida, and the problem is whether these particular facts can be reconciled with the doctrine.

While discussing generally the warranty in connection with food cases, Prosser in his treatise on Torts, Second Edition, pages 508 and 509, states:

'* * * On one theory or another, strict liability is now recognized in food cases in California, Florida, Illinois, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Missouri, North Carolina, Ohio, Oklahoma, Pennsylvania, Texas, and Washington, and possibly in Alabama, Arizona, and Kentucky.

'The warranty which these courts find is one of merchantable quality or fitness for the general purpose for which the goods are made, rather than any special purpose of the buyer. The deliberate policy of carrying the responsibility back to the manufacturer who is best able to meet it is indicated by a few decisions which have refused to find any warranty from a wholesaler to the consumer. Less comprehensible are the decisions of three courts which have confined the manufacturer's warranty to the food or beverage inside of a container, and have refused to find any warranty that the container itself will not explode in the customer's face. * * *'

Adding by footnote,

'The distinction of course makes no sense. One may speculate that these courts were uneasy about the proof that the plaintiff had not damaged the container himself.'

The record in this case amply bears out that the bottle was defective and that the plaintiff had not damaged it. Thus, we are presented with the question of whether or not a warranty is applicable where the bottle had a defect in it at the time it was purchased. Undoubtedly, Prosser, from the excerpt we have just cited, thinks that it is. While this court would not, at this time, extend the doctrine of implied warranty to all containers of food, in this case the bottle and its contents are so closely related that it is difficult--if not impossible--to draw a distinction.

In Mahoney v. Shaker Square Beverages, Ohio Com.Pl.1951, 102 N.E.2d 281, where a bottle containing ale exploded, the court held that a bottle containing pressure which caused it to explode under ordinary handling is a 'dangerous instrumentality' and is not of 'merchantable quality'. It is not necessary to hold, and we do not hold, that the bottle in question here is a 'dangerous instrumentality'. However, a portion of the Mahoney case is particularly appropriate where--in discussing the question of whether or not an implied warranty theory applies to...