Carlson v. Turner Ctr. Sys.

• Decision Date: 05 April 1928
• Citation: 161 N.E. 245,263 Mass. 339
• Parties: CARLSON v. TURNER CENTRE SYSTEM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 339

161 N.E. 245

CARLSON

v.TURNER CENTRE SYSTEM.

Supreme Judicial Court of Massachusetts, Suffolk.

April 5, 1928.

Exceptions from Superior Court, Suffolk County; H. P. Williams, Judge.

Action by Emeline Carlson against the Turner Centre System. Verdict was ordered for defendant, and plaintiff brings exceptions. Exceptions overruled.

Sales k255-Consumer, buying milk from retailer, cannot recover against wholesaler for glass in milk; there being no contractual relation.

Consumer, buying milk from retailer, held as matter of law not entitled to recover from wholesaler under count in contract for injury due to glass in milk, on theory that there was implied warranty that milk was fit for human consumption, since there was no contractual relation between consumer and wholesaler, who dealt only with retailer.

Frederick T. Conley, of Boston, for plaintiff.

Alfred W. Putnam, of Boston, for defendant.

BRALEY, J.

The defendant corporation engaged in the business of bottling and selling milk in quart and pint glass bottles, sold to one Holden, a retail dealer and its largest bottle customer, a quart bottle of milk with the name ‘Turner Centre System’ blown in the glass, which was purchased by the plaintiff of Holden. It could be found, on the evidence, that at the time of purchase there was a small piece of glass in the milk which lodged in the throat of the plaintiff while she was using it for food, causing injuries for which she seeks damages. A witness for the defendant stated that he was in charge of the process of bottling the milk, which he described. It appeared that, in washing the bottles before filling them with milk, the bottles were heated to a point just short of breaking, and that the bottles often broke while being washed, and sometimes pieces of glass flew into bottles that were being filled.

The first count of the declaration, which is in tort for negligence, is not before us. It is contended by the plaintiff under the second count, in contract, upon which she elected to rely, that, while there was no express warranty, there was an implied warranty by the defendant that the milk in question was wholesome and fit for human consumption. But there was no contractual relation between the defendant and the plaintiff, who dealt only with the retailer. In Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N. E. 407, 5 A. L. R. 1100, and Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 120 N. E. 225, 5 A. L. R. 242,...