Carter v. Hector Supply Co., 30797

• Decision Date: 22 March 1961
• Docket Number: No. 30797,30797
• Parties: Harry Edward CARTER, Petitioner, v. HECTOR SUPPLY CO., a Florida corporation, Respondent.
• Court: Florida Supreme Court

Page 390

128 So.2d 390

Harry Edward CARTER, Petitioner, v. HECTOR SUPPLY CO., a Florida corporation, Respondent.

No. 30797.

Supreme Court of Florida.

March 22, 1961.

Rehearing Denied April 19, 1961.

Nichols, Gaither, Green, Frates & Beckham, and Sam Daniels, Miami, for petitioner.

Reginald L. Williams and Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell and Earl Faircloth, Miami, for respondent.

THORNAL, Justice.

By petition for a writ of certiorari we are requested to review a decision of a court of appeal account of an alleged conflict with prior decisions of this Court.

We must decide whether a retailer is liable on an implied warranty of fitness to a non-purchaser-user of a piece of equipment which is not inherently dangerous.

The decision submitted for review is Hector Supply Co. v. Carter, Fla.App.1960, 122 So.2d 22, 23. Carter was an employee of the Dade County school system. Pursuant to advertised invitations respondent Hector Supply Co., a retailer, offered to sell the school board 'Four, King O'Lawn Riding Sulky, bucket type seat[s] * * *.' The school board purchased the sulkies by the brand name submitted by the retailer. The brand met specifications stipulated by the purchaser. After using the sulkies for several months Carter, the employee, was injured when the frame of one of them collapsed as a result of metal fatigue occasioned by a latent defect. Carter sued Hector, claiming a breach of an alleged warranty of fitness. A jury verdict for Carter was reversed by the Court of Appeal, Third District, 122 So.2d 22, supra. The decision of that court is now tendered for review with the contention that it conflicts with prior decisions of this Court in Smith v. Burdines, Inc., 144 Fla. 500, 198 So. 223, 131 A.L.R. 115; Sencer v. Carl's Market, Fla.1950, 45 So.2d 671, and, Food Fair Stores of Florida, Inc. v. Macurda, Fla.1957, 93 So.2d 860.

It is the position of the petitioner Carter that the court of appeal erroneously held that there is no implied warranty of fitness when a retailer can not, in the exercise of due care, discover the alleged defect. Petitioner asserts that this court decided that a retailer could be held liable on an implied warranty absent express or implied knowledge of the defect in Smith, Sencer and Macurda.

Preliminary to deciding the point in contest we deem it advisable to emphasize certain aspects of the instant situation. It should be constantly borne in mind that Carter is attempting to sue Hector on an implied warranty. This is not an action grounded on alleged negligence. Carter was an employee of the purchaser of the sulky but did not occupy any relationship of privity with the seller. There is nothing in the record to suggest that the commodity involved, i. e., a riding sulky, could in any respect be classified as a dangerous instrumentality, such as an automobile or an airplane. It is obvious, of course, that no food product is involved. Finally, it should be noted that the action is brought against a retailer and not against the manufacturer.

Perhaps in its judicial incipiency the rule of liability on implied warranty was grounded in some measure on the law covering deceit and therefore assumed the complexion of a tort action. However, it is now generally agreed that the implication of a warranty arises out of a contractual relationship. Williston, Sales, Rev.Ed. Section 197; 46 Am.Jur., Sales, Section 332; 77 C.J.S. Sales § 302 and § 325.

The court of appeal appeared to conclude that in this action against the retailer privity of contract was not an essential. To support its position the court of appeal relied upon its own decision in Continental Copper & Steel Industries, Inc. v. E. C. 'Red' Cornelius, Inc., Fla.App.1958, 104 So.2d 40, and the decision of this Court in Matthews v. Lawnlite Co., Fla.1956, 88 So.2d 299. The confidence of the court of appeal in these prior decisions is not justified. Neither of the cases involved the question of liability of a retailer under the theory of implied warranty for injuries resulting from a latent defect. Both of the cases resolved primarily the question of liability of a manufacturer to one who purchased the manufactured commodity through a middleman. Subject to limited exceptions which we hereafter describe a retailer is liable only to his customer when the effort is made to impose upon him the strict and absolute liability implicit in a warranty.

The cases relief upon by the petitioner all involved situations in which the immediate customer of the retailer sought to impose liability under an implied warranty of fitness. Two of them, Sencer v. Carl's Market, supra, and Food Fair Stores of Florida, Inc. v. Macurda, supra, involved foodstuffs. This is well-recognized exception to the privity requirement. In the third case relied on by petitioner, Smith v. Burdines, supra, the privity element was present.

To avoid any suspicion that we have overlooked the point, we mention that in our opinion the commodity involved in the instant case could not be classified under any possible dangerous instrumentality exception to the privity requirement when the retailer becomes involved in an implied warranty situation. For a discussion of such a possibility see: Prosser, Torts, 2d Ed., 1955, Secs. 84, 85; 74 A.L.R.2d 1111; 75 A.L.R.2d 39. Here the item was not a mechanical device as such. It was more nearly like a chair than a machine.

We disagree with the court of appeal when it held that privity was not essential to recovery in the instant case. Nevertheless, we have for other reasons arrived at the conclusion that its ultimate judgment was correct and therefore not subject to being disturbed.

The ultimate holding of the court of appeal is to the effect that proof of actual or implied knowledge of a defect on...