Community Blood Bank, Inc. v. Russell

• Decision Date: 01 March 1967
• Docket Number: No. 35417,35417
• Citation: 196 So.2d 115
• Parties: COMMUNITY BLOOD BANK, INC., a corporation, Petitioner, v. Mae O. RUSSELL, Respondent.
• Court: Florida Supreme Court

Page 115

196 So.2d 115

COMMUNITY BLOOD BANK, INC., a corporation, Petitioner, v. Mae O. RUSSELL, Respondent.

No. 35417.

Supreme Court of Florida.

March 1, 1967.

Mann, Harrison, Mann & Rowe, and John T. Allen, Jr., St. Petersburg, for petitioner.

Bryson & Patterson, St. Petersburg, for respondent.

D. Fred McMullen, and Ausley, Ausley, McMullen, O'Bryan, Michaels & McGehee, Tallahassee, for Florida Association of Blood Banks, Lewis, Roca, Scoville, Beauchamp & Linton, Paul M. Roca, James Moeller, Paul G. Ulrich, Phoenix, Ariz., Keen, O'Kelley & Spitz, A. Frank O'Kelley and Victor Cawthon, Tallahassee, for Blood Services, as amici curiae.

PER CURIAM.

This cause is before this court on petition for certiorari to review, on direct conflict grounds, the decision of the District Court of Appeal, Second District, in Russell v. Community Blood Bank, Inc., Fla.App.1966, 185 So.2d 749.

The decision brought here for review actually decided two separate points of law, one of which (as to whether the transaction Sub judice constituted a sale rather than a service) was decided in accordance with the previous decisions of this court; however, the court's ruling on the other point of law (referred to more particularly hereafter) is in direct conflict with the decision of this court in Green v. American Tobacco Company, Fla.1963, 154 So.2d 169, and cases therein cited. Accordingly, jurisdiction attaches under the 'direct conflict' provision of Section 4, Article V, Fla.Const., F.S.A.

The respondent, plaintiff below, sued the petitioner-defendant to recover damages sustained when she contracted the disease 'serum hepatitis' from a blood transfusion administered to her while a patient in a hospital (not made a party to this suit). As the basis for her complaint against petitioner-defendant (hereafter referred to as 'the Blood Bank'), the plaintiff alleged that the blood was sold to her by the Blood Bank as a separate transaction 'complete in itself and entirely apart from any services rendered' to her by the hospital; that the blood as impure in that it contained the virus known as serum hepatitis; and that 'the sale and condition of said blood was a breach of the implied warranties of merchantability and fitness for the use intended, to-wit, to be administered to the Plaintiff in the form of a blood transfusion.'

The Blood Bank filed a motion to dismiss the complaint upon the ground, among others, that the complaint showed on its fact that the transaction between the parties constituted a service rather than a sale to which an implied warranty of merchantability and fitness could attach; hence, that no cause of action for breach of implied warranty was stated. In support of this defense the Blood Bank relied on decisions of courts of other jurisdictions in which the supplying of blood by a hospital or blood bank was held to be a service rather than a sale. See Perlmutter v. Beth David Hospital (1954), 308 N.Y. 100, 123 N.E.2d 792 (said to be the leading case on the subject); Goelz v. J. K. & Susie L. Wadley Research Institute and Blood Bank (Tex.Civ.App.1961), 350 S.W.2d 573; Balkowitsch v. Minneapolis War Memorial Blood Bank (1965), 270 Minn. 151, 132 N.W.2d 805; and Whitehurst v. American National Red Cross (1965), 1 Ariz.App. 326, 402 P.2d 584. Finding these decisions 'persuasive', the trial court granted the motion to dismiss. The appeal by plaintiff followed, culminating in the decision here reviewed.

The controlling question in the trial court on the motion to dismiss was whether or not the complaint stated a cause of action. The complaint alleged, among other things, 'that the Defendant Sold certain blood to the Plaintiff for this purpose' (emphasis supplied.) and then alleges that 'the blood sold to the Plaintiff and administered to her in the form of said transfusion was impure and unfit for the use intended as it contained a certain virus commonly known as serum hepatitis'; that an implied warranty arose between the defendant, as seller, and plaintiff, as buyer, of the blood. Damages were claimed on the alleged breach of warranty.

A motion to dismiss by the defendant was granted with prejudice by the trial court, holding that the transaction was a service rather than a sale, and further reciting 'that there is not a known way to determine whether blood given in a transfusion would actually have serum hepatitis in it * * *'. On review the District Court of Appeal, Second District, reversed the decision of the trial court and remanded for further proceedings, thus holding that the complaint on its face stated a cause of action. The issues of fact would then be settled by trial.

Up to this point the District Court was eminently correct in reversing the trial court and remanding the cause for trial on issues of fact. See Green v. American Tobacco Company, supra. However, because the trial court had unnecessarily gone further than the controlling question and had given consideration to the question of whether or not there is a known way to determine whether blood given in a transfusion would actually have serum hepatitis in it, the District Court felt impelled to also delve into that subject. The question of whether there is a recognized method of detection was premature since that question is one of fact, and it was error for the trial court to settle it with a pronouncement of law. For the same reason it was premature and error for the District Court to undertake to settle as a question of law that, which under the pleadings, would be a question of fact. We do not here review, consider or decide as a question of law whether or not there is a recognized method of detection, for frankly we do not know and do not have any record of testimony before us from which to consider it, nor have we considered whether, if established by the fact, such would constitute a legal defense as that question is premature for the same reason. It is therefore our view, and we hold, that the trial court should have denied the motion to dismiss for the reason that the complaint stated a cause of action.

For the reasons stated that portion of the judgment of the District Court of Appeal which reverses the trial court and remands the cause for further proceedings (trial) was correct, but that part of the opinion which discusses other and premature questions and announcing prematurely what would constitute a defense is surplusage and is hereby expunged. The opinion of the District Court having been thus revised, the writ of certiorari is discharged.

It is so ordered.

THOMAS, ROBERTS, DREW and ERVIN, JJ., concur.

ROBERTS, J., concurs specially with Opinion.

O'CONNELL, J., concurs in part and dissents in part with Opinion.

THORNAL, C. J., and CALDWELL, J., dissent.

ROBERTS, Justice (concurring specially).

I have agreed with the majority opinion remanding the case for trial on the facts. However, both the trial court and the District Court of Appeal have involved and decided other vital questions of law, and the opinion of the District Court has been published. See 185 So.2d 749. In the interest of uniformity of decision, I therefore deem it necessary to comment on the pronouncements of law made by the District Court.

As to the first point of law mentioned above, the appellate court reviewed the cases from other jurisdictions relied upon by the Blood Bank and rejected the 'service rather than sale' rule as applied to a blood bank which originally collects the commodity and supplies it to a patient for a consideration. Noting that the underlying factor in most, if not all, of such decisions was that 'it would be against public policy to impose strict warranty liability, for an undetectable, unremovable defect, against a non-commercial organization which was supplying a commodity essential for medical treatment,' the appellate court said:

'It seems to us a distortion to take what is, at least arguably, a sale, twist it into the shape of a service, and then employ this transformed material in erecting the framework of a major policy decision. Florida has rejected the 'service' rule in the sale of food by a restaurant, Cliett v. Lauderdale Biltmore Corp., Fla.1949, 39 So.2d 476, and we apply the rationale of that case to reject the 'service' rule here, in a suit against the blood bank.' 185 So.2d at page 752.

I agree. A transaction whereby a blood bank, which is engaged in the business of collecting and distributing blood, transfers the title to the commodity to a patient for a consideration, is unquestionably a 'sale', whether tested by the law in effect at the time of the transaction Sub judice, see Edwards v. Baldwin Piano Co., 1920, 79 Fla. 143, 83 So. 915; Cliett v. Lauderdale Biltmore Corp., Inc., Fla.1949, 39 So.2d 476; or by the new Uniform Commercial Code, Ch. 671 and 672, Fla.Stat.1965, F.S.A., effective January 1, 1967.

Nor can it be questioned that the commodity in question--blood supplied for the purpose of a blood transfusion--is a product intended for human consumption' quite as much as is a vaccine, cf. Gottsdanker v. Cutter Laboratories, 1960, 182 Cal.App.2d 602, 6 Cal.Rptr. 320, 69 A.L.R.2d 290, or a food product; and it is well settled in this jurisdiction that the manufacturer or producer of a product intended for human consumption of intimate body use is held strictly liable, without fault, for consequential injuries to a consumer or user resulting from a defect in such product. See Blanton v. Cudahy Packing Company, 1944, 154 Fla. 872, 19 So.2d 313; Carter v. Hector Supply Co., Fla.1961, 128 So.2d 390; Green v. American Tobacco Co., supra, 154 So.2d 169; Wagner v. Mars, Inc., Fla.App.1964, 166 So.2d 673; Bernstein v. Lily-Tulip Cup Corp., Fla.App.1965, 177 So.2d 362.

It was at this point, however, that the appellate court took an entirely new approach to the strict or implied warranty theory of liability, as established by this court. It ruled, as to products which it termed 'unavoidably unsafe', that

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