Crystal Coca-Cola Bottling Co. v. Cathey

• Decision Date: 19 November 1957
• Docket Number: COCA-COLA,No. 6367,6367
• Citation: 83 Ariz. 163,317 P.2d 1094
• Parties: CRYSTALBOTTLING CO., a corporation, Appellant, v. Friou CATHEY, Appellee.
• Court: Arizona Supreme Court

Page 1094

317 P.2d 1094

83 Ariz. 163

CRYSTAL COCA-COLA BOTTLING CO., a corporation, Appellant, v. Friou CATHEY, Appellee.

No. 6367.

Supreme Court of Arizona.

Nov. 19, 1957.

Conner & Jones, and A. O. Johnson, Tucson, for appellant.

Martin S. Rogers, Tucson, for appellee.

PHELPS, Justice.

This appeal involves the liability of a beverage bottler to an ultimate consumer for personal injury damages sustained as a result of drinking a beverage containing a dead fly. The complaint alleges:

'* * * That the defendant is or was at all times hereinafter mentioned engaged in the bottling of, or preparation of, a beverage known as Coca Cola in individual bottles for human consumption and thereby warranted the substance contained in said bottles to be fit for human consumption.

'That on or about the 28th day of October, 1955, the plaintiff purchased a bottle of Coca Cola prepared and distributed by the defendant-company and that on said day he consumed a part of the contents of the same; that the contents of said bottle which came into the plaintiff's mouth included a dead fly; that immediately the plaintiff was made ill and continued thereafter to be extremely ill from what he had consumed and was in the process of consuming.

'That on account of the defendant's said act in providing the plaintiff with said substance in the manner stated resulting in illness to the plaintiff, causing him to suffer pain and metal anguish and loss of earnings, and as a result thereof the plaintiff was damaged in the sum of Three Thousand and No/100 ($3,000.00) Dollars.'

The plaintiff, Friou Cathey, introduced evidence to show that he purchased a bottle of coca-cola from a drugstore. The salesclerk took the bottle from a cooler, opened the bottle at the cooler, and placed it on the counter about two or three feet away in front of Cathey. The bottle remained on the counter for about a minute before Cathey began to drink from it. After he had consumed about a third of the bottle something caught in his throat which caused him to spit the contents of his mouth back into the bottle. Examination revealed a dead fly in the bottle. Cathey became ill and vomited three times that evening according to his testimony and that of his wife, and he experienced spells of nausea for a week or more afterward. Evidence established that the drugstore had purchased the bottle of coca-cola from the defendant, Crystal Coca-Cola Bottling Co.

The defendant introduced evidence to show that its bottling plant was operated under sanitary conditions common to similar bottling plants with the usual inspection after washing and before filling the bottles. Defendant also presented testimony to the effect that coca-cola bottles can be opened and the cap replaced without any obvious indication of tampering.

At the close of plaintiff's case and again at the close of all the evidence, the court denied the defendant's motions for a directed verdict. The court instructed the jury on the elements of liability under implied warranty as well as in negligence. He also gave instructions on the inference which arises under the doctrine of res ipsa loquitur and when it applies and left to the jury's determination whether the plaintiff was entitled to the benefit of this doctrine.

The jury returned a verdict of $1,000 for the plaintiff and judgment was entered accordingly. The court denied defendant's motion to set aside the verdict and also denied defendant's motion for a new trial on condition that plaintiff remit $400 of the $1,000 judgment within ten days. The plaintiff made a highly conditional offer of remittal which did not amount ot an acceptance of the remittitur. The defendant appeals from the judgment and the order denying these motions.

Defendant-appellant sets forth thirteen assignments of error in his brief. Because each proposition of law asserted by defendant is used to support a group of these assignments, for the sake of simplicity, we shall discuss the correnctness of each proposition of law in order to determine the propriety of the judgment entered.

Defendant's Proposition of Law A reads:

'There can be no action for breach of warranty of a food or beverage when there is no privity of contract between the parties.'

This precise proposition has never before been presented to this court for decision. Defendant admits that there is a split of authority on this proposition. He cites the New York case of Chysky v. Drake Bros. Co., 235 N.Y. 468, 139 N.E. 576, 27 A.L.R. 1533, in support of his position. A number of other jurisdictions hold that there can be no implied warranty in the absence of privity of contract and admit of no exception in the case of foodstuffs and beverages. Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667; Drury v. Armour & Co., 140 Ark. 371, 216 S.W. 40; Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224; Pelletier v. Dupont, 124 Me. 269, 128 A. 186, 39 A.L.R. 972; Vaccarino v. Cozzubo, 181 Md. 614, 31 A.2d 316; Carlson v. Turner Centre System, 263 Mass. 339, 161 N.E. 245; Smith v. Salem Coca-Cola Bottling Co., 92 N.H. 97, 25 A.2d 125; Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Lombardi v. California Packing Sales Co., R.I., 112 A.2d 701; Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405, 158 S.W.2d 721, 171 A.L.R. 1200. However an imposing group of jurisdictions hold that there is an exception to the general rule in the case of manufacturers of foodstuffs such that an implied warranty of fitness inures to the benefit of the ultimate consumer though there be no strict privity of contract running between the manufacturer and consumer. Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687, 163 P.2d 470; Heimsoth v. Falstaff Brewing Corp., 1 Ill. App.2d 28, 116 N.E.2d 193; Anderson v. Tyler, 223 Lowa 1033, 274 N.W. 48; Coca-Cola Bottling Co. v. Savage, Miss., 89 So.2d 634; Williams v. Coca-Cola Bottling Co., Mo.App., 285 S.W.2d 53; Ward Baking Co. v. Trizzino, 27 Ohio App. 475, 161 N.E. 557; Sweeney v. Cain, Tex.Civ.App., 243 S.W.2d 874. We believe that the decisions in the latter group of jurisdictions represent the more recent trend and provide the better reasoned authority. Eisenbeiss v. Payne, 42 Ariz. 262, 25 P.2d 162. Most particularly we quote with approval from Jacob E. Decker & Sons, Inc., v. Capps, 139 Tex. 609, 164 S.W.2d 828, 829, 142 A.L.R. 1479, as follows:

'After having considered the matter most carefully, we have reached the conclusion that the manufacturer is liable for the injuries sustained by the consumers of the products in question. We think the manufacturer is liable in such a case under an implied warranty imposed by operation of law as a matter of public policy. We recognize that the authorities are by no means uniform, but we believe the better reasoning supports the rule which holds the manufacturer liable. Liability in such case is not based on negligence, nor on a breach of the usual implied contractual warranty, but on the broad principle of the public policy to protect human health and life. It is a well-known fact that articles of food are manufactured and placed in the channels of commerce, with the intention that they shall pass from hand to hand until they are finally used by some remote consumer. It is usually impracticable, if not impossible, for the ultimate consumer to analyze the food and acertain whether or not it is suitable for human consumption. Since it has been packed and placed on the market as a food for human consumption, and marked as such, the purchaser usually eats it or causes it ot be served to his family without the precaution of having it analyzed by a technician to ascertain whether or not it is suitable for human consumption. In fact, in most instances the only satisfactory examination that could be made would be only at the time and place of the processing of the food. It seems to be the rule that where food products sold from human consumption are unfit for that purpose, there is such an utter failure of the purpose for which the food is sold, and the consequences of eating unsound food are so disastrous to human health and life, that the law imposes a warranty of purity in favor of the ultimate consumer as a matter of public policy.

'While a right of action in such a case is said to spring from a 'warranty,' it should be noted that the warranty here referred to is not the more modern contractual warranty, but is an obligation imposed by law to protect public health. According to Prof. Williston the law of warranty is older by a century than the action of special assumpsit, from which the modern law of contracts developed. 1 Williston on Sales, p. 368, § 195; Jeanblanc, 'Manufacturer's Liability to Persons, Other Than Their Immediate Vendees,' 24 Va.L.Rev. 134, 158, at p. 148. The action on a warranty sounded in tort was in the nature of an action on the case for deceit, although it was not necessary to plead and prove scienter. 1 Williston on Sales, p. 371. It is believed that much of the confusion among the courts on this question is due to the failure to note this difference in the use of the term 'warranty'. It has led many courts to believe that in order to sustain an action under such a warranty there must be privity of contract and reliance on the representation. The doctrine of privity of contract and of the necessity therefor in order to sustain an action grew out of the later action of assumpsit. It applies only when one is seeking to enforce a contract. Here the liability of the manufacturer and vendor is imposed by operation of law as a matter of public policy for the protection of the public, and is not dependent upon any provision of the contract, either expressed or implied.'

We hold that in the case of food, beverages, and drugs an implied warranty by the manufacturer that the goods are pure and free from deleterious foreign substances inures to the benefit of the ultimate consumer of those...