Davis v. Radford

• Decision Date: 07 March 1951
• Docket Number: No. 96,96
• Citation: 63 S.E.2d 822,233 N.C. 283
• Parties: , 24 A.L.R.2d 906 DAVIS, Adm'r v. RADFORD et al.
• Court: North Carolina Supreme Court

Page 822

63 S.E.2d 822

233 N.C. 283, 24 A.L.R.2d 906

DAVIS, Adm'r v. RADFORD et al.

No. 96

Supreme Court of North Carolina.

March 7, 1951

Francis J. Heazel and Harkins, Van Winkle, Walton & Buck, all of Asheville, for plaintiff, appellee.

Smathers & Meekins, Asheville, for defendant, appellant.

DEVIN, Justice.

The appeal is from a judgment in the court below overruling the demurrer of defendant Dr. T. C. Smith Company to the answer and cross-complaint of defendant Radford. Briefly stated, the pleadings present this picture: Defendant Radford, a retail merchant, having been sued by a customer for breach of the implied warranty of wholesomeness and consequent damage in the sale of an article for human consumption, known as 'Westsal,' has had Dr. T. C. Smith Company (hereinafter referred to as Smith Company), a wholesale dealer, made party defendant, Service Fire Ins. Co. v. Horton Motor Lines, 225 N.C. 588, 35 S.E.2d 879, upon allegations in his answer that defendant Smith Company sold him the article complained of in a sealed package or bottle with implied warranty that it was fit for human consumption and that, if it be adjudicated in this action that defendant Radford is liable to the plaintiff for breach of warranty, defendant Smith Company is primarily liable therefor, and defendant Radford would be entitled to recover over against defendant Smith Company for the loss sustained, and that all matters affecting both defendants growing out of the same transaction should be settled in one action.

The question here presented is whether a retail dealer when sued by a customer for breach of the implied warranty of wholesomeness in an article sold in sealed package, has the right to bring in the wholesale dealer from whom he purchased, on allegation that the wholesaler impliedly warranted to the retailer that the article was fit for human consumption, and was primarily liable for injury resulting.

It may be noted that the only person whom plaintiff has sued is Radford, though he has offered no objection to the order making Smith Company party defendant. Both the plaintiff's complaint and defendant Radford's cross-complaint are bottomed upon allegations of implied warranty. It is not contended that defendants were joint tort feasors, or that there was a joint obligation on part of defendants. But it is contended by defendant Radford that sufficient facts are alleged in his answer considered in connection with the complaint to sustain the action of the court in bringing in the wholesale dealer from whom he purchased the product complained of as one primarily liable for any injury resulting from its use for human consumption, and sufficient to survive the demurrer. The only objection offered by Smith Company is by way of demurrer questioning the sufficiency of the allegations in Radford's answer to state a cause of action against it.

A person who sells an article for use in connection with food for human consumption is held in law to have impliedly warranted that it is wholesome and fit for that purpose, and for breach of that warranty proximately resulting in injury may be held liable in damages to the purchaser. Ward v. Morehead City Seafood Co., 171 N.C. 33, 87 S.E. 958; Rabb v. Covington, 215 N.C. 572, 2 S.E.2d 705; Williams v. Elson, 218 N.C. 157, 10 S.E.2d 668. However, in Thomason v. Ballard & Ballard Co., 208 N.C. 1, 179 S.E. 30, it was held that for an injury from unwholesome food purchased from a retail merchant the manufacturer could not be held liable for breach of implied warranty but only on proof of negligence, for the reason that there was no contractual relation between the manufacturer and the consumer to which implied warranty with respect to food could attach. Enloe v. Charlotte Coco-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Caudle v. F. M. Bohannon Tobacco Co., 220 N.C. 105, 16 S.E.2d 680. But this rule was somewhat modified in Simpson v. American Oil Co., 217 N.C. 542, 8 S.E.2d 813, 816, where it was said that when an article sold in original package carried a label giving assurance it was suitable for the purpose as an insecticide and harmless to human skin, this would constitute a warranty on the part of manufacturer and distributor 'running with the product into the hands of the consumer for whom it was intended.' Potter v. National Supply Co., 230 N.C. 1, 7, 51 S.E.2d 908. In case of sale of goods for human consumption the requirement of privity of contract is not always controlling. 55 C.J. 669.

Under the decision in Simpson v. American Oil Co., supra, it would seem that the plaintiff here could have maintained an action against Smith Company, the distributor, for the cause set out in his complaint, though he has elected to sue only the retail dealer. Furthermore, the principle has also been established by the decisions of this Court that where the wholesaler has sold to a retail dealer for resale personal property with implied warranty of fitness for the use for which it was purchased and sold, and the retail dealer has sold to a customer with same warranty, and for breach of this warranty been by judgment compelled to pay, the retail dealer may thereafter in turn maintain action against the wholesaler for the entire loss sustained. Aldridge Motors, Inc., v. Alexander, 217 N.C. 750, 9 S.E.2d 469; Ashford v. H. C. Shrader Co., 167 N.C. 45, 83 S.E. 29. The rule is stated in Williston on Contracts, sec. 1355, as follows: 'Where goods are sold with a warranty to a dealer it must be assumed that the dealer may resell them with a similar warranty to a subpurchaser. Accordingly if this is done, and the subpurchaser recovers damages from the original buyer, the latter has a prima facie right to recover these damages against the seller who originally sold him the goods. And even though the original buyer has not yet been held liable to his vendee the amount of his probable liability may be recovered from the original seller.'

In Stokes v. Edwards, 230 N.C. 306, 52 S.E.2d 797, 800, the plaintiffs, retail dealers, purchased from wholesale dealers and manufacturers 14 oil burners for curing tobacco with implied warranty of fitness for that purpose. These burners were sold to plaintiffs' customers with same warranty and proved unfit. Plaintiffs refunded to their customers and sued the wholesalers and manufacturers for the full amount. Recovery was sustained, this Court holding that the original sellers having impliedly warranted that the goods were reasonably fit for the contemplated purpose were liable to the buyers for the damages proximately resulting to them from the breach of the warranty, and Justice Ervin, speaking for the Court, added: 'This is true even though the seller is not the manufacturer or producer of the goods, and even though the buyer is a dealer who purchases the goods for resale to others for the contemplated use.'

So, in the case at bar it would seem to follow logically that if defendant Radford had personally suffered by reason of the breach of Smith Company's warranty, he could have recovered the loss from Smith Company, and if he should suffer loss by reason of recovery of damages against him by one to whom he sold with same warranty he could recover the entire amount sustained from Smith Company. In other words, where the distributor or wholesale dealer sells to the retail dealer articles in original packages for human consumption with warranty of wholesomeness and the retail dealer sells under the same warranty to a customer, for the injury resulting the retail dealer may properly charge the wholesaler with primary liability for the loss sustained. When sued by the customer under these circumstances may the retail dealer join the wholesaler in the suit upon allegations in the answer of primary liability of the wholesaler in the event of recovery by the...