Degouveia v. H. D. Lee Mercantile Co.

• Decision Date: 07 December 1936
• Citation: 100 S.W.2d 336,231 Mo.App. 447
• Parties: ANNA De GOUVEIA, APPELLANT, v. H. D. LEE MERCANTILE CO. ET AL., RESPONDENTS
• Court: Kansas Court of Appeals

100 S.W.2d 336

231 Mo.App. 447

ANNA De GOUVEIA, APPELLANT, v. H. D. LEE MERCANTILE CO. ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

December 7, 1936

Appeal from Circuit Court of Jackson County.--Hon. Emory H. Wright Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Cope & Hadsell, Hume & Raymond and Roy W. Rucker for appellant.

Gossett Ellis, Dietrich & Tyler for respondents.

OPINION

BLAND, J.

This is an action for personal injuries suffered by the plaintiff by reason of an alleged breach of warranty as to the fitness for human consumption of the contents of a can of salmon purchased by the plaintiff in Kansas City from one Ben Singmon, a groceryman. The case was brought against Singmon the retail dealer and H. D. Lee Mercantile Company, wholesale merchants, who sold the can of salmon in question to Singmon.

At the close of plaintiff's testimony she took an involuntary nonsuit and moved, unsuccessfully, to have the same set aside, resulting in this appeal by her. The question presented to us by both parties in their briefs is whether there was sufficient evidence to go to the jury on the question of liability of the defendants, or either of them. The can of salmon involved was purchased by the plaintiff on the 26th day of January, 1933. She took it home and she and her family ate of it at the evening meal, resulting in plaintiff becoming ill. A subsequent examination of the contents of the can indicated that it contained a large black fly.

The H. D. Lee Mercantile Company is a corporation located in Kansas City, Missouri, with a branch in Salina, Kansas, and is engaged in the business of wholesaler and jobber of food stuffs. Plaintiff had no dealings with this company. Plaintiff's evidence tends to show that the H. D. Lee Mercantile Company purchased the salmon in question from the Pacific American Fisheries located in South Billingham, Washington, through the latters agents, Deming & Gould. The salmon in question had been packed by the Pacific American Fisheries at one of its plants in Alaska.

The lot, which the can in question was a part, had no labels on them when purchased. The labels of the H. D. Lee Mercantile Company were furnished by it to Deming & Gould, who, in turn, delivered them over to the Pacific American Fisheries for attachment to the cans. These labels included the one on the can in question and contained the trademark of the H. D. Lee Mercantile Company being the word "Lee" surrounded by a wreath. The label, in reference to the trademark, contained the further words "The Guide To High-Grade Foods." It also stated: "Salmon Packed For The H. D. Lee Mercantile Company, Kansas City, Missouri, Salina, Kansas." No other name appeared on the can.

When the can was purchased by the plaintiff there was nothing unusual about its appearance, the label on it was clean, the can was not bulged and, when it was opened, the inside was bright and shiny. There was no improper odor about the fish. The meat was firm and there was no decomposition in the fish, itself, so far as the plaintiff could see. When plaintiff purchased the can of salmon in question she asked for Lee's brand of salmon because Singmon had told her on former occasions, when she purchased salmon from him, that Lee's brand of food was high-grade products and that Lee's brand of salmon was the best salmon handled by Singmon. She also purchased it because, "It was advertised and I had always thought the red salmon that Lees advertised was high-grade food; that was the reason I bought it." There is no evidence as to what the advertisement consisted of that was seen by plaintiff prior to her purchase of the salmon in question.

It is insisted by the plaintiff that she made a submissible case, against the defendant, H. D. Lee Mercantile Company, for a breach of an implied warranty of fitness for human consumption of the salmon in question.

It is well settled that the vendee may sue his immediate vendor for a breach of implied warranty of fitness of an article sold for immediate human consumption. [Beyer v. Coca-Cola Bottling Co. of St. Louis, 75 S.W.2d 642; Fantroy v. Schirmer, 296 S.W. 235; Crocker Wholesale Gro. Co. v. Evans, 272 S.W. 1017.] The general rule is that a warranty of chattels is contractual in its nature and that there can be no warranty without privity of contract. [Ranney v. Meisenheimer, 61 Mo.App. 434; Chappell v. Boram et al., 159 Mo.App. 442, 141 S.W. 19; Wm. Wurdack Elec. Mfg. Co. v. Elliott et al., 207 S.W. 877.] There is no privity of contract in this case between plaintiff and the H. D. Lee Mercantile Company.

However, this court in the case of Madouros v. K. C. Coca-Cola Bottling Co., 90 S.W.2d 445, held the bottler of Coca-Cola liable to the consumer on the theory of a breach of an implied warranty of fitness for human consumption of the article, although there was no privity of contract between the consumer and the bottler. This ruling was undoubtedly contrary to the weight of authority on the question in this country. [See cases cited at page 448 of the opinion in the Madouros case.] Defendants attempt to have us overrule the decision in that case. However, we do not think that case is determinative of this one and, therefore, we will not attempt to review it. That case, if anything, is authority against the contention of the plaintiff, for the reason that this court went to the extreme of holding the bottler liable as a warrantor to the consumer, in the absence of any contractual relation between them, ond the ground, among others, that the manufacturer, himself, was the only person who could have known of the contents of the bottle; that the product was designed for ultimate consumption in its original container by an individual patron; that it was so put out as to facilitate and make convenient a resale which might be made pending its ultimate consumption and that no handler of the product was able to learn of its contents.

As before stated, the Madouros case is based on an exception to the rule that there can be no implied warranty in the absence of a contractual relation. The holding was based upon an unusual circumstance and one not present in the case at bar as affecting the H. D. Lee Mercantile Company, the wholesaler, and we are not disposed to make any further exception to the rule, especially when there is no reason for so doing. When the salmon in question was purchased by the H. D. Lee Mercantile Company it was sealed with no oportunity for that company to inspect it and discover whether it contained the foreign matter found in its contents by the plaintiff. Consequently, that company was in a different situation than the manufacturer, whose duty it was to see that no harmful matter got into the food when it was being packed.

No case is cited by the plaintiff holding the wholesaler liable to the purchasing consumer on the theory of implied warranty. The case of Darks v. Grocer Co., 146 Mo.App. 246, 130 S.W. 430, cited by the plaintiff was one based upon negligence. Aside from this, the wholesaler represented itself as the manufacturer of the article containing the poison. No question involving the matter of privity of contract could have arisen for the reason that the suit was between the vendor and the minor children of the vendee, who came to his death as a result of partaking of the poison sold the vendee by the vendor. The case of Slavin v. Leggett & Co., 177 A. 120 (N.J.), was a negligence case. There is nothing in the opinion in the case of Swift & Company v. Hawkins, 164 So. 231 (Miss.), disclosing that it was one based upon the theory of warranty.

However plaintiff contends that the H. D. Lee Mercantile Company should be held under the rule stated in the Am. Law Institute, Restatement of the Law of Torts, section 400, as follows: "One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer." In this connection plaintiff...