Dothan Chero-Cola Bottling Co. v. Weeks

• Decision Date: 26 November 1918
• Docket Number: 4 Div. 541
• Citation: 80 So. 734,16 Ala.App. 639
• Parties: DOTHAN CHERO-COLA BOTTLING CO. et al. v. WEEKS.
• Court: Alabama Court of Appeals

80 So. 734

16 Ala.App. 639

DOTHAN CHERO-COLA BOTTLING CO. et al. v. WEEKS.

4 Div. 541

Court of Appeals of Alabama

November 26, 1918

Rehearing Denied Dec. 17, 1918

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Action by I. Henry Weeks against the Dothan Chero-Cola Bottling Company and others. Judgment for plaintiff, and the named defendant appeals. Affirmed.

Hill &amp Thigpen, of Dothan, for appellant.

T.M Espy, of Dothan, for appellee.

BROWN P.J.

On the trial of the case in the court below, the appellee recovered $10 damages, and appellant's contention is that the action is in tort, and, under the provisions of section 3663 of the Code, he is entitled to recover no more costs than damages. The case was submitted to the jury on the second count of the complaint, the other count being eliminated by amendment, and if this count states a cause of action in tort, the appellant's contention is correct and must be granted. Danforth v. McClellan, 196 Ala. 567, 72 So 104. This is true notwithstanding the provisions of section 3662 of the Code as amended by the act approved September 16 1915 (Laws 1915, p. 598), providing that--

"The successful party in all civil actions is entitled to full costs, for which judgment must be rendered, unless in cases otherwise directed by law, or by the judgment of the court," etc.

The provisions of the quoted section have no application to cases falling within the provisions of section 3663.

It is not clear from count 2 whether the action is ex delicto or ex contractu, and while demurrers were filed by the appellant in the court below questioning the sufficiency of the averments of this count as stating and defining a cause of action, on this appeal it has waived any benefit arising therefrom by failing to assign errors on the ruling of the court on the demurrers . Otherwise stated, the appellant cannot waive his demurrers, and at the same time claim the benefit of having interposed them. Therefore, in disposing of the question as to whether the court was invested with a discretion in taxing costs, the complaint will be accorded a liberal construction in order to sustain the judgment. Stewart v. Goode et al., 29 Ala. 476; Kyle v. Carravello, 103 Ala. 153, 15 So. 527; Walker v. Mobile M.B. & M. Ins. Co., 31 Ala. 529; Phillips v. Sellers, 42 Ala. 661; Amer. Bonding Co. v. N.Y. & Mexican Whiting Co., 11 Ala.App. 578, 66 So. 847.

It is a well-settled rule of law that where a manufacturer sells articles of his own make in the absence of an express warranty, a warranty by implication of law arises that such articles are reasonably fit for the purposes for which they were intended. Snow v. Schomacker Mfg. Co., 69 Ala. 111, 44 Am.Rep. 509; Kennebrew v. Southern Automatic Ele. Mach. Co., 106 Ala. 380, 17 So. 545; Troy Grocery Co. v. Potter, 139 Ala. 359, 36 So. 14; 6 Mayf.Dig. 810, § 67; 23 Eng.Rul.Cas. 480; Kellogg, Bridge & Co. v. Hamilton, 110 U.S. 108, 3 Sup.Ct. 537, 28 L.Ed. 86. So in the absence of an express warranty the law implies that the manufacturer or packer of foods, beverages, drugs, condiments, and confections intended for human consumption warrants that their products are fit for human consumption, and that they have used in the selection and preparation of such articles that degree of care ordinarily exercised by persons skilled in the business of preparing and packing articles of this character for distribution or sale to the general public. Travis v. L. & N., 183 Ala. 415, 62 So. 851; Pantaze v. West, 7 Ala.App. 599, 61 So. 42; Kellogg, Bridge & Co. v. Hamilton, 110 U.S. 108, 3 Sup.Ct. 537, 28 L.Ed. 86; Addison on Contracts (Morgan's Ed.) p. 218, § 621; Doyle v. Fuerst & Kraemer, 129 La. 839, 56 So. 906, 40 L.R.A.(N.S.) 480, and note, Ann.Cas.1913B, 1110; 1 Rolle, Abridge. 90, pl. 1 and 2; Randall v. Newsom, 23 Eng.Rul.Cas. 480; Van Bracklin v. Fonda, 12 Johns. (N.Y.) 468, 7 Am.Dec. 339; Marshall v. Peck, 1 Dana (Ky.) 612; Humphreys v. Comline, 8 Blackf. (Ind.) 516; Hoover v. Peters, 18 Mich. 51.

This warranty is not for the benefit of the retailer who purchases in large quantities for resale, and such retailer is not liable to the consumer of articles of the character here involved, if he purchases of a reputable manufacturer or dealer, and the goods so purchased and supplied by him are such as are without imperfections that may be discovered by the exercise of the reasonable care of a person skilled and experienced in dealing it and supplying goods to the general public. Biglow v. Maine Central R.R. Co., 110 Me 105, 85 A. 396, 43 L.R.A.(N.S.) 627; Winsor v. Lombard, 18 Pick. (Mass.) 57. "As to hidden imperfections, the consumer must be deemed to have relied on the care of the...