Elmore v. Grenada Grocery Co

• Decision Date: 23 September 1940
• Docket Number: 34216
• Citation: 197 So. 761,189 Miss. 370
• Court: Mississippi Supreme Court
• Parties: ELMORE v. GRENADA GROCERY CO

197 So. 761

189 Miss. 370

ELMORE v. GRENADA GROCERY CO

No. 34216

Supreme Court of Mississippi, Division B

September 23, 1940

APPEAL from the circuit court of Yalobusha county, HON. JOHN M KUYKENDALL, Judge.

Action by C. N. Elmore, Jr., against Grenada Grocery Company, to recover for an illness alleged to have been caused by deleterious substance in a can of pineapple. From an adverse judgment, plaintiff appeals. Affirmed.

Affirmed.

Stone &amp Stone, of Coffeeville, for appellant.

We have one case to cite and it does appear to us that this settles this lawsuit in favor of the complainant, the appellant. That case is the case of Swift Company v. Hawkins, decided September, 1935, 174 Miss. 253, 164 So. 231. If this case does not decide the case at bar and does not call for a reversal then we will give it up. We do not claim that the Grenada Grocery Company packed this goods but when they adopted the trade name of "Volunteer" and pushed this stuff all over the country they are just as liable as the people that did put out the stuff. There is no need of quoting the case; there is less than two pages in the writing of the opinion and it fits this case like a glove. Where the other people had adopted the trade name "Brookfield" the Grenada Grocery Company had adopted and was putting out and distributing the "Volunteer" products and they fall under the rule quoted by Judge Griffith, "One who puts out as his own a chattel manufactured by another is subject to the same liability as though he were its manufacturer."

I do not think that there is the slightest room for argument that our case was not proved, and we must remember that when a motion to exclude is sustained it must be taken as a case where everything proved by the plaintiff is true and also everything that the testimony reasonably tends to prove is true.

Cowles Horton, of Grenada, for appellee.

Appellee rests his suit in this case upon the claim that he is entitled to recover under the rule applied in Swift &amp Company v. Hawkins, 174 Miss. 253. Upon the question whether that case applies four parties must be kept in mind. They are (1) the plaintiff who sues, (2) S. R. Geeslin, a merchant of Scobey, Mississippi, who owns and operates his own store and who sold the pineapple to the plaintiff, (3) Grenada Grocery Company, a Mississippi corporation domiciled at Grenada, Miss., which had no other connection with this case than to sell the pineapple as a wholesaler to the retail merchants, and (4) Volunteer Stores, Incorporated of America Chicago, Illinois, an Illinois corporation doing business in all of the states.

In the Hawkins case, Swift Company occupied the exact position occupied here by the Illinois corporation-- not the one occupied by the appellee. In that case the cheese was "put out" by Swift "as its own" product. In the case here this pineapple was "put out" by the Chicago company "as its own" product. Neither the Illinois company nor the appellee nor anyone else ever "put out" this pineapple as the product of Grenada Grocery Company. Neither on the label nor on anything else shown by this record is there anything upon which the learned court below could have held appellee, the wholesaler, as the implied warrantor of this article. In holding, therefore, that appellant had sued the wrong party the learned court below was merely adopting the rule laid down in the Hawkins case--an old, well settled principle of the law under which a party is always bound in the sale of any sort of article where the party "puts it out upon the market" as "its own" product. Otherwise the manufacturer even could never be successfully sued unless plaintiff could show actual manufacture by the one against whom the suit is based.

In the case at bar this pineapple was neither put up by or for the appellee. It did not bear its label nor anything else...