Fender v. Colonial Stores, Inc., 51836

• Decision Date: 18 February 1976
• Docket Number: No. 3,No. 51836,51836,3
• Citation: 138 Ga.App. 31,225 S.E.2d 691
• Parties: , 19 UCC Rep.Serv. 402 FENDER v. COLONIAL STORES, INC., d/b/a Big Star Food Store et al
• Court: Georgia Court of Appeals

Page 691

225 S.E.2d 691

138 Ga.App. 31, 19 UCC Rep.Serv. 402

FENDER v. COLONIAL STORES, INC., d/b/a Big Star Food Store et al.

No. 51836.

Court of Appeals of Georgia, Division No. 3.

Feb. 18, 1976.

Rehearing Denied March 9, 1976.

Ervin, McCullough & Sherrill, John A. Sherrill, Atlanta, for appellant.

Hurt, Richardson, Garner & Todd, Robert L. Todd, Greene, Buckley, DeRieux & Jones, Alfred B. Adams, III, Gregory J. Digel, R. Dennis Withers, Atlanta, for appellees.

DEEN, Presiding Judge.

1. The plaintiff urges several theories of recovery against the appellee-retailer in whose store the explosion occurred: Breach of warranty; violation of shopkeeper's duty to customers under Code § 105-401; and, res ipsa loquitur. It is contended that the evidence adduced at trial supported her right to recover under any or all of these theories such that the direction of a verdict in favor of the retailer was error.

A. Warranty. An action based on breach of warranty necessitates a showing of the existence of the warranty, the fact that the warranty was broken and that the breach of the warranty was the proximate cause of the loss sustained. Official Comment 13 to Uniform Commercial Code § 2-314. In support of its directed verdict the defendant-retailer contends that the plaintiff's evidence failed to establish the existence of a warranty. Code Ann. § 109A-2-314(1) provides in pertinent part: 'Unless excluded or modified (109 A-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind . . .' (Emphasis supplied.) The retailer urges there was no warranty because at the moment of explosion the plaintiff had as yet not paid for the bottle.

The retailer argues that no title had passed on the goods; this ignores, however, the clear language of § 109A-2-314 that a warranty is implied upon a contract for sale and not solely upon the execution of the self itself. Code Ann. § 109A-2-106(1) defines 'contract for sale' as 'both a present sale of goods and a contract to sell goods at a future time . . .' We therefore see this issue as not one of title passing from the retailer to the consumer but one of the existence of a contract between the parties to sell goods at a future time. A contract is of course 'an agreement between two or more parties for the doing or not doing of some specified thing' and requires 'parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject-matter upon which it can operate.' Code §§ 20-101, 20-107. The plaintiff has the burden of showing the existence of the warranty by establishing that at the time the bottle exploded there was a contract for its sale existing between herself and the retailer.

The plaintiff's evidence in this case showed that the retailer's store was of the usual 'self-service' type, in which customers were supplied with carts and allowed to roam the aisles at will, selecting items from the shelves and cases and then negotiating the check-out line where the purchases are rung up on the register and the total price is paid. The plaintiff testified that she had finished her shopping and was in the physical act of placing the bottles on the counter for payment when the explosion occurred; she further testified that she was at the check-out counter to pay for her purchases.

We think this evidence sufficient to show that the retailer's act of placing the bottles on the shelf with the price stamped upon them manifested an intent to offer them for sale, the terms of the offer being that it would pass title to the customer when they were presented at the check-out counter and paid for. Likewise we think that the evidence shows that the plaintiff's act of taking physical possession of the goods with the intent to purchase them manifested an intent to accept the offer and a promise to take them to the check-out counter and to there pay for them. Under Code Ann. § 109A-2-206(1) (a): 'Unless otherwise unambiguously indicated by the language or circumstances an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances . . .' (Emphasis supplied.) Placing the goods on the shelf for customer inspection and selection was clearly an offer to sell them at the stated price; the retailer did not indicate by language or circumstances that acceptance of this offer could not be accomplished by taking possession of the goods with an implied promise to pay for them upon checkout rather than by the actual act of exchanging money. It is equally reasonable under the terms of the offer that acceptance could occur in any one of three ways: (1) by delivering the goods to the check-out counter and paying for them; (2) by the promise to pay for the goods as evidenced by their physical delivery to the check-out counter; and (3) by the promise to deliver the goods to the check-out counter and to pay for them there as evidenced by taking physical possession of the goods by their removal from the shelf. Under the circumstances surrounding this transaction we believe reasonable men could conclude that the plaintiff's act of taking physical possession of the goods with the intent to pay for them constituted a reasonable mode of acceptance; that by taking physical possession and delivering to the check-out counter the plaintiff promised to pay for them at the stated price and that this promise is sufficient consideration to support a contract, Code § 20-304; that a contract for the sale of the goods came into being when the plaintiff accepted the offer by taking physical possession thereof with the intent to pay for them; and that from that moment forward the implied warranties of Code Ann. § 109A-2-314 were applicable. See Seigel v. Giant Food, Inc., 20 Md.App. 611, 318 A.2d 874. 'A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract. An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.' Code Ann. § 109A-2-204(1) and (2).

Nor do we believe that the fact that the customer in a 'self-service' store has the right to return merchandise to the shelves at any time before payment is made militates against a finding that a contract for the sale of goods has come into being before such payment. "Termination' occurs when either party pursuant to a power created by agreement or law puts an end to the contract otherwise than for its breach . . .' Code Ann. § 109A-2-106(3). We believe that the fact that the retailer permits the customer to 'change his mind' indicates only an agreement between the parties to allow the customer to end his contract with the retailer irrespective of a breach of the agreement by the retailer. See Seigel v. Giant Food, Inc., supra.

In reaching this decision that in the context of a self-service store a contract for sale of goods may arise before payment is actually made for the goods, we are not unaware of decisions in other jurisdictions to the contrary. Loch v. Confair, 361 Pa. 158, 63 A.2d 24; Lasky v. Economy Grocery Stores, 319 Mass. 224, 65 N.E.2d 305; Day v. Grand Union Co., 280 App.Div. 253, 113 N.Y.S.2d 436. These cases were all decided prior to the adoption in their jurisdictions of the Uniform Commercial Code with its liberalized concept of contract formation and at a time when passage of 'title' was the relevant legal prerequisite to a warranty action. It is true that the Court of Appeals of our sister state of North Carolina by discussion of the 'passage of title' in a recent decision reached a similar result to that we have reached here. Gillispie v. The Great Atlantic and Pacific Tea Co., 14 N.C.App. 1, 187 S.E.2d 441. While we agree with the result reached in the Gillispie decision we do not agree that the question of whether a contract for sale exists is dependent upon the passage of title. We embrace rather the well-reasoned opinions of Seigel v. Giant Food, Inc., supra, and Giant Food Inc. v. Washington Coca-Cola Bottling Co., Inc., 273 Md. 592, 332 A.2d 1, 16 UCC 340 (1975) to the effect that a contract of sale of goods in the self-service supermarket context may arise before payment is actually made for the goods and title passes.

The retailer urges that even if we find a warranty has arisen in this case, as we have in fact so found, that the plaintiff's evidence fails to show a breach thereof. The testimony was that the goods selected were normal in appearance, that the bottles had not struck or touched the carton or any of the bottles against any object at any time after they were removed from the shelf, but that the bottle exploded as it was being placed on the counter for check-out and that the plaintiff was injured by flying glass. 'It is obvious that Coca Cola bottles which would break under normal handling are not fit for the ordinary use for which they were intended and that the relinquishment of physical control of such a defective bottle to a consumer constitutes a breach of warranty. Thus the evidence was sufficient to show that when the bottles left the retailer's control they did not conform to the representations of the warranty of merchantability, and that this breach of the warranty was the cause of the loss sustained. Having made this prima facie showing appellant was entitled to have the jury pass upon the questions of whether the warranty was breached, and if so, whether the breach caused his injury.' Seigel v. Giant Food, Inc., supra.

B. Code § 105-401 Liability. The plaintiff was an invitee on the retailer's premises. Higdon v. Ga. Winn-Dixie, Inc., 112 Ga.App. 500(2), 145 S.E.2d 808. As such the retailer owed her a duty to exercise ordinary care in keeping the premises safe. The defendant was required to protect the...