Grapico Bottling Co. v. Ennis

• Decision Date: 30 November 1925
• Docket Number: 25015
• Citation: 140 Miss. 502,106 So. 97
• Court: Mississippi Supreme Court
• Parties: GRAPICO BOTTLING CO. et al. v. ENNIS. [*]

106 So. 97

140 Miss. 502

GRAPICO BOTTLING CO. et al. v. ENNIS. ^[*]

No. 25015

Supreme Court of Mississippi

November 30, 1925

Suggestion of Error Overruled Dec. 7, 1925.

(In Banc. Suggestion of Error Overruled Dec. 7, 1925.)

1 CORPORATIONS. Stockholder not liable for debts and liabilities of corporation; stockholder, not participating in bottling of drinks, not liable for damages resulting to buyers.

A stockholder of a corporation is not liable for the debts and liabilities of the corporation; and, where a corporation bottled drinks, a stockholder is not liable for damages resulting to buyers, where the stockholders did not participate in the actual bottling of the drinks.

2 SUNDAY. Person buying drink on Sunday not entitled to recover against manufacturer on theory of implied warranty of whole-someness of drink.

Under section 1366, Code of 1906 (Hemingway's Code, section 1102), a person who buys a drink on Sunday, being in pari delicto with the seller, is not entitled to recover against the manufacturer on the theory of implied warranty of the wholesomeness of said drink.

3. SALES. Before manufacturer is liable to person for breach of warranty of fitness and wholesomeness of drink, party injured must have obtained some rightful possession thereof; implied warranty of wholesomeness of drink runs with sale; if sale is void by statute, recovery cannot be had on warranty.

Before a manufacturer is liable to a person for the breach of a warranty of the fitness and purity of its drinks, the party injured must have obtained some kind of rightful possession of the drink. The implied warranty runs with the sale, and passes with the title, and where the sale is made void by statute a recovery cannot be had.

HOLDEN and COOK, JJ., dissenting.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, Second District, HON. R S. HALL, Judge.

Action by John Henry Ennis against the Grapico Bottling Company and another. Judgment for plaintiff, and defendants appeal. Reversed, and judgment entered for defendants.

Judgment reversed.

Welch & Cooper, for appellants.

The case was tried by the plaintiff on the theory that there was an implied warranty on the part of the manufacturer that the product of its plant was free from impurities. The jury was instructed in effect that the defendants were insurers against impurities. The trial court followed Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791, and Rainwater v. Hattiesburg Coca Cola Bottling Co., 95 So. 444, 131 Miss. 315. See also 117 Miss. 490, 78 So. 356.

We contend earnestly that the doctrine of implied warranty is not applicable on account of the sale having been made on Sunday. Certainly there can be at no time, and under no circumstances an implied contract when an express written contract would have been void, as contrary to law and public policy. The plaintiff testified that he bought the soft drink on a Sunday. The transaction was in plain violation of sections 1366 and 1367, Mississippi Code of 1906, sections 1102 and 1103, Hemingway's Code. Gilbreath could not have recovered from plaintiff the price of the drink. If any special warranty had been made by Gilbreath to plaintiff, the plaintiff could not have recovered on such warranty made on Sunday. Miller v. Lynch, 38 Miss. 344; Kountz v. Price, 40 Miss. 341; McKee v. Jones, 67 Miss. 403, 7 So. 348.

It follows that the directed verdict requested by each of the defendants should have been granted. We ask the court to reconsider the doctrine of implied warranty announced in the Chapman case, supra. The Chapman case is in conflict with the great weight of authority and opens the door for fraud and is productive of perjury.

A very recent case on this point is Bertha Cysky v. Drake Bros. Co., 235 N.Y. 468, 129 N.E. 576, 27 A. L. R. 1533. The authorities in support of and against the doctrine of the Chapman case are collated and analyzed in the note to Windram Manufacturing Co. v. Boston Blocking Company, 131 N.E. 454, 17 A. L. R. 669.

A case absolutely in point, and one wherein the Chapman case is cited, and its doctrine condemned is Birmingham Chero Cola Bottling Company v. Clark, 89 So. 64. See also Tonsman v. Greenglass et al., 142 N.E. 756; Davis v. Van Camp Packing Co., 176 N.W. 382; Crigger v. Coca Cola Bottling Co., 179 S.W. 155.

The court below treated the negligence of the bottler as being a liability that would run with the property, and the owner of the property as liable. The corporation sold its assets to an individual as it had a right to do. It so happened that the individual purchaser of the assets of the corporation was a stockholder of the corporation. But there was no hint or intention that this purchaser knew anything of this liability. Debts of the corporation would not have become debts of the individual purchaser for valuable consideration, and to us it seems unthinkable that the individual defendant became liable by reason of his acquiring property of the corporation. If this were the law the owner of an automobile who was negligent in the operation of it so that he damaged an individual could pass on his liability for such damage to another by selling to some one else the automobile that had been negligently used. Inanimate objects may be reached to satisfy a judgment, but certainly the use of inanimate objects cannot result in fixing liability of a former owner on a subsequent one. It follows that a directed verdict should have been given.

Jeff Collins and J. T. Taylor, for appellee.

Counsel for appellee states that: "The case was tried by the plaintiff on the theory that there was an implied warranty on the part of the manufacturer that the product of its plant was free from impurities." That theory, we submit, is in keeping with all the law on the question in this state, and the cases cited by appellee, Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791, and case of Rainwater v. Hattiesburg Coca Cola Bottling Co., 95 So. 444, properly propounded the law on the question, and all the instructions given both for plaintiff and for defendants in this case were in accord with the law controlling suits of this kind. This case is identical in facts with those cases, and naturally must be identical in law, and, therefore, the instructions given in this case being similar to those given, and in accordance with the law in those cases cited, it naturally follows that it is correct.

But appellee insists that since Ennis bought the root beer on Sunday from Gilbreath he should not be allowed to succeed in this case, insinuating that Ennis, in buying the root beer on Sunday, was an outlaw. We submit that there is no law against the buying on Sunday, even if there is a law against selling on Sunday. Ennis bought, he did not sell. He violated no law, even if Gilbreath did. Gilbreath sold. Ennis bought root beer. Even at that, the proof shows that the flies were not put into the root beer on Sunday. The proof is that the flies were in the root beer when it reached Gilbreath, and not on Sunday. We submit that the proximate cause of the injury was not the drinking of the root beer, but was the putting of the flies in the root beer that Ennis afterwards drank.

"Where an attorney is retained on a secular day, he may recover for the value of the retainer, although he may have conferred with his client on Sunday." Bowers v. Jones et al., 86 So. 711.

The more enlightened rule, and the one supported by the great weight of authority, is that a violation of the Sunday law by the person injured does not prevent a recovery, as such violation is not the efficient proximate cause of the injury, or an essential element of the cause of action; and as the time when the injury was inflicted is only an incident and not the foundation of the action. 37 Cyc. 573; Black v. City of Lewiston (Idaho), 13 P. 80; Louisville N. A. & C. R. Co. v. Frawley (Ind.), 9 N.E. 594; Morris v. Chicago M. & St. P. R. Co., 26 F. 23; Knowlton v. Milwaukee City Ry. Co. (Wis.), 18 N.W. 17; Opsahl v. Judd (Minn.), 14 N.W. 575.

These, and other cases of this character, all bearing on this subject, are to be found in note at the end of Merchants Wharf-Boat Association v. Wood, 2 So. 76.

As between appellant and appellee in this case the Sunday law does not enter. Neither one of them was violating any Sunday law and it should not be injected into the case, but since counsel for appellee has done so we are quite sure that our explanation of the rule of law on that question is sufficiently clear, and we are certain clearly demonstrates that had Ennis been violating a Sunday law it would not have changed the situation at all, and we, therefore submit that this case under all circumstance should be affirmed.

Welch & Cooper, in reply for appellants.

This case is one sounding in contract. 40 Cyc. 492. The contract is void because of a violation of the Sunday law. The contract of sale was void and the warranty was implied by law as a part thereof, and necessarily it goes down with the contract. The court, through a long line of cases, has held Sunday contracts to be void. Kountz v. Price, 40 Miss. 341; Block v. McMurry, 56 Miss. 217.

Counsel say that the flies were in the bottle before they reached Gilbreath. This may be true. But this argument is not material here. There was no contractual relationship of any nature between appellants and appellee until that bottle was sold. It was sold on Sunday and is void of necessity. Had appellee bought the bottle on a credit, Gilbreath could not have recovered on the contract for it was void absolutely.

Counsel cite a number of cases all sounding in tort. The Black case 13 P. 80, was a personal injury case. The Frowler case, 9 N.E. 594, was...