Griggs Canning Co. v. Josey, 7733.

• Decision Date: 22 July 1942
• Docket Number: No. 7733.,7733.
• Citation: 164 S.W.2d 835
• Parties: GRIGGS CANNING CO. et al. v. JOSEY et al.
• Court: Texas Supreme Court

Page 835

164 S.W.2d 835

GRIGGS CANNING CO. et al. v. JOSEY et al.

No. 7733.

Supreme Court of Texas.

July 22, 1942.

Certified Question from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Norman Josey and others against Griggs Canning Company and others. From a judgment for plaintiffs the defendants appeal to the Court of Civil Appeals which certified questions to the Supreme Court.

Question answered.

Wm. N. Hensley and Johnson & Rogers, all of San Antonio, for appellants.

Guy Cater, of San Antonio, for appellees.

ALEXANDER, Chief Justice.

This case is before this Court on certified question. Norman Josey's wife purchased a can of spinach from Jesus V. Ocon, a retail merchant. The label on the can plainly showed the name and address of the manufacturer or processor. The spinach was unfit for human consumption. Josey's wife and stepson became ill as a result of eating the spinach. Under the foregoing facts, the Court of Civil Appeals has certified to this Court the following question:

"Was Ocon, the retail dealer, liable to Josey for selling his wife a can of unwholesome spinach, plainly labeled with the processor's name and address, upon the theory that he (Ocon) impliedly warranted that said spinach was fit for human consumption?"

We assume that the purpose of the inquiry is to ascertain whether or not Ocon is liable to Josey in damages for personal injuries suffered by Josey's wife as a proximate result of the eating of the unwholesome spinach. The question to be here determined is whether a retail merchant who buys canned food intended for human consumption from a manufacturer, and sells same to his customer for immediate consumption, is liable in damages for the injuries caused to the consumer thereof by reason of the unwholesomeness of such food.

In the case of Jacob E. Decker & Sons, Inc. v. Mrs. Pearl Capps, 164 S.W.2d 828, this day decided, we held that a nonnegligent manufacturer who processed and sold contaminated food to a retailer for resale for human consumption was liable to the consumer thereof for the injuries sustained by him as a result of the eating of such food. That holding was not based upon any supposed negligence of the manufacturer, nor upon the breach of any warranty implied in fact from the supposed terms of the contract, but was based upon the broad principle of an implied warranty imposed by law as a matter of public policy for the protection of human health and life. It was there recognized as a well-known fact that food products are processed and given the appearance of being suitable for human consumption and are placed in the channels of commerce with the intention that they shall pass from hand to hand until some one is induced to buy and consume the same; that it is usually impracticable, if not impossible, for the ultimate consumer to analyze the food and ascertain whether or not it is suitable for human consumption; and that where such products sold for human consumption prove to be unfit for that purpose, there is such an utter failure of the purpose for which it is sold, and the consequences of eating unwholesome food are so disastrous to human health and life, that the law imposes a warranty of wholesomeness in favor of the consumer against the processor and each vendor thereof as a matter of public policy. The warranty is imposed as a matter of public policy to discourage the sale of unwholesome food.

The general rule is well established that in the sale of food products for immediate consumption by human beings there is an implied warranty that the commodity is wholesome and is fit for the purpose for which it is sold. 22 Amer.Jur. 880, § 96; 37 Tex.Jur. 299; 55 C.J. 764; Race v. Krum, 222 N.Y. 410, 118 N.E. 853, L.R.A. 1918F, 1172; Wiedeman v. Keller, 171 Ill. 93, 49 N.E. 210; Houston Cotton Oil Co. v. Trammell, Tex.Civ.App., 72 S.W. 244. In order to recover for breach of this so-called implied warranty it is not necessary to prove any fault or negligence on the part of the dealer other than the mere sale of the unwholesome food.

It is urged by the defendant that there is an exception to this rule in favor of a retailer who buys and sells goods in sealed containers. It must be conceded that there are authorities which recognize such an exception. Bigelow v. Maine C. R. Co., 110 Me. 105, 85 A. 396, 43 L.R.A.,N.S., 627; Scruggins v. Jones, 207 Ky. 636, 269 S.W. 743; Elmore v. Grenada Grocery Co., 189 Miss. 370, 197 So. 761; Davis v. Williams, 58 Ga.App. 274, 198 S.E. 357; Pennington v. Canberry Fuel Co., 117 W.Va. 680, 186 S.E. 610; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726. These authorities base their holding on the ground that there is and can be no reliance on the skill and judgment of the retailer, because the purchaser knows at the time he buys the canned goods that the seller has had no opportunity to examine its contents and is therefore in no better position than the buyer to determine whether or not it is fit for human consumption. It must be remembered, however, that the rule which holds a vendor of food products liable in case they prove to be unwholesome is not based on any negligence of the vendor nor on any supposed implied terms of the contract, but on the broad principle of a warranty imposed by law as a matter of public policy for the protection of public health. It is said that the warranty is implied, irrespective of the seller's knowledge of the defects therein. See authorities above cited, and especially 55 C.J. 764, § 733, p. 764.

Mr. Williston in his work on Sales, in our opinion, satisfactorily answers the contention that a retailer who sells canned goods should escape the usual liability imposed on a food vendor. In discussing the authorities sustaining such a contention, he says:

"The imposition of absolute liability upon a dealer who sells canned goods of reputable manufacture has been denied by the Supreme Court of Maine on the ground that the seller cannot possibly discover that a particular can is defective, and that it is, therefore, unjust to subject him to liability. The same argument, however, may be made in regard to any implied warranty, not only of food, but of other articles where the seller could not discover the defect. Accordingly, if canned goods are to be made an exception to the general rule governing sales of food, the whole law of implied warranty should be revised and placed on the basis of negligence. But the general principle of the common law is opposed to this, and certainly if a dealer is ever to be made liable for injuries caused by defective goods where he has been guilty of no fault, the reasons are stronger for holding him liable for selling defective food than in any other kind of sale. According to the weight of authority, presumably for these reasons, a dealer is liable for selling such food even though in cans of a reputable brand." 1 Williston on Sales, pp. 481, 482.

The leading case refusing to make an exception to the liability of the dealer on implied warranty in case of canned goods is Ward v. Great Atlantic & Pacific Tea Co., 1918, 231 Mass. 90, 120 N.E. 225, 226, 5 A.L.R. 242. In that case the plaintiff recovered damages from the defendant, a retail grocery concern, for injuries to his teeth caused by a pebble in a can of beans. While the court in that case based its holding of liability under Subdivision 1 of Section 15 of the Uniform Sales Act, the court made it clear that the provision of the Sales Act was only a codification of the common law as it had theretofore existed in Massachusetts, and in the course of its opinion said:

"There appears to us to be no sound reason for ingrafting an exception on the general rule, because the subject of the sale is canned goods, not open to the immediate inspection of the dealer, who is not the manufacturer, any more than of the buyer. It doubtless still remains true that the dealer is in a better position to know and ascertain the reliability and responsibility of the manufacturer than is the retail purchaser. But the principle stated in Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N.E. 481, 15 L.R.A.,N.S., 884, 126 Am.St.Rep. 436, 15 Ann.Cas. 1076 [21 Am. Neg.Rep. 142] [that there is an implied warranty in sales of food], is a general one. It has long been established. Simply because it may work apparent hardship in certain instances is no reason for changing it to fit particular cases. It is a salutary principle. It has become wrought into the fabric of the law as the result of long experience. It may be assumed that the affairs of mankind have become adjusted to it. It has recently been adopted by the Legislature in codifying the law as to sales. It imposes liability in the absence of an express contract between the parties governing the subject. It places responsibility upon the party to the contract best able to protect himself against original wrong of this kind, and to recoup himself in case of loss, because he knows or comes in touch with the manufacturer. * * * The retail purchaser in cases of this sort ordinarily would be at some disadvantage if his only remedy were against the manufacturer."

In the case of Ryan v. Progressive Grocery Stores, 1931, 255 N.Y. 388, 175 N.E. 105, 74 A.L.R. 339, Judge Cardozo, writing for the New York Court of Appeals, approved the decision of the Massachusetts court in Ward v. Great Atlantic & Pacific Tea Co., supra, as applied to cases where the selection of the goods is made by the dealer, and held that where the buyer selects the brand and does not rely on the skill and judgment of the dealer there is an implied warranty of merchantable quality under Subdivision 2 of Section 15 of the Sales Act. Other decisions holding the retailer liable under the Sales Act are Burkhardt v. Armour & Co., 115 Conn. 249, 161 A. 385, 90 A.L.R. 1260; Griffin v. James Butler Grocery Co., 108 N.J.L. 92, 156 A. 636; Lieberman v. Sheffield Farms-Slawson-Decker Co., 117 Misc....