Hadley v. Hillcrest Dairy, Inc.

• Decision Date: 09 January 1961
• Citation: 341 Mass. 624,171 N.E.2d 293
• Parties: George F. HADLEY v. HILLCREST DAIRY, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 293

171 N.E.2d 293

341 Mass. 624

George F. HADLEY v. HILLCREST DAIRY, INC.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 27, 1960.

Decided Jan. 9, 1961.

Francis T. Mullin, Worcester, for plaintiff.

Francis W. Conlin, Worcester, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

SPALDING, Justice.

The plaintiff testified as follows: On October 12, 1957, a route salesman of the defendant delivered three one-half gallon glass jugs of milk to the plaintiff's house in Leicester. The salesman placed the milk on a shelf inside the kitchen door. The plaintiff paid for the milk but 'as far as he knew there was no special charge * * * for the * * * container.' Thereafter, the plaintiff's wife put the milk into the refrigerator. Some of the milk was used on the day it was delivered, and some of it was used the following day. On Wednesday, October 16, the plaintiff opened the refrigerator door and took out a one-half gallon jug of milk. As he was placing it on a table 'it shattered and cut his right thumb and injured his right hand.' The 'glass went into his hand' as he set the jug down. At the time of the accident the plaintiff held the container 'by the neck, * * * where the round part goes into the length of the bottle.' There was 'a piece that had shattered off' and this pierced his hand. The plaintiff 'noticed that the glass was variable in thickness and that the jug broke up and down * * * [its] length.' The jug bore the words 'Hillcrest Dairy Farms--quality checked.' From the time that the milk was delivered at his house until the time of the accident, the plaintiff did not strike the jug against anything. None of his children touched the jug, and the plaintiff 'did not see his wife strike the jug or hit it against any object.' Several days after the accident, following his discharge from a hospital, the plaintiff called the defendant's manager and informed him of the accident. ¹

The plaintiff's wife testified that between the time of its delivery and the accident the jug which broke was 'handled by nobody except herself and her husband'; and that she never hit the jug against anything while handling it.

After the introduction of the foregoing evidence, the defendant moved for a directed verdict, and the motion was allowed. The questions for decision arise out of the plaintiff's exception to this ruling.

The plaintiff's declaration contains three counts. The first alleges breach of an implied warranty of fitness; the second, breach of an implied warranty of merchantability; and the third is in tort for negligence.

1. We are of opinion that the plaintiff was entitled to go to the jury on the first and second counts. See G.L. c. 106, § 17(1), (2). Since the transaction occurred before the effective date of the Uniform Commercial Code, the rights of the parties are governed by the sales act, the pertinent provisions of which are, 'There is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose. (2) Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that they shall be of merchantable quality.' ² In Poulos v. Coca-Cola Bottling Co. of Boston, 322 Mass. 386, 77 N.E.2d 405 (a case involving an exploding bottle of carbonated beverage), it was held that the warranty of merchantability applied to the bottle as well as to the contents and that the plaintiff (a storekeeper who purchased the beverage in case lots for resale and who was injured by the explosion) was entitled to go to the jury in an action against the bottler for breach of such warranty. There was no discussion in that opinion as to whether there was a sale of the bottle. In Mead v. Coca Cola Bottling Co., 329 Mass. 440, at pages 442-443, 108 N.E.2d 757, at page 759 however (decided nearly five years later), which also was an action for breach of warranty of merchantability arising out of the explosion of a bottle of carbonated beverage it was said, 'A primary question for decision is whether the implied warranty of merchantability imposed on the seller by the statute covered the containing bottle as well as the beverage. To establish a warranty as to the bottle it was necessary to show that the bottle had been sold.' The only authority cited for this proposition was the Poulos case. The court, after discussing the circumstances of the sale, concluded that there was a sale of the bottle to which the warranty could attach.

The defendant in the case at bar argues that the plaintiff does not bring himself within the Mead case, for there was no evidence of a sale of the jug which caused his injury. The evidence reveals little or nothing on that issue. All that we learn from the record is that 'as far as * * * [the plaintiff] knew there was no special charge * * * for the * * * container.' There was no evidence that it was customary to return the jug to the defendant or whether upon such return any refund was given to the customer. See Commonwealth v. Brandon Farms Milk Co., 249 Mass. 531, 144 N.E. 381, 35 A.L.R. 780. It seems likely that the transaction was either an outright sale of the milk and the jug, or a sale of the milk in a jug which was lent until its contents should be consumed. In view of common knowledge about the practices in the distribution of milk in the circumstances here presented, we assume that the jug was lent rather than sold and that the plaintiff was under a duty to return it.

In our view it is immaterial whether or not the property in the jug passed to the plaintiff. We reach this conclusion notwithstanding what was said in the Mead case. Upon reconsideration, we are now of opinion that a sale of the container, as such, is not necessary in order for the implied warranties of fitness and merchantability to attach in this transaction. This question was considered by the Court of Appeal in Geddling v. Marsh, [1920] 1 K.B. 668, in construing almost identical provisions of the English sale of goods act. ³ Concerning the construction of the warranty provisions by the English courts, we have said, 'Decisions of this character, in view of the fact that the English Sale of Goods Act was enacted before our own and of the close similarity of the pertinent section of each act, are entitled to consideration.' Ward v. Great Atlantic & Pac. Tea Co., 231 Mass. 90, 95, 120 N.E. 225, 227, 5 A.L.R. 242. In Geddling v. March the plaintiff sold at retail bottled beverages received from the defendant manufacturer. The plaintiff was charged by the defendant three shillings per dozen for the beverage, and one penny for each bottle. The penny was refunded on the return of the bottle, and was forfeited if the bottle was broken or for any other reason was not returned. One of the bottles exploded and injured the plaintiff as she was handling it in her shop. In an action based on breach of an implied warranty of fitness, the trial judge found for the plaintiff. He found that the article sold was not fit for use because of improper ingredients, faulty mixture, or a defect in the bottle. He ruled that it was immaterial that the bottle itself, apart from its contents, was not sold by the defendant to the plaintiff. On appeal this ruling was challenged. Construing the findings below as indicating that the accident arose from a defective bottle rather than from the contents, and that there was no sale of the bottle, the Court of Appeal upheld the ruling of the trial judge. It was said by Bray, J., 'In this case there was only one contract--namely, a contract between the plaintiff and the defendant that the plaintiff should be supplied with mineral waters. Mineral waters could not be supplied except in bottles, and therefore the plaintiff was asking to be supplied with mineral waters in bottles. That undoubtedly is a contract of sale, and I will assume that in that contract there might be a condition...