Hamon v. Digliani

• Decision Date: 03 October 1961
• Citation: 174 A.2d 294,148 Conn. 710
• Court: Connecticut Supreme Court
• Parties: Elizabeth HAMON et al. v. Patsy T. DIGLIANI et al. Supreme Court of Errors of Connecticut

Page 294

174 A.2d 294

148 Conn. 710

Elizabeth HAMON et al. v. Patsy T. DIGLIANI et al.

Supreme Court of Errors of Connecticut.

Oct. 3, 1961.

John F. Phelan, Waterbury, for appellant (named plaintiff).

Kevin T. Gormley, New Haven, with whom, on the brief, was Martin E. Gormley, New Haven, for appellees (defendants Lestoil Corp. and others).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and BORDON, JJ.

MURPHY, Associate Justice.

The named plaintiff, alleging that she was severely burned and otherwise injured when the contents of a bottle of Lestoil, a household detergent, spilled on her, brought suit against the named defendant, a retail storekeeper from whom she had purchased it, and against Lestoil Corporation and the Adell Chemical Company, the manufacturers of the product, hereinafter referred to as the defendants, to recover damages for the injuries allegedly sustained. In the second count of her complaint, she alleged that the defendants had extensively promoted Lestoil by radio, television, newspaper and other advertising which impliedly warranted that it could be used safely for household and other cleaning tasks and also expressly warranted that it was 'the all-purpose detergent--for all household cleaning and laundering.' She further alleged that she purchased a bottle of Lestoil in reliance on the claims made in the advertisements; that the bottle had been sealed, capped and packaged by the defendants that the product was not as warranted; that some of it spilled on her, causing her injuries; and that the defendants committed a breach of both the express and the implied warranties. The defendants demurred to this count on the sole ground that no privity of contract nor any sale between them and the named plaintiff, hereinafter called the plaintiff, was alleged. The court sustained the demurrer. Judgment was rendered for the defendants on the second count, and the plaintiff has appealed.

In other counts of the complaint, the plaintiff seeks recovery from the retailer for breach of express and implied warranties, and from the retailer and the defendants for negligence. As these counts are not affected by the judgment on the demurrer, they remain to be tried when issue is joined. The plaintiff, by her appeal, is endeavoring to change the rule, which has existed in this state at least since Welshausen v. Charles Parker Co., 83 Conn. 231, 76 A. 271, that in order to sustain an action for breach of express or implied warranty there has to be evidence of a contract between the parties, for without a contract there could be no warranty. We held in that case (83 Conn. at page 233, 76 A. 271,) that the ultimate purchaser, or subvendee, of a gun manufactured by the defendant had no cause of action for breach of warranty against the manufacturer, with whom he had not dealt directly, but who had sold the gun to a dealer, who in turn sold it to a third party, from whom the plaintiff purchased it. The rule was reiterated in Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 96, 3 A.2d 224, 225, wherein we quoted from Gearing v. Berkson, 223 Mass. 257, 260, 111 N.E. 785, L.R.A.1961D, 1006, as follows: 'The implied warranty, or to speak more accurately the implied condition of the contract, to supply an article fit for the purpose required, is in the nature of a contract of personal indemnity with the original purchaser. It does not 'run with the goods." As we understand the argument advanced by the plaintiff, it is that, despite the lack of a sale directly from the manufacturer, the consumer should have a right of action against the manufacturer for breach of express or implied warranty where the consumer, in reliance on the representations made by the manufacturer, purchases a sealed container of the manufacturer's product from a retailer and sustains injury as the result of the use of the product in the manner intended.

Within recent years, numerous cases have arisen in other jurisdictions in which the courts have extended breach of warranty law to encompass a right of action against the manufacturer for breach of either an express or an implied warranty of his product and have eliminated privity of contract as an element essential to recovery. Dean Prosser, in an extensive review of the cases and trends in this regard, points out that the privity requirement was abolished by judicial fiat in cases involving the sale of food and that since 1934 thirteen jurisdictions have applied against the manufacturer a rule of strict liability for statements which prove to be false, if they were made to the public in labels on the goods or in the manufacturer's advertising or disseminated literature and it can be found that the plaintiff relied on the statements in making his purchase. Prosser, 'The Assault upon the Citadel (Strict Liability to the Consumer),' 69 Yale L.J. 1099, 1124, 1135. The citations of the cases and the names of the products concerned may be found in footnotes 212, 213 and 214 of the article. Id., 1135, 1136. Since its publication, the Court of Appeals of New York, in Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773, has ruled in a food case that lack of privity did not bar recovery by a child when the food had not been purchased by her but by her father. As, in Connecticut, the protection of the implied warranty of fitness of food and drink extended, under General Statutes § 42-16 (repealed, Public Acts 1959, No. 133, § 10-102; see §§ 42a-2-315, 42a-2-318), to all persons for whom the purchase was intended, the New York case has no particular bearing on the questions before us. It does, however, indicate an extension of the rule in a jurisdiction which lacked such a statute. Also, the opinion states (9 N.Y.2d at page 199, 213 N.Y.S.2d 39, 173 N.E.2d 773) that about twenty states have abolished the requirements of privity, the latest being Virginia and New Jersey.

The Virginia case, Swift & Co. v. Wells, 201 Va. 213, 110 S.E.2d 203, was a suit by a consumer who became ill as the result of eating a meat product which had been processed and packaged by the packer and was purchased from a retail market. The court held that a manufacturer of food who sells it in sealed containers or packages to a retailer, who in turn sells it to a consumer, who becomes ill from impurities in the food upon eating it, is liable to the consumer for a breach of an implied warranty of wholesomeness, irrespective of the lack of privity between the parties. Id., 201 Va. 221, 110 S.E.2d 203. The New Jersey case, Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1, involved an automobile sold by a dealer to Claus Henningsen. His wife sustained injuries while driving it when defects in the steering mechanism caused it to veer into a brick wall. She instituted suit against the dealer and the manufacturer and recovered against both for breach of an implied warranty of merchantability, despite the limited extent of the express warranty by the manufacturer that it would replace a defective part within ninety days after the sale or until the car had been driven 4000 miles, whichever occurred first, if the part was returned to the factory, and despite the disclaimer of liability by the manufacturer on that basis. Id., 32 N.J. 384, 404, 161 A.2d 69. The New Jersey case held that the implied warranty of merchantability chargeable to either the manufacturer or the dealer extends to the purchaser, the members of his family, and other persons who use the automobile with the owner's consent. Id., 32 N.J. 414, 161 A.2d 69. An annotation on this subject is to be found in 75 A.L.R.2d 39.

The representation made by a manufacturer on the packages of its detergent was held to be a warranty to the ultimate consumer in Worley v. Proctor & Gamble Mfg. Co., 241 Mo.App. 1114, 1122, 253 S.W.2d 532,...