Henry v. John W. Eshelman and Sons

• Decision Date: 13 April 1965
• Docket Number: No. 10687,10687
• Citation: 99 R.I. 518,209 A.2d 46
• Parties: , 2 UCC Rep.Serv. 697 Grace E. HENRY et al. d. b. a. Henry's Poultry Farm v. JOHN W. ESHELMAN & SONS. Ex.
• Court: Rhode Island Supreme Court

Page 46

209 A.2d 46

99 R.I. 518, 2 UCC Rep.Serv. 697

Grace E. HENRY et al. d. b. a. Henry's Poultry Farm v. JOHN W. ESHELMAN & SONS.

Ex. No. 10687.

Supreme Court of Rhode Island.

April 13, 1965.

Zietz, Sonkin & Radin, James Radin, Providence, for plaintiffs.

Francis V. Reynolds, Leonard A. Kiernan, Jr., Providence, for defendant.

CONDON, Chief Justice.

This action of assumpsit for breach of warranty is here on the plaintiffs' exception to a decision of a justice of the superior court sustaining the defendant's demurrer to the plaintiffs' declaration on the ground of failure to allege facts therein sufficient to establish privity of contract between them and the defendant.

The declaration is in two counts each sounding in contract. It is alleged therein that 'Plaintiffs have a just claim against the Defendant, which is due and owing, including interest thereon, and which claim the Defendant, although often requested, has refused to pay.' The plaintiffs predicate such claim on the following alleged facts. The plaintiffs are poultry farmers. During December 1962, January, February and March, 1963, they raised large numbers of live chickens, and fed them poultry feeds purchased exclusively from Albert L. Matteson, a local feed dealer. Such feeds were manufactured and packaged in sealed bags by defendant intending them to be sold to the general public for consumption by chickens only. For such sale to the public, defendant impliedly warranted that the feeds were of merchantable quality and reasonably safe and suitable for the intended purpose. The feeds purchased by plaintiffs were not of such quality and prevented their chickens from receiving 'a nutritionally balanced ration essential for the proper raising' of live chickens for the production of table eggs.

On the facts alleged in each count there is clearly no privity between plaintiffs and defendant. The plaintiffs concede this but contend that privity in a case of his kind is not a prerequisite to the maintenance of an action against a manufacturer of a food product packaged in a sealed container and sold to a retailer for purpose of resale to the general public. In such a case they contend that the law implies a warranty that the product is merchantable and fit for the purpose intended and that such warranty follows the sale of the product into the hands of the ultimate consumer.

In sustaining the demurrer the trial justice rejected such contention and held that under the law in this state as decided in Lombardi v. California Packing Sales Co., 83 R.I. 51, 112 A.2d 701, and reaffirmed in Wolf v. S. H. Wintman Co., 87 R.I. 156, 139 A.2d 84, a consumer could not sue the manufacturer directly in assumpsit on such an implied warranty without alleging privity. The plaintiffs admit that such is the decisional law and that if this court adheres to it in the present instance their bill of exceptions must be overruled and the superior court's decision on the demurrer affirmed.

However, because it is decisional law and not of legislative creation they argue that such decisions may and should be overruled since they are based upon an erroneous idea that the implied warranty relied upon here is a contractual concept whereas it is actually tortious in nature. Hence they urge us to overrule Lombardi and Wolf and join the current of modern authorities which hold to the contrary, citing among other cases: Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 75 A.L.R.2d 103; Freeman v. Navarre, 47 Wash.2d 760, 289 P.2d 1015; Picker X-Ray Corp. v. General Motors Corp., D.C.Munn.App., 185 A.2d 919; Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773; Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1; Graham v. Bottenfield's, Inc., 176 Kan. 68, 269 P.2d 413; Rupp v. Norton Coca-Cola Bottling Co., 187 Kan. 390, 357 P.2d 802; Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81; and also 1 Frumer and Friedman, Products Liability, § 16.03, p. 378.

A like contention was made by the plaintiffs in Lombardi and a number of similar cases from various jurisdictions were cited in support thereof. In the course of our opinion in that case we discussed these cases and concluded not to follow them for any of the variant reasons which led them to hold as they did. We said at page 57 of 83 R.I., at page 704 of 112 A.2d:

'In our judgment these cases use different approaches but in general strain for a beneficial result by declaring the existence of some form of a continuing implied warranty that inures to any consumer as a matter of public policy. But it seems to us that ordinarily the declaration of such a public policy is a function of the legislature and not of the court. It may well be that the statute here should be amended to conform more effectively to the advance or change in methods of purveying food in original sealed containers. But where, as here, the existing statute does not modify the common law so as to permit an action in assumpsit without privity, and where, unlike many of the twelve states referred to, actions of contract and tort are treated separately, each having a different form of action and statute of limitation and possibly different rules governing damages, we ought not to resort to judicial legislation, at least where no emergency or extreme conditions exist.'

Three years later we were urged in Wolf v. S. H. Wintman Co., supra, to discard the privity of contract theory and overrule Lombardi. We declined to do so and again expressed the opinion that if such a change was to be made in the law the legislature should make it and not the court. But plaintiffs remind us that since this is our decisional law it may and should be changed by decision if a change in the conditions and circumstances of distributing products reasonable requires a change in the policy of the law.

Ordinarily there may be merit in that contention but in the present posture we think it lacks merit for the following reason. A decade has passed since we declared in Lombardi that if any change in the law was to be made from consideration of public policy the legislature should make it. During that period the legislature has met in annual sessions and has not seen fit to alter in any way the policy of the law underlying that decision notwithstanding its attention was again called to the continuing criticism of such policy manifested in Wolf.

Such long acquiescence in decisional law by the legislature, especially after its attention has been called to repeated litigious criticism of its underlying policy, is persuasive proof of at least implied legislative approval of the decisions. St. Germain v. Lapp, 72 R.I. 42, 48 A.2d 181, 166 A.L.R., 450. In this connection it is interesting to note that in some of the recent cases where the courts have overruled prior precedents and discarded entirely the privity of contract doctrine they have done so only after strong dissents or limiting concurring opinions. Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.W.2d 399; Greenberg v Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 273 N.E.2d 773; Freeman v. Navarre, 47 Wash.2d 760, 289 P.2d 1015; Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 75 A.L.R.2d 103; Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81.

In Randy Knitwear the New York court was closely divided 4 to 3. The majority flatly held 'that the old court-made rule should be modified to dispense with the requirement of privity * * *.' The minority categorically refused to subscribe to that holding. 'We do not agree,' they said, 'that the so-called 'old court-made rule' should be modified to dispense with the requirement of privity without limitation.'

And in Greenberg, Froessel, J., although concurring said: 'This is an action in contract based on a statute * * *, not for negligence, and it is basic law that unless privity exists there can be no warranty, and where there is no warranty there can be no breach. We may not convert an action in contract into what really amounts to an action in tort. However much one may think liability should be broadened, that must be left to the Legislature.'

In Goldberg, the New York court was again closely divided 4 to 3, the minority complaining that the majority went too far in equating warranty with the theory of strict liability. They said, 12 N.Y.2d at page 439, 240 N.Y.S.2d at page 597, 191 N.E.2d at page 85: 'Most scholars who have considered this question acknowledge that the warranty rationale is at best a useful fiction. * * * If a strict products or enterprise liability is to be imposed here, this court cannot escape the responsibility of justifying it. We cannot accept the implication of the majority that the difference between warranty and strict products liability is merely one of phrasing.'

In Rogers v. Toni Home Permanent Co., the Ohio supreme court was closely divided 4 to 3 on discarding entirely the privity of contract theory. And in Freeman v. Navarre, the Washington supreme court was likewise divided. The action there was based on counts in negligence and breach of warranty. The majority held recovery could be had on either ground. The minority disagreed holding on the facts there was no showing of privity of contract and therefore there could be no warranty.

In our opinion these recent cases do not add any strength to the rationale underlying the opinions in the earlier cases which we discussed in Lombardi and found lacking in cogency necessary to convince us to follow them. We must note as we did in Lombardi that the immediate issue here is one of proper pleading in an action of assumpsit. Under this action the plaintiff cannot rely on any theory that breach of warranty is tortious in nature. With us...