Hochgertel v. Canada Dry Corp.

• Decision Date: 21 January 1963
• Citation: 409 Pa. 610,187 A.2d 575
• Parties: , 1 UCC Rep.Serv. 130 George F. HOCHGERTEL, Appellant, v. CANADA DRY CORPORATION, a Corporation.
• Court: Pennsylvania Supreme Court

Page 575

187 A.2d 575

409 Pa. 610, 1 UCC Rep.Serv. 130

George F. HOCHGERTEL, Appellant, v. CANADA DRY CORPORATION, a Corporation.

Supreme Court of Pennsylvania.

Jan. 21, 1963.

Norman Paul Wolken, Norman Landy, Wolken & Landy, Pittsburgh, for appellant.

Pringle, Bredin & Martin, Norman J. Cowie, Pittsburgh, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and KEIM, JJ.

EAGEN, Justice.

The plaintiff, a bartender on duty in the clubhouse quarters of a fraternal organization, was injured by flying glass fragments, when an unopened bottle of carbonated soda water exploded as it was standing on the counter behind the bar. The soda water was previously bottled, sold and delivered by the defendant to plaintiff's employer. The plaintiff sued the defendant bottler manufacturer in assumpsit, charging a breach of implied warranties, namely: (1) That the soda water was of merchantable quality; (2) That it was fit and safe for the purposes for which it was sold. ¹ The court below sustained preliminary objections to the complaint in the nature of a demurrer. This appeal followed, challenging the legal correctness of this order.

There is no doubt that when the defendant manufacturer sold the bottle of soda water to the fraternal lodge involved, it impliedly warranted to the purchaser that the contents of the bottle were fit for the purposes intended. See, Bonenberger v. Pittsburgh Mer. Co., 345 Pa. 559, 28 A.2d 913, 143 A.L.R. 1417 (1942); Loch v. Confair, 361 Pa. 158, 63 A.2d 24 (1949).

Two interesting questions are posed by this appeal: (1) Did this implied warranty extend to the plaintiff, an employee of the purchaser? (2) Did the warranty cover the container as well as the contents of the bottle? Our answer to the first question is determinative of the case.

Pennsylvania was the first state to adopt the Uniform Commercial Code (Code). See, Act of April 6, 1953, P.L. 3, as amended, 12A P.S. § 1-101 et seq. Clearly the Code gives no basis for the extension of the existing warranty to an employee of the purchaser. The pertinent provision, Section 2-318, is as follows:

'A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.'

Comment 2, which follows this provision of the Code states:

'The purpose of this section is to give the buyer's family, household and guests the benefit of the same warranty which the buyer received in the contract of sale, thereby freeing any such beneficiaries from any technical rules as to 'privity.' It seeks to accomplish this purpose without any derogation of any right or remedy resting on negligence. It rests primarily upon the merchant-seller's warranty under this Article that the goods sold are merchantable and fit for the ordinary purposes for which such goods are used rather than the warranty of fitness for a particular purpose. Implicit in this section is that any beneficiary of a [breach of] warranty may bring a direct action for breach of warranty against the seller whose warranty extends to him.'

Comment 3 then states:

'This section expressly includes as beneficiaries within its provisions the family, household, and guests of the purchaser. Beyond this, the section is neutral and is not intended to enlarge or restrict the developing case law on whether the seller's warranties, given to his buyer who resells, extend to other persons in the distributive chain.'

It is clear from the language used that in order to qualify as a person (not a buyer), who is within the protection of the warranty, one must be a member of the buyer's family, his household or a guest in his home. An employee is definitely in none of these categories. ² For the meaning of the words, 'family' and 'household' see, Way Estate, 379 Pa. 421, 109 A.2d 164 (1954) and Shank Estate, 399 Pa. 656, 161 A.2d 47 (1960).

Under the Statutory Construction Act of May 28, 1937, P.L. 1019, 46 P.S. § 533, words and phrases must be construed according to their common approved usage. Further, it is not for us to legislate or by interpretation to add to legislation, matters which the legislature saw fit not to include. Altieri v. Allentown, etc., Retirement Board, 368 Pa. 176, 81 A.2d 884 (1951), and Commonwealth of Pennsylvania ex rel. Fox v. Swing, 409 Pa. 241, 186 A.2d 24 (1962).

Since the Code was not intended to restrict the case law in this field (see, § 2-318, Comment 3, supra), a study of pertinent Pennsylvania authorities is also necessary for the purposes of this decision.

The general rule in the United States is that the mere resale of a warranted article does not give a subpurchaser the right to sue the manufacturer in assumpsit, on the basis of breach of warranty, for damages incurred by him due to a defect in the quality of the goods. Pennsylvania decisions are in accord with this general proposition. The warranty is personal to the immediate or original buyer, and he alone may avail himself of the benefit thereof. This limitation is based on the rule of privity of contract. See, Williston, Sales, § 244, and 77 C.J.S. Sales § 305.

However, nearly a third of the American jurisdictions, including Pennsylvania, have broken away from the rule of 'privity of contract' in cases involving food, beverages and like goods for human consumption, and have for various stated reasons permitted a subpurchaser to sue the manufacturer directly in assumpsit for breach of an implied warranty that the food was wholesome and fit to eat. See, Prosser, Torts, Ch. 17, § 84 (2d ed. 1955); Nock v. Coca Cola Bot. Wks. of Pgh., 102 Pa.Super. 515, 156 A. 537 (1931); Catani v. Swift & Co., 251 Pa. 52, 95 A. 931, L.R.A.1917B, 1272 (1915).

A close study of Nock and Catani, supra, will disclose that the courts did not therein outrightly reject the 'privity of contract' rule, but extended the obligation of the manufacturer to the subpurchaser in such instances upon the basis of the demands of 'social justice.' Regardless of the...