Kroger Grocery Co. v. Lewelling

• Decision Date: 30 January 1933
• Docket Number: 30301
• Citation: 165 Miss. 71,145 So. 726
• Court: Mississippi Supreme Court
• Parties: KROGER GROCERY CO. v. LEWELLING et al

145 So. 726

165 Miss. 71

KROGER GROCERY CO. v. LEWELLING et al

No. 30301

Supreme Court of Mississippi

January 30, 1933

Division B

1 SALES.

Manufacturer bottler, or packer of foods or beverages for immediate human consumption is bound by implied warranty of wholesomeness running to consumer.

2 SALES.

Retail seller of canned food in original package for immediate human consumption, purchased by seller from reliable packer without negligence and without reason to suspect defect, held not liable to consumer on implied warranty of fitness and purity.

Suggestion Of Error Overruled February 27, 1933.

APPEAL from circuit court of Tallahatchie county.

HON. J. F. DEAN, Special Judge.

Action by Mary S. Lewelling and another against the Kroger Grocery Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed and case dismissed.

Reversed and dismissed.

Caldwell & Caldwell, of Charleston, and Bates, Shea & Frazer, of Memphis, Tenn., for appellant.

There is no implied warranty in case of food sold for consumption by animals.

Luke v. Freund, 27 Kan. 664, 51 Am. Rep. 429; National Cotton Oil Company v. Young, 85 S.W. 92.

The operator of a butcher shop and smoke house impliedly warrants the quality of meat prepared and sold by him.

Craft v. Parker, 55 N.W. 812; Weideman v. Keller, 49 N.E. 210; Rinaldi v. Mohican Company, 121 N.E. 471; Farrell v. Manhatttan Market Co., 81 N.E. 481; Van Bracklin v. Fondra, 7 Am. Dec. 339.

The manufacturer or packer of food sold for human consumption impliedly warrants its fitness for such use.

Ketterer v. Armour, 247 F. 921; Nelson v. Armour Packing Company, 90 S.W. 288; Cutarri v. Swift Co., 95 A. 931; Watson v. Augusta Brewing Co. , 1 L.R.A. 1178; Doyle v. Fuerst, 56 So. 908.

A druggist who manufactures ice cream is liable.

Race v. Krum, 118 N.E. 853.

Where a defendant prepares meats, salads and food stuffs, he is liable on an implied warranty to those who suffer by reason of eating the same.

Walters v. United Grocery Co., 172 P. 473.

A country merchant, negligently allowed rat poison "Rough on Rats" to become mixed with his flour, as a result of which several of his tenant farmers were injured is liable.

Patty Barfield v. Heinman, 207 S.W. 58.

Some states where the Uniform Sales Act has been adopted, hold a retailer liable on implied warranty of a sealed package on account of the provisions of said act.

Griffin v. James Butler Grocery Company, 156 A. 636; Ward v. Great Atlantic & Pacific Tea Company, 120 N.E. 225.

A person contracting to serve meals impliedly warrants the purity of the food prepared and served by him, or his agents.

Malone v. Jones L.R.A. 1915-A, 328; Bishop v. Weber, 52 Am. Rep. 715.

In the case of the sale of canned merchandise the consumer and not the retailer is the one who has an opportunity to determine the condition of the article. The very manner in which the article is sold, to-wit, in the sealed cans, is determinative that the retailer has no opportunity of inspection.

The common-law rule on the subject of implied warranty of quality or fitness was stated, and the cases were classified by Mellor, Justice in delivering the judgment of the Queen's Bench in Jones v. Just, giving this as a result: The cases may, we think, be classified as follows: First where goods are in esse and may be inspected by the buyer, and there is no fraud on the part of the seller the maxim caveat emptor applies, even though the defect in them is latent, and not discoverable on examination, at least where the seller is neither the grower nor the manufacturer.

Benjamin on Sales (6 Ed.), page 713.

The sealed package doctrine is recognized.

Meacham in Section 1347, note 1.

A retailer of canned foods is not liable for defects therein.

Julien v. Laubenberger, 38 N.Y.S. 1052; Trafton v. Davis, 86 A. 179; Fleetwood v. Swift & Co., 107 S.E. 909; Bell v. Bowers Stores, 3 Tenn.App. 590; Jackson Coca Cola Co. v. Grubbs, 143 Miss. 590, 108 So. 583.

Prima facie, then, when an aritcle is sealed and placed on the market for human consumption, it is as though the consumer had bought it directly from the manufacturer.

Curtiss Candy Company v. Johnson, 141 So. 764.

It would seem passing strange that after all these years of litigation in this state involving the canning, bottling and packing of goods and drinks no lawyer had discovered that a dealer was liable on an implied warranty until the appellees in this case found and ate a worm in a can of tomatoes. Can it be that astute and learned lawyers who have been deterred from bringing suits because they could not get jurisdiction (as they understood, the law to be) because manufacturers or bottlers lived elsewhere than in the county where the goods were sold have been mistaken in their interpretation of the law as to the liability of the dealers in such cases?

While there is authority to the contrary, it comports better with justice to hold that where a dealer sells to his customer an article in the original package in which it is put up by the manufacturer, and the customer knows as much about the article as the dealer, there is no implied warranty although the dealer knows that the customer buys it for food. No rule of law should imply a warranty of that which is impossible for a defendant to know by the exercise of any skill industry or investigation, however great. In other word neither law nor reason should require impossibilities.

11 R. C. L. 1124.

A railroad company operating its own dining cars is not liable for injury to a patron by partaking of canned food served in regular course upon the car, where the food was purchased from a reputable dealer and bore a well known brand, etc., and there was nothing in its appearance to indicate it was not fit for food.

Bigelow v. Maine Central R. R. Co., 43 L.R.A. (N.S.) 627.

A distributor is not liable on implied warranty for imperfections in a plug of tobacco.

Pillars v. Reynolds Tobacco Co., 117 Miss. 490.

Under the common-law rule long in force in this state, the warranty of merchantable quality was limited to sales by a manufacturer or grower.

Ryan v. Progressive Grocery Stores, 225 N.Y. 388, 175 N.E. 105, 74 L.R.A. 339.

A retail dealer of soap liable to a consumer for an injury by a needle imbedded in a cake of soap by the manufacturer, where he did not know of its presence, which could not have been ascertained by him in the exercise of ordinary care.

Hasbrouck v. Armour & Co., 23 L.R.A. (N.S.) 876, 121 N.W. 157.

A retailer purchasing from a reputable manufacturer or dealer, without imperfections discoverable in the exercise of ordinary care, by persons skilled and experienced in dealing and supplying goods to general public, is not liable to a customer on implied warranty.

Dothan Chero-Cola Bottling Co. v. Weeks, 80 So. 834.

A retailer is not liable on a breach of implied warranty on an article sold in the ordinary course of trade, where he did not manufacture same and where there was no allegation that retailer had any knowledge that the article was infected.

Kress v. Lindsey, 13 A.L.R. 1170.

There is a well defined line of cases that holds that retail dealers in selling canned goods for immediate use are not liable, unless they can be charged with negligence in the purchase of food, or with knowledge that the contents were unfit for consumption. These cases are determined upon the well recognized fact that the dealer is not the manufacturer of the goods sold, is not in a position to know the contents better than the purchaser, neither the purchaser nor the vendor having had any opportunity to examine and know the condition of the goods contained in the cans sold.

Tomlinson v. Armour, 19 L.R.A. (N.S.) 923; Julian v. Laubenberger, 16 Misc. 648, 38 N.Y.S. 1055; Mazzetti v. Armour, 74 Wash. 622, 48 L.R.A. (N.S.) 213.

Where a dealer sells an article of merchandise in the original package as it comes from the manufacturer, and the customer buys it knowing that there has been no inspection by the dealer, there is no implied warranty, and, in the absence of an express warranty or representation, such dealer is not liable to the purchaser for damages caused by any deleterious substance in such merchandise the presence of which he had no knowledge.

McMurray v. Vaughn's Feed Store, 157 N.E. 567.

A wholesale dealer who buys a standard paint drier in the open market without knowledge that it is explosive or inflammable if used with ordinary care is not bound to ascertain its qualities or warn customers of possible danger in its use, or liable to one for injury by an explosive when he attempts to transfer it from one receptacle to another by artificial light.

Peaslee-Gaulbert Co. v. McMath, 39 L.R.A. (N.S.) 564.

Jas. Stone & Sons, of Oxford, for appellee.

It has been well settled in Mississippi that there is no implied warranty under the law of the soundness or wholesomeness in the sale, either by retailer or manufacturer, of food for animals.

Dulaney v. Jones & Rogers, 100 Miss. 835; Dunnagin Whitaker Co. v. Montgomery, 117 Miss. 666, 78 So. 580; Royal Feed & Milling Co. v. Thorn, 142 Miss. 92, 107 So. 282.

The manufacturer is liable to the ultimate consumer for damage resulting from defects and impurities of the manufactured article which consisted of foods, beverages, drugs, condiments and confections, to be taken into the human stomach, on the grounds of negligent preparation of such article; and likewise held a distributor of such article not negligent where he had no cause to inspect or know of such defects or impurities.

Pillars v. R. J. Reynolds Tobacco Co. et al., 117 Miss. 490, 78 So. 365.

Where a person warrants the soundness of his products to a dealer under an express...