Lasky v. Economy Grocery Stores

• Decision Date: 28 February 1946
• Citation: 319 Mass. 224,65 N.E.2d 305
• Parties: LASKY et al. v. ECONOMY GROCERY STORES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 224

65 N.E.2d 305

LASKY et al.

v.ECONOMY GROCERY STORES.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1946.

Exceptions from Superior Court, Suffolk County; Dowd, Judge.

Action of tort by Mary F. Lasky and another against the Economy Grocery Stores for personal injuries sustained by named plaintiff in the explosion of a bottle of carbonated beverage. Verdict for plaintiffs, and defendant brings exceptions.

Exceptions sustained, and judgment for defendant.

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and SPALDING, JJ.

C. J. Dunn, of Boston, and J. W. Cussen, of Dorchester, for plaintiffs.

J. P. Sullivan and A. F. Bickford, both of Boston, for defendant.

RONAN, Justice.

This is an action of tort to recover damages for personal injuries sustained by Mary F. Lasky, hereinafter called the plaintiff, from the explosion of a bottle of a carbonated beverage described as ‘tonic’ that she had taken from one of several wooden cases which had been set up in the defendant's store for the purpose of sale to customers who were willing to serve themselves by selecting the bottles they wish to purchase and by paying for them as they left the store. The plaintiff had a verdict upon a count in the declaration alleging a breach of an implied warranty of fitness of a bottle of tonic supplied to her by the defendant under a contract of sale, and upon another count alleging a breach of an implied warranty of merchantability of a bottle of tonic furnished to her by the defendant in accordance with a contract of purchase and sale of the said bottle. The defendant excepted to the denial of its motion for a directed verdict on each count.

The jury could find the facts herein recited. A customer enters the defendant's store through a turnstile, where he obtains a carrier equipped with a basket in which he places the articles he selects as he pushes the carrier along by the counters. The goods are displayed with the prices on them. Signs are posted advising the customers to serve themselves. A customer, as he goes through the store, selects whatever articles he desires, and he is free to return any article he has selected to the place from which he took it. After he has finally selected the goods that he wishes to purchase, he pushes the carrier to the cashier's counter where the goods are taken out of the basket, inspected, checked and put in bags. The total price is ascertained by the cashier, and is paid by the customer. The plaintiff was familiar with the method of purchasing goods at the defendant's store. She had never been told by a cashier that she could not have as many articles as she wanted, but ‘it had been her experience in going in these stores to have gone around and seen something she liked and put it in the carrier and then later to go back and put it on the shelves; * * * until a customer got up to the cashier's cage, with the exception of the meat department, you were on your own so to speak.’ She knew that it was necessary to pay for the goods before she left the store, and she intended to pay when she arrived at the cashier's desk. The plaintiff desired to purchase six bottles of tonic, and after she had put some of the bottles in the basket, and while she was taking another bottle from the case but before she had an opportunity to place this bottle in the basket, it exploded, severely injuring her.

The plaintiff in order to recover must prove that, at the time of the injury, she had entered into a contract with the defendant for the sale of the tonic to her, and that under the contract to sell the defendant had assumed an obligation to see that the goods were reasonably fit for the use intended to be made of them by the plaintiff or had assumed an obligation to see that the goods were of merchantable quality for goods of that description. The question here is whether the evidence is sufficient to prove that either obligation had been undertaken by the defendant.

The defendant's method of doing business differs from that usually employed in retail stores, where a clerk furnishes the customer with the goods requested and the latter completes the transaction by paying the price. In these cash sales over the counter, the delivery of the goods, the passing of the title and the payment of the price all occur at substantially the same time. No executory contract is involved in the transaction. The defendant makes only cash sales, but all these sales must be made at the cashier's counter. The system in vogue at the defendant's store requires the customer to select and collect the goods he desires to purchase and to convey them to the only person who can sell them to him. This system, undoubtedly, requires the performance by the customer of certain acts before he can...