Lombardi v. California Packing Sales Co.

• Decision Date: 01 April 1955
• Docket Number: 9538,Nos. 9537,s. 9537
• Citation: 112 A.2d 701,83 R.I. 51
• Parties: Alexander LOMBARDI v. CALIFORNIA PACKING SALES COMPANY. Frances LOMBARDI v. CALIFORNIA PACKING SALES COMPANY.
• Court: Rhode Island Supreme Court

Page 701

112 A.2d 701

83 R.I. 51

Alexander LOMBARDI v. CALIFORNIA PACKING SALES COMPANY.

Frances LOMBARDI v. CALIFORNIA PACKING SALES COMPANY.

Nos. 9537, 9538.

Supreme Court of Rhode Island.

April 1, 1955.

Robert N. Greene, Providence, for plaintiffs.

Edwards & Angell, Knight Edwards, Providence, for defendant.

FLYNN, Chief Justice.

These two actions in assumpsit were brought by a husband and wife respectively to recover damages from a wholesaler upon its alleged breach of an implied warranty in relation to certain apricot juice which it had distributed in an original sealed container to a retailer and which was bought and consumed by the plaintiff wife. In the superior court a justice thereof sustained the defendant's substantial demurrer to the second amended declaration and each case is here on the plaintiff's exception to such ruling.

The declarations in both cases are essentially the same with the exception that the husband bases his case for consequential damages on the wife's right to recover for injuries caused by her consumption of the juice in question. The wife's declaration alleges in substance that defendant was a wholesaler of canned apricot juice which was prepared and packaged by another in sealed containers or cans; that as agent or representative of such packer the defendant sold the juice in such original sealed containers to a retailer from whom she purchased a can; that there was no opportunity for her to inspect the contents; that defendant knew and intended that the juice it sold to the retailer was to be resold to consumers; and that in distributing the juice so packed in sealed containers there was an implied warranty by the wholesaler to any purchaser that the contents were fit for human consumption. It is further alleged that the can purchased by the wife contained some deleterious or poisonous substance; that as a result of consuming the juice she became ill and suffered greatly in her health, nervous system, mind and body; and that she lost compensation from her occupation and required medical attention.

The defendant demurred to the amended declaration in each case on nine grounds. After a hearing thereon a justice of the superior court sustained the demurrer on certain of these grounds which read as follows:

'3. It does not appear from said declaration that the plaintiff entered into any contractual relationship whatsoever with the defendant;

'4. It does not appear from said declaration that the defendant made any promise or promises to the plaintiff;

'5. It does not appear from said declaration that the defendant made any warranty or warranties to the plaintiff;

'6. It does not appear from said declaration that any implied warranty or warranties running from the defendant to the plaintiff arose from the facts as set forth therein;

'7. It appears affirmatively from said declaration that plaintiff had no contractual relationship of any kind with the defendant * * *.'

In the circumstances we are not called upon to decide whether plaintiffs could bring a direct action of the case against a packer or one against a wholesaler based upon the violation of a duty arising out of an alleged implied representation in this particular type of sale of foodstuffs or drink. The controlling question here raised is merely one of pleading and is whether the plaintiff wife can recover damages in a direct action of assumpsit against a wholesaler on an alleged breach of an implied warranty of the fitness of the juice for human consumption, where she selected and purchased it from a retailer to whom it was sold by the wholesaler in the packer's original sealed container. In other words, can she bring such an action without alleging privity?

The case is conceded to be of novel impression in this state and no case precisely in point has been cited. In this jurisdiction the common law is followed, except in so far as it is modified by statute. At common law no recovery based upon a breach of implied warranty was possible in an action of assumpsit without first alleging and establishing privity of contract. See Pelletier v. Dupont, 124 Me. 269, 128 A. 186, 39 A.L.R. 972. See also 22 Am.Jur., Food, § 105, n. 17, and cases cited; 12 Am.Jur., Contracts, § 273; Dickerson's Products Liability and the Food Consumer, § 1.22, p. 63, §§ 2.1, 2.2, p. 93 et seq.

No statute in this state gives a right of action in assumpsit without that allegation. Indeed the allowance of such an action by the mere 'consumer' appears to be inconsistent in some respects with the express provisions of the sales act which appear to limit that right of action and recovery to the 'buyer' and 'seller' under the contract. General laws 1938, chapter 459, § 15(1), (2). Furthermore, the terms buyer and seller are clearly defined and they do not include a consumer regardless of privity.

The nearest reference in our cases to the subject sems to be contained in Minutilla v. Providence Ice Cream Co., 50 R.I. 43, 144 A. 884, 885, 63 A.L.R. 334. That was an action of trespass on the case for negligence of the manufacturer and the court held that a plaintiff could not recover in a single action in both contract and tort. In the course of the reasoning to support that conclusion on the ground they were different actions this court referred with approval to a Massachusetts case which held: 'cf. Newhall v. Ward Baking Co., 240 Mass. 434, 134 N.E. 625, there can be no warranty without privity of contract.'

That statement appears to be in harmony with the weight of authority on the subject. Although there are cases to the contrary, the basis for the rule of liability is founded generally in tort, and not in contract under an implied warranty of fitness. Smith v. Salem Coca-Cola Bottling Co., 92 N.H. 97, 25 A.2d 125; De Gouveia v. H. D. Lee Mercantile Co., 231 Mo.App. 447, 100 S.W.2d 336. See Pelletier v. Dupont, supra. See also 22 Am.Jur., Food, § 105, 12 Am.Jur., Contracts, § 273, and Dickerson's Products Liability and the Food Consumer, §§ 1.22, 2.1 and 2.2, supra, and...