Manzoni v. Detroit Coca-Cola Bottling Co., COCA-COLA

• Decision Date: 28 June 1961
• Docket Number: 24,Nos. 23,COCA-COLA,O,s. 23
• Citation: 109 N.W.2d 918,363 Mich. 235
• Parties: John MANZONI, Plaintiff and Appellee, v. DETROITBOTTLING COMPANY, a Michigan corporation, Defendant and Appellant. Theresa MANZONI, Plaintiff and Appellee, v. DETROITBOTTLING COMPANY, a Michigan corporation, Defendant and Appelleant. ct. Term.
• Court: Michigan Supreme Court

Page 918

109 N.W.2d 918

363 Mich. 235

John MANZONI, Plaintiff and Appellee, v. DETROIT COCA-COLA BOTTLING COMPANY, a Michigan corporation,

Defendant and Appellant.

Theresa MANZONI, Plaintiff and Appellee, v. DETROIT COCA-COLA BOTTLING COMPANY, a Michigan corporation,

Defendant and Appelleant.

Nos. 23, 24, Oct. Term.

Supreme Court of Michigan.

June 28, 1961.

Ward, Plunkett & Cooney, Detroit, for defendant and appellant.

Before the Entire bench.

SMITH, Justice.

The cases before us are upon implied warranty. One plaintiff is Theresa Manzoni. It is her claim that she was injured as a result of drinking Coca Cola in which something foreign was present. The other plaintiff, her husband, claims damages for medical expenses and loss of services. The cases were consolidated for trial and appeal.

In the store where the Coca Cola in question was purchased, some 4 or 5 days before it was consumed, it was set out on the floor, in cases stacked one on top of another, in fact, all over the place. A case was taken home by Mr. Manzoni and kept in a heated basement.

On the evening in question, after supper, Mrs. Manzoni took a bottle from the case, brought it upstairs, opened it in the kitchen, gave a little to her five-year-old daughter (who experienced no ill effects) and consumed the balance herself, in front of the television. As she drank it, 'it didn't taste right' but she finished it anyway. 'After it was gone,' she continued, 'I set the thing on the table. I didn't feel so good, so I went into the bathroom, and then I came out, and there was the coke setting on the table; it had that sticky thing stuck to the bottle, all brown and drity, * * * slimy looking like shreds of tobacco.' That, she says, is when she took sick (nausea and vomiting). She called her doctor, and the following day the bottle was turned over to a representative of the Detroit Board of Health for examination. Analysis disclosed the foreign substance: 'mold filaments and mold spores.'

At the trial, to a jury, it was shown that the wife had 'a nervous stomach' which, apparently, has not been quieted by this experience. The defendant, in turn, introduced evidence of its care in manufacture, and, in addition, that molds require oxygen for growth and that a bottle of Coca-Cola contains carbon dioxide rather than oxygen. In addition, evidence was introduced challenging, in effect, that Mrs. Manzoni's illness, or at least its persistence, was attributable to the foreign substance at all. It would serve no useful purpose to describe the whole spectrum of the evidence, pro and con. The jury heard it and brought in verdicts of $650 for the wife and $350 for the husband. The cases are before us on a general appeal.

Defendant urges 2 general arguments. The first has to do with the form of action. It runs something like this: Plaintiffs sued upon an implied warranty; there is 'no distinction between a count in implied warranty or in tort;' therefore 'the burden was upon the plaintiffs to show negligence,' and since they allegedly did not, they must fail.

The fallacy in what is urged is the assertion that there is no distinction between counts in warranty and in tort. Their similarity in the present context lies only in the fact that each is a remedy aimed at the liability of the manufacturer and that each may be grounded upon the presence of a deleterious or harmful substance (e. g., mouse, fly, snake, mold, animal or human organs or residue) in an article intended for human consumption. At this point, however, similarties end and distinctions take over. The warranty action, of ancient lineage, did not require a showing of negligence ¹ (though a showing of negligence, of course, did not defeat it) but it did require privity of contract. The negligence action, on the other hand, did not require privity but it did require that the plaintiff show a lack of due care with respect to the particular article, e. g., the bottle of Coca Cola in the present case. Either of these doctrines, literally applied, gave the manufacturer a virtual immunity. As for privity, the injured consumer and the manufacturer were contractual strangers, unless related by a fiction. As for negligence, the annual output of such bottles often ran into the millions. ² To show the negligence of the manufacturer with respect to any particular bottle was an impossibility.

Yet there was a problem here that required solution within the framework of modern commercial realities. At an earlier day, the day, in fact, when many of our precedents began to take form, commerce, as Llewellyn ³ puts it, was 'only one step removed from barter.' Sales were little more than neighborhood trades. The 'manufactured' article was a product of the local arts. It was made under the very eyes of the person who ultimately used it. That day is long over but the precedents linger. We need not trace the industrial development, the rise of the factor, the employment of agents and sellers far removed, the commercial necessity that the consumer's reliance be placed upon the product's name, or that of its maker, rather than upon his own inspection.

Today we have no barter, no simple village shop, no personal knowledge of the maker, of the source of his materials or of his methods of manufacture. Rather, rudely intruding upon the ancient precedents 'like a belligerant wife crashing in on an assignation with a hussy,' ⁴ we have the facts of modern trade and commerce, centralized manufacturing operations in strategic areas complemented by regional or nationwide distribution networks, accompanied by advertising and assurances of quality directly aimed at the ultimate consumers.

The result of the operation of these forces has been a marked change in legal theory on a wide front. The food and beverage area is but a small subdivision of a field much more comprehensive, involving the whole topic of products liability. ⁵ It ranges through areas both of contract and tort, from the liability of the manufacturer of a defective automobile wheel, ⁶ or cinder blocks ⁷ to that of the seller of an inflammable dress, ⁸ or the distributor of unwholesome food ⁹ or contaminated drink, ¹⁰ or even the purveyor of a caustic perfume. ¹¹

The Supreme Court of New Jersey has recently given this modern development exhaustive examination, concluding as follows: ¹²

'* * * The limitations of privity in contracts for the sale of goods developed their place in the law when marketing conditions were simple, when maker and buyer frequently met face to face on an equal bargaining plane and when many of the products were relatively uncomplicated and conductive to inspection by a buyer competent to evaluate their equality. See, Freezer, 'Manufacturer's Liability for Injuries Caused by His Products,' 37 Mich.L.Rev. 1 (1938). With the advent of mass marketing, the manufacturer became remote from the purchaser, sales were accomplished through intermediaries, and the demand for the product was created by advertising media. In such an economy it became obvious that the consumer was the person being cultivated. Manifestly, the connotation of 'consumer' was broader than that of 'buyer.' He signified such a person who, in the reasonable contemplation of the parties to the sale, might be expected to use the product. Thus, where the commodities sold are such that if defectively manufactured they will be dangerous to life or limb, then society's interests can only be protected by eliminating the requirement of privity between the maker and his dealers and the reasonably expected ultimate consumer. In that way the burden of losses consequent upon use of defective articles is borne by those who are in a position to either control the danger or make an equitable distribution of the losses when they do occur * * *.'

Thus the older and narrower doctrines have given way in response to the 'ever-growing pressure for protection of the consumer, coupled with a realization that liability would not unduly inhibit the enterprise of manufacturers and that they were well placed both to profit from its lessons and to distribute its burdens.' ¹³ As a result the requirement of privity has been abandoned outright in many jurisdictions rather than by the use of fictions, ¹⁴ thereby opening the door to the widespread use of the warranty theory.

In this State we permit recovery in this type of case 'either on a theory of negligence, or implied warranty.' ¹⁵ We have given the consumer, for reasons hereinabove set forth, this choice of remedies. We are not persuaded that we should now retract, and narrow his choice by holding that there is no difference between the two and thus he must prove negligence in every case. We are not ruling that no negligence was proved. We are holding that in a suit upon a warranty theory it is not necessary to show negligence, but rather breach of the implied warranty that the food is wholesome and fit for human consumption, and that 'such warranty is available to all who may suffer damage by reason of their use in the legitimate channels of trade.' ¹⁶

But, whether the theory employed is that of warranty or negligence, it must be shown, in an action against the manufacturer, that the offensive condition was present when the product left...