Mattes v. Coca Cola Bottling Co. of Miami

• Decision Date: 24 May 1974
• Docket Number: No. 73--295,73--295
• Citation: 311 So.2d 417
• Parties: Louise C. MATTES and Herman Mattes, Jr., Appellants, v. COCA COLA BOTTLING CO. OF MIAMI, and Food Fair Stores, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 417

311 So.2d 417

Louise C. MATTES and Herman Mattes, Jr., Appellants, v. COCA COLA BOTTLING CO. OF MIAMI, and Food Fair Stores, Inc., Appellees.

No. 73--295.

District Court of Appeal of Florida, Fourth District.

May 24, 1974.

Rehearing Denied Oct. 31, 1974.

William E. Blyler of Patterson Maloney & Shankweiler, Coral Springs, for appellants.

James A. Smith of Wicker Smith Pyszka Blomqvist & Davant, Miami, for appellee Coca Cola Bottling Co. of Miami.

PER CURIAM.

From a careful consideration of the record and from a review of the authorities cited in the briefs and oral argument of the parties we are of the opinion that plaintiff failed to demonstrate reversible error with respect to the trial court's granting of defendant's motion to strike plaintiff's allegation and claim under the theory of implied warranty. The record reflects the absence of testimony as to which bottle actually caused the injury to the plaintiff, i.e., the broken bottle was never identified as a 'coke' bottle. Moreover, the evidence was lacking in its failure to show that plaintiff's injury was caused by a Defective coke bottle; or that the coke bottle was a dangerous instrumentality so as to enable the plaintiff, who was a bystander (not a purchaser or user), to overcome the privity requirement in warranty. See Keller v. Eagle Army-Navy Department Stores, Inc., Fourth District Court of Appeal, 291 So.2d 58, opinion filed March 8, 1974; Matthews v. Lawnlite Company, Fla.1956, 88 So.2d 299; Toombs v. Fort Pierce Gas Company, Fla.1968, 208 So.2d 615; Reese v. Florida Coca-Cola Bottling Company, Fla.App.1972, 256 So.2d 392; Royal v. Black and Decker Manufacturing Company, Fla.App.1967, 205 So.2d 307.

Affirmed.

WALDEN, MAGER and DOWNEY, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Upon consideration of the appellants' petition for rehearing filed on June 10, 1974 directed to the opinion of this court dated May 24, 1974, this court is of the view that the petition for rehearing should be denied.

WALDEN and DOWNEY, JJ., concur.

MAGER, J., would grant rehearing.

MAGER, Judge (dissenting from denial of the rehearing).

With all due respect to my colleagues I would grant the appellants' petition for rehearing and withdraw the opinion of this court for the reasons hereinafter set forth.

The plaintiffs, Louise C. Mattes and Herman Mattes, Jr., appellants and petitioners herein, filed a complaint below seeking damages for injuries sustained by Mrs. Mattes allegedly as a result of an exploding Coca Cola bottle. The complaint alleged and evidence at trial reflected that Mrs. Mattes was shopping in the store of the defendant, Food Fair; she had gone to the Coca Cola display; removed a carton of Coca Cola from the top shelf; turned and walked a few steps away when she suddenly heard a 'bang'--'like a very large loud firecracker' followed by the sound of bottles falling and breaking; was wet 'from head to toes'; and felt pain in both her legs which were bleeding. Mrs. Mattes stated that when she looked around she saw glass 'and Coca Cola all over the floor'.

The allegations of the complaint and the evidence before the trial court reflected that Mrs. Mattes never actually saw the bottles of coke either exploding or breaking. It was only After Mrs. Mattes took a 6-pack of coke from the coke display turned and walked some four or five feet that the incident took place causing Mrs. Mattes to suffer injuries. The 6-pack which Mrs. Mattes had removed from the display remained intact. The evidence at trial further reflected that it was the custom of the driver of the Coca Cola truck to bring the merchandise in the store and have it stacked; that no Food Fair employee was involved in the stacking process and that the temperature in the store at the time of the accident was a compfortable 70 to 72 .

Plaintiffs' complaint against Coca Cola and Food Fair was predicated upon the separate and concurrent negligence of both defendants and in the alternative upon breach of implied warranty. The allegation of negligence was to the effect that defendant Coca Cola was negligent and careless in the bottling, manufacturing and handling of the product and that Food Fair was negligent in the storage, display and handling of the said product. The allegation pertaining to the implied warranty was to the effect that Coca Cola and Food Fair impliedly warranted to the public that the cartons of coke were sound and safe to use in the store and that the defendants 'did breach said warranty in that said bottles were not safe and were not fit for the use which the bottle and its contents were being sold and as a result thereof plaintiff was injured when said carton of coke bottles exploded as aforesaid'.

At the conclusion of all the testimony and evidence the trial court directed a verdict in favor of Food Fair Stores; ¹ Coca Cola also moved to 'dismiss' the claim of the plaintiffs (in effect plaintiff was requesting the issuance of a directed verdict). The court denied plaintiffs' motion to 'direct a verdict' on the question of negligence; the court granted the motion as to claim predicated upon implied warranty thereby striking it from the plaintiffs' complaint as hereinafter indicated:

'THE COURT: I am going to deny the motion to direct on the question of negligence. On the question of implied warranty I am going to grant the motion. I will not submit that to the Jury.'

The case ultimately went to the jury only on the issue of the negligence of Coca Cola; the jury returned a verdict in favor of Coca Cola and the trial court denied plaintiffs' motion for new trial.

In this appeal plaintiff alleged that it was error for the trial court to have stricken or directed a verdict on plaintiffs' claim predicated upon the theory of implied warranty.

Products liability cases in Florida have been fraught with and mired down in judicially created exceptions. Each fact situation oftentimes gave rise to 'new law' in the area of implied warranty. Apart from the traditional avenues available to one seeking recovery for injuries suffered in a products liability case (i.e., express warranty, tort action based on negligence), liability of a manufacturer or seller has been found to exist because of an implied warranty--a warranty of merchantability of goods fit for ordinary purposes and fit for a particular purpose. A failure to meet the obligations of merchantability or fitness constituted a breach of implied warranty and permitted recovery for injuries suffered by the consumer or user of the defective product. The implied warranty method of recovery was based upon the theory of contract heavily dosed with the law of sales and uniform commercial code. This is quite evident from the genesis of the implied warranty theory. Since the landmark decision in the case of Winterbottom v. Wright, 10 M & W 109, 152 Eng.Rpt. 402 (1842), no action could arise from the failure of the contracting party (manufacturer) to perform a contract properly Unless the injured third party (plaintiff) was in Privity with the defendant. Royal v. Black and Decker Manufacturing Company, Fla.App.1967, 205 So.2d 307. Actions by third parties in Both contract and tort were barred by the requirement for and necessity of privity.

Recognizing that the ritualistic adherence to privity of contract did not comport with the 'right, justice and welfare of the general purchasing and consuming public' the Supreme Court of Florida in Blanton v. Cudahy Packing Co., 1944, 154 Fla. 872, 19 So.2d 313, permitted an ultimate consumer to recover against a food manufacturer Despite the absence of privity. This marked the beginning of the judicial course of court created exceptions to the contractually oriented concept of privity--a concept that the courts apparently recognized had little relevancy to products liability cases. The court relaxed and in effect eliminated the requirement of privity where a Food product was concerned. In so holding, the Supreme Court of Florida observed, at p. 316:

' . . . The rationale of the implied warranty theory of liability is in effect that the right of recovery by injured consumers ought not to depend upon or turn on the intricacies of the law of sale nor upon the privity of contract, but should rest on right, justice and welfare of the general purchasing and consuming public.'

See also Renninger v. Foremost Dairies, Inc., Fla.App.1965, 171 So.2d 602; Canada Dry Bottling Company of Florida v. Shaw, Fla.App.1960, 118 So.2d 840; Gay v. Kelly, Fla.App.1967, 200 So.2d 568; Reese v. Florida Coca-Cola Bottling Company, Fla.App.1972, 256 So.2d 392; Schuessler v. Coca-Cola Bottling Company of Miami, Fla.App.1973, 279 So.2d 901; cf. Cliett v. Lauderdale Biltmore Corporation, Fla.1949, 39 So.2d 476;

Recognizing that the cases in other jurisdictions revealed 'a more humane or reasonable trend of decisions' in the disposition of cases involving the privity requirement, the Supreme Court made further inroads by eliminating privity where the product involved was dangerous or an inherently dangerous instrumentality. ² Matthews v. Lawnlite Company, Fla.1956, 88 So.2d 299; McBurnette v. Playground Equipment Corp., Fla.1962, 137 So.2d 563; Toombs v. Fort Pierce Gas Company, Fla.1968, 208 So.2d 615. As a consequence there developed two of the most well recognized exceptions to the privity requirement, i.e., where the product was a foodstuff or a dangerous instrumentality.

One of the most farreaching decisions having the effect of virtually eliminating the necessity for privity was the case of Lily-Tulip Cup Corporation v. Bernstein, Fla.1966, 181 So.2d 641. In Lily-Tulip, plaintiff, while a patient in a hospital was served a hot drink in a paper cup manufactured by the defendant company. The cup came apart causing the hot contents to spill on plaintiff resulting in scalding. Plaintiff's complaint sought damages against the manufacturer on theories of negligence and breach of implied warranty....