Mazetti v. Armour & Co.

• Citation: 75 Wash. 622,135 P. 633
• Court: United States State Supreme Court of Washington
• Decision Date: 08 October 1913
• Parties: MAZETTI et al. v. ARMOUR & CO. et al.

135 P. 633

75 Wash. 622

MAZETTI et al. v. ARMOUR & CO. et al.

Supreme Court of Washington

October 8, 1913

Department 1. Appeal from Superior Court, King County; H. A. P. Myers Judge.

Action by L. Mazetti and others against Armour & Co. and others. From a judgment for the defendant named, plaintiffs appeal. Reversed and remanded, with directions.

Jas. L Crotty and Thos. R. Horner, both of Seattle, for appellants.

Peters & Powell, of Seattle, for respondent.

CHADWICK, J.

The complaint alleges that the plaintiffs were operating a profitable restaurant in the city of Seattle, and dealing with the general public as their patrons; that defendant Armour & Co. is engaged in the business of manufacturing and selling to the public generally meats and products to be used as food; that it maintains a place of business in Seattle Wash., from which it sells and distributes its goods representing and holding out to the general public that its goods are pure, wholesome, and fit food for human beings that on June 16, 1912, plaintiffs, in the usual course and conduct of their business, purchased from the Seattle Grovery Company a carton of cooked tongue, prepared and ready to be used for food without further cooking or labor; that such package had been manufactured and prepared by defendant Armour & Co.; that the carton or container bore its name, and that it was purchased to be sold to plaintiffs' customers; that in making such purchase plaintiffs relied upon the representations of Armour & Co. that said food was pure and wholesome and fit for food; that Armour & Co. were guilty of negligence in manufacturing and preparing the foods purchased, in that in the center of the carton was a foul, filthy, nauseating, and poisonous substance; that in the due course of trade plaintiffs served to one of their patrons a portion of the tongue; that the patron ate of it; that he then and there became sick and nauseated, and did then and there in the presence of other persons publicly expose and denounce the service to him of such foul and poisonous food; that the incident became known to the public generally; that plaintiffs had no knowledge or means of knowing the character of the food served; that its condition could not be discovered until it was served for use--all to the damage of the plaintiffs, etc., for loss of reputation, business, and lost profits during the life of their lease. Defendants demurred to the complaint. The demurrer of Armour & Co. was sustained, and plaintiffs have appealed.

It has been accepted as a general rule that a manufacturer is not liable to any person other than his immediate vendee; that the action is necessarily one upon an implied or express warranty, and that without privity of contract no suit can be maintained; that each purchaser must resort to his immediate vendor. To this rule certain exceptions have been recognized: (1) Where the thing causing the injury is of a noxious or dangerous kind. (2) Where the defendant has been guilty of fraud or deceit in passing off the article. (3) Where the defendant has been negligent in some respect with reference to the sale or construction of a thing not imminently dangerous.

Within one of these exceptions is to be found the reason for holding the manufacturer of patent or proprietary medicines to answer at the suit of the ultimate consumer. Direct actions are allowed in such cases because the manufacturer of medicines is generally shrouded in mystery, and sometimes, if not generally, they contain poisons which may produce injurious results. They are prepared by the manufacturer for sale and distribution to the general public, and one purchasing them has a right to rely upon the implied obligation of the manufacturer that he will not use ingredients which if taken in prescribed doses will bring harmful results. Reference may be had to the following cases which sustain, and in which many other cases are cited which sustain, this exception: Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S.E. 118, 5 L. R. A. 612, 20 Am. St. Rep. 324; Weiser v. Holzman, 33 Wash. 87, 73 P. 797, 99 Am. St. Rep. 932.

Another exception--the doctrine is comparatively recent--is referable to the modern method of preparing food for use by the consumer, and the more general and ever-increasing use of prepared food products. The following are among the more recent cases holding that the ultimate consumer may bring his action direct against the manufacturer: Meshbesher v. Channellene Oil & Mfg. Co., 107 Minn. 104, 119 N.W. 428, 131 Am. St. Rep. 441; Tomlinson v. Armour, 75 N. J. Law, 748, 70 A. 314, 19 L. R. A. (N. S.) 923; Salmon v. Libby, 219 Ill. 421, 76 N.E. 573; Haley v. Swift (Wis.) 140 N.W. 292; Watson v. Augusta, 124 Ga. 121, 52 S.E. 152, 1 L. R. A. (N. S.) 1178, 110 Am. St. Rep. 157; Ketterer v. Armour (D. C.) 200 F. 322. The contrary is held in the case of Nelson v. Armour, 76 Ark. 352, 90 S.W. 288, 6 Ann. Cas. 237. This case, though well reasoned along the lines of those causes which hold that the rule of caveat emptor applies, is not in touch with the modern drift of authority. Some of the cases hold that the action is for breach of warranty; others that it is to be sustained upon the ground of negligence. A few courts have attributed the growth of this exception to the general public policy as declared in the pure food laws (Meshbesher v. Channellence, etc., supra), while others say that the liability for furnishing provisions which endanger human life rests upon the same grounds as the manufacturing of patent or proprietary medicine. Bishop v. Weber, 139 Mass. 411, 1 N.E. 154, 52 Am. Rep. 715; Haley v. Swift, supra; Tomlinson v. Armour, supra; Meshbesher v. Channellene, supra; Salmon v. Libby, supra; Watson v. Augusta, supra; Ketterer v. Armour, supra. In the case of Weiser v. Holzman, this court said: 'The rule does not rest upon any principle of contract, or contractual relation existing between the person delivering the article and the person injured, for there is no contract or contractual relation between them. It rests on the principle that the original act of delivering the article is wrongful, and that every one is responsible for the natural consequences of his wrongful acts.' Although the cases differ in their reasoning, all agree that there is a liability in such cases irrespective of any privity of contract in the sense of immediate contract between the parties.

Indeed, we understand that respondent does not claim that the ultimate consumer, the person who ate the unfit food, would be denied a right of recovery under modern authority; but it is strenuously contended that such actions are sustained because the consumer has been injured in health and comfort, that the exception should not be carried to the extent of allowing a retailer of the goods to sue direct and recover for injury to his business and loss of reputation, that in such cases there must still be privity of contract. It seems that the test should not rest in finding the plaintiff's damage in health or business, but in answering the question whether there has been a damage which may be justly attributed to the negligence or a breach of duty on the part of the one who had power and whose duty it was to prevent the wrong.

Counsel on either side have been zealous in searching the books, but only one case is submitted that goes directly to the right of the retailer or middleman to sue in the first instance--Neiman v. Channellene Oil & Mfg. Co., 112 Minn. 13 127 N.W. 394, 140 Am. St. Rep. 458. The right to recover for loss of trade consequent upon the selling of impure food was sustained; the court saying, 'A company which advertises itself as a manufacturer and seller of pure articles of food must be deemed to have knowledge of the contents of the articles offered for sale.' The court held to the doctrine of implied warranty. The suit was brought by the retailer against his immediate vendor, so that we still have to meet the question of whether the retailer who has lost his trade can sue over the head of his immediate vendor, or join him with the manufacturer as in this case. In the light...