McIntyre v. Kansas City Coca Cola Bottling Co.

• Decision Date: 24 August 1949
• Docket Number: No. 5294-5295.,5294-5295.
• Parties: McINTYRE v. KANSAS CITY COCA COLA BOTTLING CO. McINTYRE et al. v. KANSAS CITY COCA COLA BOTTLING CO.
• Court: U.S. District Court — Western District of Missouri

85 F. Supp. 708

McINTYRE v. KANSAS CITY COCA COLA BOTTLING CO.

McINTYRE et al. v. KANSAS CITY COCA COLA BOTTLING CO.

Nos. 5294-5295.

United States District Court W. D. Missouri, W. D.

August 24, 1949.

John W. Oliver, Kansas City, Mo., for plaintiffs.

Henry Depping, Kansas City, Mo., for defendant.

RIDGE, District Judge.

In the above actions plaintiffs premise their right of recovery of damages from defendant for breach of implied warranty of merchantability, arising out of the sale of a bottle of coca cola, manufactured and bottled by defendant in the State of Missouri. The complaint charges that the infant plaintiff's parents purchased six bottles of coca cola from an Atlantic and Pacific Tea Company Store; that six days after the purchase the plaintiff (approximately two years old) "was carrying one of the said bottles in the kitchen of her home, (when) said bottle of coca cola exploded with such force that pieces of glass from the exploding bottle were driven into (her) face * * * and one particular piece of glass was driven directly into (her) left eye;" and that as a result the infant plaintiff has been permanently injured; that from the time of the "purchase until the explosion of (the bottle) said bottles were handled by all persons in a safe and usual manner." Damages are prayed accordingly. Defendant interposes the defense that the complaints "fail to state a claim upon which relief can be granted." By agreement of parties, that defense is now submitted to the Court.

The issue thus presented raises the question whether under Missouri law recovery of damages may be had from the manufacturer of goods, by the donee of a vendee of a retail vendor, for breach of implied warranty of merchantability. Missouri has not adopted the Uniform Sales Act. There is no direct expression by the highest courts of that State on the subject. Therefore, we must examine the case law of Missouri to ascertain if there is "any persuasive data that is available, such as compelling inferences or logical implications from other related adjudications and considered pronouncements" of its courts that will lead us to a determination of the liability here claimed. Yoder v. Nu-Enamel Corp., 8 Cir., 117 F.2d 488, 489; Mattson v. Central Elec. & Gas Co., 8 Cir., 174 F.2d 215; Wilmington Trust Co. v. Mutual Life Ins. Co., D.C., 68 F.Supp. 83. If such data is available, then we may not indulge in "judicial legislation" and attempt to formulate or apply a legal axiom that is opposite thereto, or may do violence to "the legal mind of the state." Yoder v. Nu-Enamel Corp., supra 117 F.2d 489; Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231.

What is the law of the State of Missouri on implied warranty of fitness or merchantability? In that class of cases involving food and drink, for immediate consumption, the intermediate appellate courts of Missouri have specifically ruled that there is an implied warranty of fitness of such food and drink for human consumption; and have sustained recovery of damages by the immediate vendee against the vendor for breach thereof, whether the sale was made in an original package or not. Smith v. Carlos, 1932, 215 Mo.App. 488, 247 S.W. 468; Fantroy v. Schirmer, Mo.App., 1927, 296 S.W. 235; DeGouveia v. H. D. Lee Mercantile Co., 1936, 231 Mo.App. 447, 100 S.W.2d 336; Bell v. S. S. Kresge, Mo.App., 1939, 129 S.W.2d 932. In Beyer v. Coca Cola Bottling Co., Mo.App., 1934, 75 S.W. 2d 642; Madouros v. Kansas City Coca Cola Bottling Co., 1936, 230 Mo.App. 275, 90 S.W.2d 445; Nemela v. Coca Cola Bottling Co., Mo.App., 1937, 104 S.W.2d 773; McNicholas v. Continental Baking Co., Mo.App., 1938, 112 S.W.2d 849, and Carter v. St. Louis Dairy Co., Mo.App., 1940, 139 S.W.2d 1025, said courts have affirmed recovery of damages for personal injuries sustained by a consumer (the immediate vendee of a retail vendor) against the manufacturer or maker of food and drink prepared for immediate consumption and containing putrid or harmful substances. The rule laid down in that class of cases by the intermediate appellate courts of Missouri when imposed upon the manufacturer, is stated in Madouros v. Kansas City Coca Cola Bottling Co., supra, as follows 230 Mo.App. 275, 90 S.W.2d 449:

"The obligation of the manufacturer should not be based alone on privity of contract. It should rest, as was once said, upon `the demands of social justice.' * * * `We may judicially recognize that the contents are sealed up, not open to the inspection or test, either of the retailer or of the customer, until they are opened for use, and not then susceptible to practical test, except the test of eating. When the manufacturer puts the goods upon the market in this form for sale and consumption, he, in effect, represents to each purchaser that the contents of the can are suited to the purpose for which it is sold, the same as if an express representation to that effect were imprinted upon a label. Under these circumstances, the fundamental condition upon which the common-law doctrine of caveat emptor is based — that the buyer should "look out for himself" — is conspicuously absent.'

"Under modern conditions, when products of food or drink have been prepared under the exclusive supervision of the manufacturer and the consumer must take them as they are supplied, the representations constitute an implied contract, or implied warranty, to the unknown and helpless consumer that the article is good and wholesome and fit for use. If privity of contract is required, then, under the situation and circumstance of modern merchandise in such matters, privity of contract exists in the consciousness and understanding of all right-thinking persons."

In cases involving objects other than food or drink, the intermediate appellate courts of Missouri have sustained recovery of damages for breach of implied warranty where the buyer buys goods for a particular purpose and the manufacturer or seller of such goods undertakes to supply them for that special purpose. Lee v. J. B. Sickles Saddlery Co., 38 Mo.App. 201; Aultman, Miller & Co. v. Hunter, 82 Mo.App. 632; Moore v. Koger, 113 Mo.App. 423, 87 S.W. 602; Glasgow Milling Co. v. Burgher, 122 Mo.App. 14, 97 S.W. 950; Atkins Bro. Co. v. Southern Grain Co., 119 Mo.App. 119, 95 S.W. 949; Kimball-Fowler Cereal Co. v. Chapman & Dewey Lbr. Co., 125 Mo. App. 326, 102 S.W. 625; Cline v. Mock, 150 Mo.App. 431, 131 S.W. 710; Morton Elec. Co. v. Schramm, Mo.App., 277 S.W. 368; Columbia Weighing Mach. Co. v. Young, 222 Mo.App. 144, 4 S.W.2d 828; Columbia Weighing Mach. Co. v. Fitzgibbons, Mo.App., 43 S.W.2d 897; Progressive Finance & Realty Co. v. Stempel, 231 Mo.App. 721, 95 S.W.2d 834; Farmers Bank of Trenton v. Ray & Son, Mo.App., 167 S.W.2d 963. In some of the cases thus decided by said courts, there is dicta to the effect that though the implied warranty considered was one relating to a particular purpose, it was in effect a warranty of merchantability. See The Kimball-Fowler Cereal Co. v. Chapman & Dewey Lbr. Co., supra, and Glasgow Milling Co. v. Burgher, supra. However, it seems clear from a reading of such decisions that though the courts in the course of these opinions make mention of a warranty of merchantability, or the application of such doctrine to the facts involved would indicate a holding of implied warranty of merchantability, that the courts in reality seek to apply the rule of "fitness for a particular purpose" and do not intend to extend the doctrine of implied warranty to merchantability generally.

The Supreme Court of the State of Missouri has not specifically decided the question of implied warranty as applied by the intermediate appellate courts of that State, in food and drink cases as above stated. That Court has, however, in the limited number of cases appearing before it, definitely sustained the rule of implied warranty as applied to sales for a particular purpose, where the purchaser is shown to have relied upon the seller's judgement in that respect. Mark v. H. D. Williams Cooperage Co., 204 Mo. 242, 103 S.W. 20; Hunter v. Waterloo Gasoline Engine Co. Mo.App., 260 S.W. 970; Busch & Latta Painting Co. v. Woermann Const. Co., 310 Mo. 419, 276 S.W. 614; London Guarantee & Accident Co. Ltd. v. Strait Scale Co., 322 Mo. 502, 15 S.W.2d 766, 64 A.L.R. 936.

So it would appear from the foregoing decisions of the appellate courts of Missouri that it is ostensibly the definitive law of that State that in food and drink cases, and in cases involving a sale of goods for a particular purpose, recovery may be had for breach of implied warranty of fitness. The question remains whether either such apparent axioms can be applied to the facts in the case at bar, or whether it may be inferred therefrom that the appellate courts of Missouri might reasonably be expected to extend such doctrine so as to include the facts here considered. That the definitive law of Missouri as stated and applied in the above-referred-to decisions is not decisive of the instant matter, is readily apparent. Whether the doctrine therein expressed would be extended to include the facts now before this Court is cast in substantial doubt; doubt of such hue and color that the only reasonable inference that can be made is that recovery for breach of an implied warranty of "merchantability" generally cannot be had in that State.

There is a very reasonable analogy between a bottle which explodes from some reaction of its contents and the contents of a bottle that contains deleterious substance injurious to health. Where the intermediate appellate courts of Missouri have sustained a right of recovery for breach of implied warranty for the latter, it could very readily be assumed that such courts would also authorize and sustain a recovery under like theory for the former circumstance. This would seem apparent from the decision in the Madouros case, supra, and from the decision of the...