Olney v. Beaman Bottling Co.
| Decision Date | 26 June 1967 |
| Parties | , 220 Tenn. 459 Mrs. Harriet P. OLNEY, Plaintiff in Error, v. BEAMAN BOTTLING COMPANY, Defendant in Error. |
| Court | Tennessee Supreme Court |
F. Clay Bailey, Jr., Nashville, of counsel, Bailey, Ewing & Dale, Nashville, for plaintiff in error.
George H. Armistead, Jr., and Thomas A. Higgins, Nashville, for defendant in error.
This is a suit by a consumer against a processor of bottled drinks seeking to recover upon a theory of breach of implied warranty. The trial judge sustained the demurrer and dismissed the suit. For convenience the parties will be referred to as they appeared in the trial court.
Initially the plaintiff sued the retailer of the product, Cooper-Martin, Inc., as well as the processor, Beaman Bottling Company. The plaintiff later took a voluntary non-suit as to the retailer, however, so that its liability, if any, is not before this Court. As to Beaman Bottling Company, plaintiff alleged it to be a Tennessee corporation 'whose business includes the bottling and distribution to retail outlets of a beverage known as Pepsi-Cola.' The declaration does not contain any allegation that this defendant actually bottled or sold the product in question to the retail outlet mentioned, and there is no allegation as to the condition of the product when and if it left the control of this defendant.
The allegations of the declaration are extremely brief. The declaration was at no time amended, except to change a typing error with reference to a date. As amended, the declaration alleges that during the latter part of December, 1963,
* * * the Plaintiff purchased a carton of Pepsi-Cola, at the Defendant Cooper-Martin, Inc.'s store in Green Hills on Hillsboro Road, Davidson County, Tennessee. When she arrived at her home later in the day, she opened one of the bottles from this carton and after taking several swallows, she noted an odd, disagreeable taste. Upon examination, it was discovered that this bottle of Pepsi-Cola contained large amounts of partially decayed material resembling tobacco.
Thereafter, there follows a description of nausea and alleged injuries. The declaration then states:
This illness and injury resulted from a breach by the defendants of their warranty that the said beverage was fit for human consumption.
The declaration concludes with a prayer for damages and a jury demand.
We are of the opinion that the declaration in this case fails to state a cause of action. It is true that by T.C.A. § 20--806:
All wrongs and injuries to the property and person, in which money only is demanded as damages, may be redressed by an action on the facts of the case.
It is further true that the courts do not look with favor upon demurrers, and, of course, it is provided by statute that at any time before or after a ruling upon a demurrer a plaintiff may amend a declaration to state additional facts or to correct defects in the complaint. T.C.A. § 20--914--915.
We recognize that strict liability exists upon the manufacturer of a product without fault on his part, under the circumstances outlined in 2 RESTATEMENT, Second, Torts § 402--A(1965). This result was foreshadowed by the opinion of this Court in the case of Ford Motor Company v. Lonon, Tenn., 398 S.W.2d 240 (1966). This is a development in the law of torts which seems justified where the conditions specified in the RESTATEMENT are established by proof.
This liability, however, is not liability for breach of warranty as that term has been known and used generally. See Comment M to RESTATEMENT, Second, Torts, § 402--A. This Court held in Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405, 158 S.W.2d 721, 171 A.L.R. 1200 (1942), and in earlier cases, that there is no implied warranty where there is no privity of contract, and that there is no implied warranty of fitness running with a product from the manufacturer to the consumer. To the extent of...
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