Parish v. Great Atlantic & Pacific Tea Co.

• Decision Date: 24 June 1958
• Parties: Julia PARISH, individually and as Guardian ad litem of Andrea Parish and Ilona Parish, infants, Plaintiffs, v. The GREAT ATLANTIC & PACIFIC TEA CO., Defendant.
• Court: New York City Municipal Court

Page 7

177 N.Y.S.2d 7

13 Misc.2d 33

Julia PARISH, individually and as Guardian ad litem of

Andrea Parish and Ilona Parish, infants, Plaintiffs, v. The GREAT ATLANTIC & PACIFIC TEA CO., Defendant.

Municipal Court of City of New York, Borough of Manhattan,

Third District.

June 24, 1958.

Stackell & Stackell, by Lewis B. Stackell, New York City, for plaintiffs.

Breed, Abbott & Morgan, New York City, by Charles T. Hall, New York City, for defendant.

GEORGE STARKE, Justice.

In this non-jury case, a retailer is being sued by the plaintiff individually and as guardian ad litem of her two infant daughters, for both negligence and breach of warranty. All three claim personal injuries as a result of eating jam which allegedly contained foreign deleterious substance. The plaintiff-monther purchased the jam (a sealed jar) from the defendant.

In the absence of any proof that the defendant, as retailer, was negligent in any manner in the handling of the product from the time of its receipt to the time of sale, that branch of defendant's motion seeking dismissal of the causes of action based on negligence is granted. The product was in sealed jars. The defendant was neither the manufacturer nor the packer.

The motions to dismiss the warranty actions of both infants as a matter of law on the ground that there is no contractual relationship between the infants and the defendant-seller, pose a different and most significant issue which has not been squarely presented to the Court of Appeals since 1927 (Redmond v. Borden's Farm Products, 245 N.Y. 512, 157 N.E. 838) 'May a child recover for breach of warranty as a result of eating unwholesome food where the mother was the purchaser?'

The privity issue raised here in of broader significance than in Conklin v. Hotel Waldorf Astoria Corp. (decided by this Court in 5 Misc.2d 496, 161 N.Y.S.2d 205), where the injured plaintiff (as here) was not the 'buyer', but the guest of her friend who paid the check, and it was likewise chaimed that the privity element was lacking between the plaintiff and the defendant-restaurant. Obviously, since store food sales by far exceed restaurant food sales and directly affect the rights of every individual as a consumer, as well as the rights of every retailer and manufacturer, the decision on the question presented here is of deeper impact and will have more general application.

The defendant (represented by one of the most noted and respected law firms in the county) strenuously argues that New York still observes the strict privity requirement. It is stoutly maintained that the infants cannot sue for breach of warranty in the absence of a contractual relationship between the infants and the defendant. The defendant contends that 'there is no privity since the mother made the purchase', and that 'there can be no breach of warranty unless there is privity of contract' still represents the law of this state (Chysky v. Drake Bros. Co., 1923, 235 N.Y. 466, 139 N.E. 576, 27 A.L.R. 1533; Redmond v. Borden's Farm Products, supra; Turner v. Edison, 1928, 248 N.Y. 73, 161 N.E. 423; Ryan v. Progressive Stores Inc., 1931, 255 N.Y. 388, 175 N.E. 105, 75 A.L.R. 339; Gimenez v. Great A. & P. Tea Co., 1934, 264 N.Y. 390, 191 N.E. 27; Bourcheix v. Willow Brook Dairy Inc., 1935, 268 N.Y. 1, 196 N.E. 617, 98 A.L.R. 1492; Smith v. Hanson, 1929, 228 App.Div. 634, 238 N.Y.S. 86; Zotto v. Merkel Bros. Inc., 1930, 229 App.Div. 793, 242 N.Y.S. 749; Block v. Empire State Doughnut Corp., 1930, 233 App.Div. 774, 250 N.Y.S. 440; Massey v. Borden Co., 1942, 265 App.Div. 839, 37 N.Y.S.2d 571; Hopkins v. Amtorg Trading Corp., 1942, 265 App.Div. 278, 38 N.Y.S.2d 788; Salzano v. First National Stores, 1944, 268 App.Div. 993, 51 N.Y.S.2d 645; Dickinson v. Sperling, 1936, 158 Misc. 905, 286 N.Y.S. 934).

This Court was greatly disturbed by the inanity of the strict application of the privity doctrine when the subject arose in the Conklin case, supra. As a result, the Waldorf case represents the first direct and concentrated judicial attack in New York upon the citadel of privity. The Court was roused into investigating the entire privity problem far beyond the precise question in the case, and made an exhaustive research and study of the subject. That which went beyond the decisional need for the Waldorf case was submitted in the form of Articles to the New York Law Journal and appeared in its editorial columns on April 8, 9, 10, 1957. The Articles reviewed the modern trend, aspect and approach by courts in this state and other states, with emphasis on the non-purchaser consumer's rights against the manufacturer as well as the dealer, for breach of warranty rather than in negligence.

In New York City, among subsequent decisions supporting the view and principles expressed in the Articles, Mr. Justice Schwartzwald, in Welch v. Schiebelhuth, Sup., 169 N.Y.S.2d 309, permitted the plaintiffs, who were not the purchasers, to amend their complaints to allege breach of warranty against the retailer. The plaintiffs, who sought and obtained the amendment, were the husband of the purchaser and two guests--the husband's brother and mother; and in another New York City case (May 28, 1957), Mr. Justice Mangan used the Articles as the basis for permitting a plaintiff, who purchased a bar of candy from a retailer, to amend his negligence action against the manufacturer to breach of warranty, and to charge the jury accordingly (Lardaro v. M. B. S. Cigar Corp. and Planters Nut & Chocolate Co., Mun.Ct., 177 N.Y.S.2d 6).

On the other hand, there have been decisions to the contrary, such as the most recent one of Zampino v. Colgate-Palmolive Co., 1958, 10 Misc.2d 686, 173 N.Y.S.2d 117, 121, where the Court used the language of the Chysky and Gimenez cases, supra: 'A cause of action for breach of warranty rests on contractual relations and hence there is no warranty except to the person to whom the sale is made.'

Since the Waldorf, Lardaro and Welch cases, supra, were not taken up on appeal, a state of confusion presently exists. It is hoped that, because the privity problem is of vital concern, the higher courts will clarify the legal atmosphere clouding the subject. As Lord Mansfield said: 'Lawyers and litigants are entitled to know where they stand as to what their rights are and what the law is.'

The New York Trend

The Court disagrees with the defendant's interpretations of the Blessington and Bowman cases (discussed later) and places a different construction on them as well as upon some of the earlier cases cited, such as the Ryan and Hopkins cases, supra. In addition, the defendant has entirely overlooked the recent (1956) case of Mouren v. Great A. & P. Co., 1 N.Y.2d 884, 154 N.Y.S.2d 642. An analysis of these cases reveals a realization that thinking along strict classical contractual lines will cause grave injustices and the Courts have therefore strained wherever possible to find avenues of escape from the tenacious tentacles of privity.

Fortunately, the Court finds that New York has in some respects discarded the requirement of privity altogether by finding make-weights to offset the illogical and unrealistic notion that a warranty does not run to a consumer unless the consumer paid the purchase price. While not rejecting it completely as other states have (California, Florida, Illinois, Iowa, Kansas, Louisiana, Michigan, Mississippi, Ohio, Oklahoma Pennsylvania, Tennessee, Texas, Washington) New York has been liberal in discerning privity where less imaginative courts might not, and its findings have warmly received even by those states which still cling to the strict privity requirement (Massachusetts, New Hampshire, New Jersey and Maryland).

The New York trend definitely indicates an enlightened movement toward the relaxation of the totally strict and unsound doctrine of privity (especially in food cases, since public health is involved). The Court is therefore not confronted with the problem of whether stare decisis commands blind adherence to an outmoded doctrine which insofar as it rests on principle, fails in reason. And so the question is presented:

'Is it conceivable in this modern day and age that New York is frustrated by and bound to an archaic and senseless privity rule which bars an infant's recovery where the mother purchases the unwholesome food?'

If that be the law, it amounts to the Court saying to the infant:

'You cannot recover for your injuries because you didn't buy the food. Only the purchaser can sue because only the purchaser has privity with the seller. Therefore, your mother is the only one who can sue. And she can only sue for her own injuries, not for yours, because she was the buyer--even though you were both injured by eating the same unwholesome food, which she bought for both of you to eat.'

The Effect of the Agency and Third Party Beneficiary

Doctrines on Privity.

We now turn to the Appellate cases which represent judicial makeweights to offset the built-in inequity of the privity requirement.

In Bowman v. Great A. & P. Tea Co., 1954, 284 App.Div. 663, 133 N.Y.S.2d 904, affirmed without opinion 1955, 308 N.Y. 780, 125 N.E.2d 165, the Appellate Division (4th Dept.) held that the plaintiff, who was not the purchaser, was entitled to recover although her sister made the purchase. The Court justified the finding by employing the 'household-fund' theory, namely, that the money with which the food was purchased came out of joint 'household' funds and was used for joint 'household' consumption food purchases.

Actually, the decision was based on the reasoning in the Ryan case (1931), supra, where Justice Cardozo was the first to skirt the strict privity requirement by holding that the husband might sue since the wife acted as his 'agent' in making the purchase.

The warranty right was therefore extended to the husband where the wife was the purchaser. The Court presumed from the relationship of husband and wife that the husband...