Pennington v. Cranberry Fuel Co., (No. 8368)
| Decision Date | 20 June 1936 |
| Docket Number | (No. 8368) |
| Court | West Virginia Supreme Court |
| Parties | James Ronald Pennington, Infant, v. Cranberry FuelCompany |
Sales
When a retail dealer in foodstuffs sells in sealed containers an article of food that is customarily so sold and which he has so received from the jobber or manufacturer, there is no implied warranty on the part of such dealer that the article is fit for human consumption.
Error to Circuit Court, Raleigh County.
Action by James Ronald Pennington, an infant, by his next friend, against the Cranberry Fuel Company. To review a judgment for plaintiff, defendant brings error.
Reversed and remanded.
Dillon, Mahan & White and McGinnis, Ashworth & Mann, for plaintiff in error.
W. A. Thornhill, Jr., and Ned H. Ragland, for defendant in error.
James Ronald Pennington, an infant who sued by his next friend, recovered a judgment in the Circuit Court of Raleigh County against the Cranberry Fuel Company for damages sustained by him from drinking cocoa made from the contents of a can in which there was a dead mouse. To that judgment, the defendant below prosecutes this writ of error.
The only questions for decision arise upon the sufficiency of the plaintiff's proof to sustain the verdict of the jury. The evidence shows that the cocoa was purchased at a store operated by the defendant sometime in December, 1933. A servant from the household in which plaintiff lived went to the store and asked for a can of Hershey's Cocoa. Opler's Cocoa was supplied instead, but this substitution was noted and acquiesced in before the cocoa was used. Some three weeks after the can of cocoa was purchased, the plaintiff drank some of it and became ill. The putrified mouse was discovered in the can in such position as to indicate that it was there when the cocoa was packed. The can of cocoa was prepared by a reputable manufacturer, was received by the defendant in a sealed package or can that remained unbroken at the time of sale, and it was customary to sell the cocoa in such sealed packages.
The plaintiff sought recovery on two grounds. The first ground was negligence on the part of the defendant, and the second, the breach of an alleged implied warranty of the cocoa as fit for human consumption which arose out of the sale.
We find no basis in this record for sustaining recovery on the ground of negligence. The article in question was customarily handled in sealed packages, and it was both received and sold by the defendant in that condition. The uncontradicted proof shows that the cocoa sold by the defendant was of a standard brand, put up by a reputable manufacturer, and that it was inspected before being placed in stock. No degree of care on the part of the defendant could have disclosed the presence of a foreign substance inside the sealed container.
The remaining question is that of implied warranty. It must be confessed at the outset that the decided cases upon the question of law upon which this phase of the case turns are in conflict, and that there are well reasoned statements to be found on both sides of the question. After careful examination and consideration, we have concluded that the better reasoned rule is to the effect that there is no warranty of fitness by a retailer who purchases goods of a reputable brand from a jobber or manufacturer in sealed packages or containers and sells them in the same condition that they were in when purchased, and without the opportunity of inspecting or of otherwise determining the condition of the contents of the packages. There might, however, be a question of negligence in cases where the outside condition of the package or other circumstances would be such as to convey information concerning the contents or to put the retailer on inquiry.
It is to be remembered that the general rule of sales is caveat emptor (let the buyer beware). This rule is based upon the supposed fact that in all ordinary circum- stances, the buyer has as much opportunity to acquaint himself with the condition of the goods bought as has the seller. He knows more than does the seller about his own requirements and the use to which he intends to put the goods he purchases. As it was discovered that the weight of modern commerce could not be sustained without increasing dependence being placed in the integrity and candor of those conducting it, the crudity of this ancient rule had to undergo adjustments by the courts. These took the form of established exceptions...
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