Prince v. Smith, 607

• Decision Date: 24 May 1961
• Docket Number: No. 607,607
• Citation: 119 S.E.2d 923,254 N.C. 768
• Court: North Carolina Supreme Court
• Parties: Floy Louise PRINCE v. Merriwell T. SMITH and James O. Walden, D/B/A S & W Food Center.

Page 923

119 S.E.2d 923

254 N.C. 768

Floy Louise PRINCE v. Merriwell T. SMITH and James O. Walden, D/B/A S & W Food Center.

No. 607

Supreme Court of North Carolina.

May 24, 1961

Butler, High & Baer, Charles E. Noell, Fayetteville, for plaintiff, appellant.

Quillin, Russ & Worth, Fayetteville, for defendants, appellees.

HIGGINS, Justice.

This differs from other exploding bottle cases which have been reviewed by this Court. Most prior actions were in tort against the bottling company for injury proximately caused by the company's negligence. Styers v. Winston Coca Cola Bottling Co., 239 N.C. 504, 80 S.E.2d 253; Davis v. Coca Cola Bottling Co., 228 N.C. 32, 44 S.E.2d 337; Enloe v. Charlotte Coca Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Lamb v. Boyles, 192 N.C. 542, 135 S.E. 464, 49 A.L.R. 589; Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A.,N.S., 949.

This action is against the retailer who sold to the plaintiff. The action is in contract, based on alleged breach of implied warranty that the Coca Cola was fit for human consumption as a beverage, and safe for handling. Ordinarily, for breach of implied warranty, the seller is liable only to a party to the contract of sale. A cause of action by the injured party otherwise than against the seller must be based on negligence. Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21. Our court recognizes certain exceptions and variations to the general rule. The manufacturer may attach to the product a warranty to the ultimate consumer. Simpson v. American Oil Co., 217 N.C. 542, 8 S.E.2d 813. A manufacturer may be liable under certain circumstances if he sells an article likely to cause injury in its ordinary use because of its inherently dangerous character, if he fails to guard against hidden defects and to give notice of concealed danger. Tyson v. Long Mfg. Co., 249 N.C. 557, 107 S.E.2d 170. In some of the cases liability on the basis of breach of implied warranty and for negligence seem to shade into each other. See the many cases cited in Wyatt v. North Carolina Equipment Co., supra; Lemon v. Buchan Lumber Co., 251 N.C. 675, 111 S.E. 2d 868; Tyson v. Long Mfg. Co., supra; N.C.Law Review, Vol. 30, p. 191, et seq., (1951-52).

Because of the danger to life and health, the manufacturer and packer of foods and the bottler of beverages intended for human consumption, by offering them for sale, impliedly warrant the fitness of their products for such use. As pointed out, however, the warranty extends no further than the parties to the contract of sale. Thomason v. Ballard & Ballard Co., 208 N.C. 1, 179 S.E. 30. For breach of the warranty, the injured party may sue his retailer who, in turn, may sue the wholesaler or jobber, and he the manufacturer, packer, or bottler upon whom finally rests the primary responsibility. N.C.Law Review, Vol. 32, 1953-54, p. 351 et seq.

'The deliberate policy of carrying the responsibility back to the manufacturer who is best able to meet it is indicated by a few decisions which have refused to find any warranty from a wholesaler to the consumer. Less comprehensible are the decisions of three courts which have confined the manufacturer's warranty to the food or beverage inside of a container, and have refused to find any warranty that the container itself will not explode in the customer's face.' To the above is added a footnote: 'The distinction of course makes no sense. One may speculate that these courts were uneasy about the proof that the plaintiff had not damaged the container himself.' Prosser on Torts, 2d Ed., Ch. 17, p. 509; Loch v. Confair, 372 Pa. 212, 93 A.2d 451; Haller v. Rudmann, 249 App. Div. 831, 292 N.Y.S. 586; Mahoney v. Shaker Square Beverages, Ohio Com.Pl., 108...