Renninger v. Foremost Dairies, Inc.

• Citation: 171 So.2d 602
• Decision Date: 09 February 1965
• Docket Number: No. 64-459,64-459
• Parties: Alice S. RENNINGER, Appellant, v. FOREMOST DAIRIES, INC., a New York corporation, Appellee.
• Court: Florida District Court of Appeals

Page 602

171 So.2d 602

Alice S. RENNINGER, Appellant, v. FOREMOST DAIRIES, INC., a New York corporation, Appellee.

No. 64-459.

District Court of Appeal of Florida, Third District.

Feb. 9, 1965.

Rehearing Denied March 2, 1965.

Julius H. Erstling, So. Miami, and Emanuel Levenson, Miami, for appellant.

Carey, Terry, Dwyer, Austin, Cole & Stephens and Edward A. Perse, Miami, for appellee.

Before TILLMAN PEARSON, CARROLL and HENDRY, JJ.

TILLMAN PEARSON, Judge.

The plaintiff, appellant, claimed an injury as a result of the breaking of a one-gallon milk bottle. The bottle was one in which defendant, appellee, offered its milk for sale. The cause proceeded to trial and the plaintiff received a verdict from the jury. The trial judge entered final judgment for the defendant in accordance with defendant's motion for directed verdict made at the conclusion of the testimony and also granted a new trial pursuant to defendant's motion. This appeal is from the final judgment and order granting a new trial. We reverse and direct entry of judgment for the plaintiff upon the jury verdict.

Plaintiff's action was upon the theory of implied warranty. The complaint alleged that the bottle was not reasonably safe or fit for the purpose for which it was intended. There is no controversy as to how the accident happened because all of the evidence adduced as to liability was uncontroverted. The evidence reveals that on Saturday, May 12, 1962, at about 12:00 noon the plaintiff was shopping at Frederichs Market in Miami. She stopped at a longlow dairy case to buy some milk and in the process lifted a gallon bottle of defendant's milk out of the dairy case. As she was lifting the bottle to her shopping cart, it parted so that she was left with the top part in her hand. The bottom part of the bottle with the one gallon of milk fell, severely injuring the plaintiff's foot.

The plaintiff testified that she did not notice any defect or crack in the bottle as she picked it up and that she did not strike it against any object. Defendant's route salesman testified that he made two deliveries to the market in question, one between 8:30 and 9:00 a. m. and the other between 2:00 and 3:00 p. m., on the day of the accident. He filled the customer's case with milk and then filled a storage box in the rear of the store. He testified that sometimes employees of the store took milk from the storage box and place it in the customer box. This witness testified that bottles occasionally broke in his truck but that he was careful not to place a damaged bottle in the case. He further established that a gallon bottle filled with milk weighs between 8 1/2 and 9 pounds. With this evidence before it, the jury found for the plaintiff.

The only question presented on this appeal is whether or not the facts as outlined above were sufficient to establish liability to the customer, plaintiff, by the dairy company which was the supplier of th bottled milk. The law of products liability is one that has been frequently considered in Florida. The basis of liability in such cases is well expressed in Cliett v. Lauderdale Biltmore Corporation, Inc., Fla.1949, 39 So.2d 476:

'These cases establish the principle that as to items of food or other products in the original package which are offered for sale for human consumption or use generally, a person who purchases such items in reliance upon the express or implied condition or assurance that they are wholesome and fit for the uses or purposes for which they are advertised or sold, and who is injured as the result of unwholesome or deleterious substances therein which are unknown to the buyer, may hold either the manufacturer or the retailer liable in damages for injuries sustained by him, on the theory of an implied warranty of wholesomeness or fitness of such article or product for the purposes for which it was offered to the public.' 39 So.2d at 477.

For a discussion of the subject, see Implied Warranty in Florida, 12 U.Fla.L.Rev. 241 (1959).

In Canada Dry Bottling Co. v. Shaw, Fla.App.1960, 118 So.2d 840, it was recognized that the implied warranty of fitness may include the container or bottle in which the product is offered for sale. Accordingly, the purchaser...