Schuessler v. Coca-Cola Bottling Co. of Miami, COCA-COLA

• Decision Date: 29 June 1973
• Docket Number: No. 72--582,COCA-COLA,72--582
• Parties: 12 UCC Rep.Serv. 1050 Katherine SCHUESSLER, Appellant, v.BOTTLING COMPANY OF MIAMI, d/b/a Palm Beach Coca-Cola Bottling Company, and Winn-Dixie Stores, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 901

279 So.2d 901

12 UCC Rep.Serv. 1050

Katherine SCHUESSLER, Appellant, v. COCA-COLA BOTTLING COMPANY OF MIAMI, d/b/a Palm Beach Coca-Cola Bottling Company, and Winn-Dixie Stores, Inc., a Florida corporation, Appellees.

No. 72--582.

District Court of Appeal of Florida, Fourth District.

June 29, 1973.

Rehearing Denied July 30, 1973.

Guy C. Hill, of Heuer & Albury, West Palm Beach, for appellant.

Wallis E. Schulle, of Fisher, Prior, Pruitt & Schulle, West Palm Beach, for appellee, Coca-Cola.

John R. Beranek, of Jones, Paine & Foster, West Palm Beach, for appellee, Winn-Dixie.

REED, Chief Judge.

The broad issue on this appeal is whether the trial court erred in granting defendants' motions for directed verdict on plaintiff's claim for damages for a breach of an implied warranty of merchantability. More precisely we must decide whether, on the facts of this case, either or both defendants is burdened with an implied warranty of merchantability with respect to a cardboard carton enclosing six 16-ounce bottles of Coca-Cola taken for purchase by the plaintiff from a shelf in a grocery store operated by the defendant Winn-Dixie Stores, Inc., and, if so, whether the plaintiff presented sufficient evidence to authorize a jury to find, as a matter of fact, that a breach of such warranty had occurred.

The amended complaint which was filed in the Circuit Court for Palm Beach County charged that on 7 September 1968 the plaintiff bought the carton of Coca-Colas from a grocery store operated by the defendant Winn-Dixie in West Palm Beach. According to the complaint, the Coca-Cola was bottled and packaged by defendant Coca-Cola Bottling Company in Miami, and distributed by it to the store operated by defendant Winn-Dixie. When plaintiff lifted the carton from the display rack in the store, the bottom of the carton allegedly failed and as a result one bottle dropped to the floor, broke, and caused injury to the plaintiff. Defendant Winn-Dixie admitted the purchase and the fact that the drinks were bottled, packaged and supplied to it by the co-defendant, ready for retail sale. Defendant Coca-Cola Bottling Company denied all essentials of the complaint. At the close of the plaintiff's evidence the trial court granted defendants' motions for directed verdict on the implied warranty counts and submitted the case to the jury only on issues of negligence. The jury returned a verdict for the defendants, final judgment was entered, and this appeal followed.

At trial, the plaintiff testified that on 7 September 1968 at defendant Winn-Dixie's store she picked up a paper carton containing six 16-ounce bottles of Coca-Cola. The carton was on the bottom shelf of a display counter. When she had lifted the carton to about knee height, the accident occurred in the manner described in the complaint. The plaintiff testified that she did not tilt thecarton as she lifted it. She stated she saw no hole in the bottom of the carton, either before or after the accident, but denied having examined the carton to determine the presence of any such defect.

The gentleman who managed the Winn-Dixie store at the time of the accident testified that the Coca-Cola, bottled and packaged, was placed on the shelf by a salesman for the co-defendant. The manager testified that after the accident, he examined the carton plaintiff had picked off the shelf and could not recall seeing any defect in it. Unfortunately the carton was disposed of by the store's clean-up crew.

The only witness connected with the defendant Coca-Cola Bottling Company was the route salesman who supplied the drinks to the store. His testimony simply revealed that Coca-Cola Bottling Company supplied its co-defendant with Coca-Cola bottled, packaged, and ready for retail sale. No testimony indicated who actually manufactured the paper carton in which the bottles were packaged.

The question of the defendants' liability for an implied warranty of merchantability should be discussed separately as to each. The case of Foley v. Weaver Drugs, Inc., Fla.1965, 177 So.2d 221, would be controlling as to the retailer, Winn-Dixie, but for the statute hereafter mentioned. In Foley, the high court held that public necessity does not require the imposition of an implied warrant of merchantability on a retailer with respect to a glass bottle containing diet pills where the container was unrelated to and had no deleterious effect on the consumable within. The court said:

'We are not persuaded that considerations of public policy require us to extend to food containers the 'implied warranty' liability of retailers as to the food contained therein, on the contrary, we are of the opinion that it would be unreasonably burdensome to extend liability in this respect.' . . .

The Uniform Commercial Code became effective on 1 January 1967. It contains the following provision which governs the liability of the retail seller in the present case:

(Section 672.2--314)

'(1) . . . a warranty that the goods shall be merchantable Is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. . . .

'(2) Goods to be merchantable must be at least such as:

'(e) Are adequately contained, packaged, and labeled as the agreement may require; and

(Emphasis supplied).'

This statute imposes...