Sencer v. Carl's Markets

• Decision Date: 14 April 1950
• Citation: 45 So.2d 671
• Parties: SENCER et al. v. DARL'S MARKETS, Inc.
• Court: Florida Supreme Court

Page 671

45 So.2d 671

SENCER et al. v. DARL'S MARKETS, Inc.

Supreme Court of Florida, en Banc.

April 14, 1950.

Broad & Cassel, Miami Beach, for appellants.

Myers, Heiman & Kaplan and Dixon, DeJarnette & Bradford, Miami, for appellee.

CHAPMAN, Justice.

This appeal is from a final judgment entered below in behalf of defendant-appellee upon sustaining demurrer to plaintiffs-appellant's declaration. The declaration alleged an implied warranty by the defendant-appellee that a can of Bar Harbor Sardines sold by the defendant to the plaintiff was fit for human consumption. It was alleged that the plaintiff, after eating a small portion of the contents of the can of sardines, became violently ill and the proximate cause thereof was the deleterious or unwholesome food contained in the can purchased of the defendant-appellee.

Petinent allegations of the declaration are viz.:

'On or about March 19, 1949, and for sometime prior thereto the defendant was engaged in the business of selling at retail to the general public foods and food products, including a certain canned fish product known as 'Bar Harbor Sardines'.

'On or about March 19, 1949, the defendant sold and delivered a certain can of said Bar Harbor sardines to the plaintiff Fannie Sencer, in the defendant's store located at 2155 S. W. 22nd Street, Miami, Florida.

'The plaintiff, Fannie Sencer, purchased said can of Bar Harbor sardines from the defendant's said store, to be used that 'noontime as part of the meal at the plaintiff's home. Within a few hours after said purchase, the plaintiff, Fannie Sencer, opened said can, and a few minutes later, the plaintiff, Fannie Sencer, ate a small portion of the contents thereof.

'At the time of the purchase by the plaintiff, Fannie Sencer, of the can of Bar Harbor sardines, as aforesaid, the defendant had impliedly warranted that said can of Bar Harbor sardines was a food fit for human consumption, and until after the plaintiff, Fannie Sencer, ate the small portion thereof, she believed that it was both wholesome and fit for human consumption, and had no notice that it was otherwise. However, at the time it was opened, said can of Bar Harbor sardines contained foreign or dangerous matter deleterious within itself, the said can of Bar Harbor sardines being, on account thereof, dangerous for human consumption.'

Posed for adjudication here is the simple question: Is a retail dealer in food products sold in sealed packages or cans to the consuming public liable in damages for injuries sustained by a purchasing consumer because of deleterious, unwholesome or unfit substances for human consumption appearing in the sealed package of can on the theory of an implied warranty? In the case of Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So.2d 313, we held the manufacturer of such a sealed canned food product liable for damages to a consuming purchaser on an implied warranty theory. It is contended that a legal distinction exists between the manufacturer of such an article of consumption and a retail dealer selling such an article to the consuming public.

Our holding in Blanton v. Cudahy Packing Company, supra, was reaffirmed by this Court in Cliett v. Lauderdale Biltmore Corp., Fla., 39 So.2d 476, 477, when we in part said: 'These cases establish the principle that as to items of foods 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 of 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 of fitness of such article of product for the purposes for which it was offered to the public.'

Counsel for appellee contend that the implied warranty of food sold in sealed cans or packages should be limited or restricted to the manufacturers and should not be extended to retailers, because the menufacturer knows the quality and content of the food canned and offered to the public for consumption; likewise it has a legal duty to sell the public only wholesome food; it is easier and more equitable to place the duty and responsibility of offering only wholesome food to the consuming public than on the retailer thereof. Counsel for appellants point out that the duty to offer and sell wholesome food in sealed cans and packages to the consuming public should rest alike on the manufacturer and retailer because the retailer is experienced in buying from the manufacturers; he is acquainted with the products and the manufacturers; he relies upon representations made to him. The public is vitally concerned in wholesome food or its health will be jeopardized and a legal distinction as to liability as between the manufacturer and retailer should not exist.

We find a sharp conflict in the authorities on the point now before us. These cases and conflicts have been considered and dealt with by Mr. Williston in his recent work on Sales. In Volume 1 (Rev. Ed.) page 635, he holds the weight of authority viz.:

'The imposition of absolute liability upon a dealer who sells canned goods of reputable manufacture has been denied in a few decisions on the ground that the seller cannot possibly discover that a particular can is defective, and that it is,...