Smith v. Salem Coca-Cola Bottling Co., Inc.
| Decision Date | 03 March 1942 |
| Docket Number | No. 3310.,3310. |
| Citation | 25 A.2d 125 |
| Parties | SMITH v. SALEM COCA-COLA BOTTLING CO., Inc. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Blandin, Judge.
Assumpsit for alleged breach of warranty and case for alleged negligence brought by Ralph S. Smith against Salem Coca-Cola Bottling Company, Incorporated, for injuries received from swallowing glass while drinking bottled beverage. Trial court transferred questions without ruling to Supreme Court.
Questions answered in negative.
Assumpsit, for alleged breach of warranty, and case, for alleged negligence. It was agreed that the defendant bottled its product at Salem and sold it to an independent dealer at Manchester. From the latter the plaintiff purchased a bottle and took it to his home, where he opened it and was injured when, in drinking the contents, he swallowed several pieces of glass. Due and seasonable notice was given to the defendant. As to the plaintiff's right to go to the jury on the issue of negligence, the plaintiff was given permission to take the deposition of an officer of the defendant. Blandin, J., transferred without ruling the questions (1) whether the plaintiff may maintain his action on the count in warranty, and (2) whether the deposition, to be considered in the opinion, warrants submission to the jury of the issue of negligence.
John J. Broderick, of Manchester, for plaintiff.
Devine & Tobin, of Manchester (John E. Tobin, of Manchester, orally), for defendant.
I. The plaintiff contends that there has been a breach of implied warranty of fitness and merchantability under the Uniform Sales Act, P.L. c. 166, § 15, paragraphs 1 and 2. It is difficult to conceive that there is an implied warranty of merchantability to the consumer, who buys for use and not for resale. But however that may be, the question whether that implied warranty runs with the goods to other than immediate purchasers, would seem, from the similarity of the language in the two paragraphs mentioned, to be answered the same way in both instances. The warranty of fitness does not run with foods in general, but inures to the benefit of the immediate purchaser only. Hazelton v. First National Stores, Inc., 88 N.H. 409, 190 A. 280. A similar result was reached in the earlier case of Howson v. Foster Beef Company, 87 N.H. 200, 203, 177 A. 656, though in that case there was no question whether there might be an exception to the rule of privity in favor of members of the family of the purchaser of foods in general. So it has already been determined that there is no exception to the rule of privity because the goods are foods or because the ultimate consumer is a member of the family of the last purchaser. If the last purchaser is an agent of the injured consumer, the warranty is made directly to the consumer, since there is the privity of agency, but the consumer's right extends no further than to the dealer who sold to his agent. Wadleigh v. Howson, 88 N.H. 365, 189 A. 865. Only so far has the rule gone in this jurisdiction.
It is now contended that we should recognize an exception to the rule of privity where food or beverages are put out by the manufacturer or packer in original packages ready for consumption, and advertisements concerning value and quality are directed to the ultimate consumer. In such cases, it is argued, the producer looks necessarily to the sub-vendee (logically the plaintiff means whoever may consume the goods) for ultimate use, and makes his warranty accordingly. The consumer, by mere use, makes the market for the producer. Therefore, the argument runs, there is privity between these particular extremes of the marketing process. We have examined the line of cases and comment which in the past generation have declared or advocated such a rule. The states holding to this theory sometimes call it the majority rule, but we are satisfied that it is the minority rule. It has never had any...
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...Corp. v. General Motors Corp., Mun.App., D.C., 185 A.2d 919, citing many cases. For cases contra see, e. g., Smith v. Salem Coca-Cola Bottling Co., 92 N.H. 97, 25 A.2d 125, and Pelletier v. Dupont, 124 Me. 269, 128 A. 186, 39 A.L.R. 972; and for full discussion see Prosser, The Assault upon......
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