Swengel v. F. & E. Wholesale Grocery Co.
| Decision Date | 09 April 1938 |
| Docket Number | 33746. |
| Citation | 77 P.2d 930,147 Kan. 555 |
| Parties | SWENGEL v. F. & E. WHOLESALE GROCERY CO. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Where a dealer sells food for immediate human consumption, purchaser may rely on implied warranty that food is wholesome and not deleterious, and, in event purchaser sustains injuries from consumption of food, he may waive any tort and maintain action on implied warranty.
Where food for human consumption is packed or manufactured and, by a series of transactions, reaches retail dealer who sells to consumer, packer or manufacturer, each intermediate dealer and retailer impliedly warrant that food is wholesome and fit for immediate human consumption.
The rule of implied warranty of fitness of food for human consumption applies to food sold in sealed packages containers, or cans, as well as to food sold in bulk.
The burden of proving a breach of implied warranty of fitness of food for human consumption is on the plaintiff, and is not sustained simply by showing that plaintiff consumed particular article of food complained of and subsequently became ill.
To sustain burden of proving breach of implied warranty of fitness of food for human consumption, proof must show facts and circumstances leading definitely to conclusion that food was unwholesome and unfit for human consumption and that plaintiff's illness was caused by consumption thereof.
In action against wholesaler for damages caused from drinking sauerkraut juice, which was not manufactured by wholesaler and which was purchased by plaintiff's husband from retailer, plaintiff's burden was sustained by evidence that cans, in which juice was contained, were discolored that there were metallic particles in juice, that juice was dark and turbid and had a bad odor, that plaintiff was the only one in the family who took any of the juice and the only one who became sick, and that she had used sauerkraut juice for some years without becoming ill.
In action against wholesaler for damages caused from drinking sauerkraut juice purchased by plaintiff's husband from retailer, evidence supported answers to special questions that wholesaler did not manufacture juice, that illness of plaintiff was caused by drinking juice of unwholesome quality, that juice contained iron poisoning, and that food poisoning, and not an allergy, caused illness.
In action against wholesaler for damages caused from drinking sauerkraut juice purchased by plaintiff's husband from retailer, answers to special questions that wholesaler did not manufacture juice, that illness of plaintiff was caused by drinking juice of unwholesome quality, that juice contained iron poisoning, and that food poisoning and not an allergy caused illness, were not inconsistent.
In action against a wholesaler for damages caused from drinking sauerkraut juice purchased by plaintiff's husband from retailer, answers to special questions that wholesaler did not manufacture juice, that illness of plaintiff was caused by drinking juice of unwholesome quality, that juice contained iron poisoning, and that food poisoning and not an allergy caused illness, were not inconsistent with general verdict for plaintiff.
1. In any case where a dealer sells articles of food for immediate human consumption, the purchaser may rely upon an implied warranty that such articles are wholesome and not deleterious, and in the event he sustains injuries from consumption thereof, he may waive any tort there may have been and maintain his cause of action upon such implied warranty.
2. Where articles of food for human consumption are manufactured or packed by a manufacturer or packer and by a series of transactions reach a retail dealer who sells to the consumer the manufacturer or packer, each intermediate dealer, and the retail seller impliedly warrant that such articles of food are wholesome and fit for immediate human consumption.
3. The rule of implied warranty of fitness of food for human consumption applies whether the articles of food are sold in bulk or in sealed packages or containers.
4. The burden of proving a breach of the implied warranty is on the plaintiff and is not sustained simply by showing that plaintiff consumed the particular article of food complained of and subsequently became ill. The proof must show facts and circumstances leading definitely to the conclusion the food was unwholesome and not fit for human consumption and that plaintiff's illness was caused by the consumption thereof.
5. Answers to special questions and the record in connection therewith examined, and held, the answers are supported by the evidence; they are not inconsistent with each other; and they are not inconsistent with the general verdict.
Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.
Action by Gertrude Swengel against the F. & E. Wholesale Grocery Company to recover for damages allegedly sustained from consumption of canned sauerkraut juice, which had been purchased by plaintiff's husband from a retail grocery store to which the defendant had sold it. From an adverse judgment, the defendant appeals.
Judgment affirmed.
Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L. Morris, George B. Powers, Carl T. Smith, C. H. Morris, and John F. Eberhardt, all of Wichita, for appellant.
William J. Wertz, Vincent F. Hiebsch, and Forest V. McCalley, all of Wichita, for appellee.
This was an action to recover for damages alleged to have been sustained from consumption of canned sauerkraut juice, and from an adverse judgment the defendant appeals.
Omitting allegations not material to the appeal, plaintiff alleged that defendant, a wholesale grocery company, had sold certain Libby's sauerkraut juice put up in cans to Mabel McCully, who conducted a retail grocery store in Wichita, Kan., representing that the juice was fit for use and immediate human consumption; that plaintiff bought five cans of the juice from the McCully store, and partook of the contents of one can; that the juice was not fit for human consumption or immediate use and contained harmful ingredients; that plaintiff, as a result of using the juice, suffered illness and injuries for which she sought damages. The gist of the answer, aside from a general denial, was that defendant did not at any time engage in packing or canning kraut juice, nor did it pack the kraut juice alleged to have caused injury to plaintiff, and if it did sell the kraut juice to Mabel McCully, as alleged in the petition, it had no opportunity of inspecting or opening the can of kraut juice for inspection to ascertain the condition of the contents.
As far as now need be noticed, the proof showed that Mrs. McCully purchased the particular kraut juice from the defendant; that plaintiff's husband went to the McCully store, where other brands were also sold, and purchased five cans of Libby's kraut juice, which he took home. A few days later, his wife opened one can, the lid was corroded and had black spots around it, and she dumped the contents in the sink. She opened three more cans, and the lids being in the same condition, she poured the contents in a milk bottle and did not use them. She opened the fifth can, and it appearing all right, she poured out a teaglassful and, after drinking about half of it, noticed particles in it. She poured the remainder of the can in the glass and found the bottom of the can was in the same condition as the other cans. The family, consisting of herself, her husband and two children, all partook of the same meal that evening, although she alone drank any of the juice. The next morning her eyes began to swell and thereafter she was ill. There is no contention she was not seriously ill for some days, and we need not detail any evidence with respect thereto. There was proof that the juice had particles or flakes in it, which some of the witnesses said were like tin or a metal of some kind. We will not detail the evidence showing that the cans were ultimately returned to the packer and the evidence tending to show that the cans were not defective and that the juice therein was not unfit. The jury returned a verdict for plaintiff and answered special questions as follows:
Defendant's various post-trial motions were denied, and it appeals.
The appellant presents four questions for consideration. The first two presented together are: Does an implied warranty of fitness for human consumption exist between a wholesale grocer and the wife of a purchaser from a retail dealer in sales of canned goods in their original packages? And does such implied warranty exist when the purchaser requests the dealer to supply him with the particular food of which complaint is made?
On the assumption that this appeal is the first of its type to reach this court, and therefore novel, appellant in its brief calls our attention to many authorities with reference to implied warranty of fitness for human...
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...cases, citing Lukens v. Freiund, 27 Kan. 664; Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 38 A.L.R.2d 887; Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P.2d 930. For other cases employing the public policy factor to discard privity, see Blanton v. Cudahy Packing Co., 154 Fla.......
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