Tedder v. Pepsi-Cola Bottling Co. of Raleigh, N. C., PEPSI-COLA

Decision Date10 May 1967
Docket NumberK-M,PEPSI-COLA,No. 541,541
CourtNorth Carolina Supreme Court
PartiesElla Mae TEDDER v.BOTTLING COMPANY OF RALEIGH, N.C., Inc. and Colonial Stores, Inc., t/aart Foods.

Yarborough, Blanchard, Tucker & Yarborough, Raleigh, for plaintiff appellant.

Teague, Johnson, Patterson, Dilthey & Clay, by I. Edward Johnson, Raleigh, for defendant Bottling Co.

Smith, Leach, Anderson & Dorsett by Henry A. Mitchell, Jr., Raleigh, for defendant Colonial Stores.

HIGGINS, Justice.

The testimony presented at the trial was free from material conflict. The President of Pepsi-Cola Bottling Company of Raleigh, N.C., Inc. was adversely examined as plaintiff's witness. He testified: 'During the month of June, 1965, we would run 200,000 bottles per day. It is not uncommon to run 10,000 cases or 240,000 bottles a day on the equipment. * * * during the month of June, 1965, to my knowledge we received no complaint from anyone saying that they had purchased Pepsi or Diet Pepsi containing foreign or deleterious substance.' During the month, approximately 8 million bottles were filled. Under the rules heretofore applied, liability of the bottler on the basis of negligence is not established by showing that one bottle out of 8 million contained a deleterious substance. Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Collins v. Lumberton Coca-Cola Bottling Co., 209 N.C. 821, 184 S.E. 834; Jenkins v. Harvey C. Hines Co., 264 N.C. 83, 141 S.E.2d 1.

If the bottling company is to be held liable in this case, it must be on implied warranty. The cases are many which hold that warranty of fitness, either express or implied, is contractual; that the contract extends no further than the parties to it and that privity to the contract is the basis of liability. Murray v. Bensen Aircraft Corp., 259 N.C. 638, 131 S.E.2d 367; Terry v. Double Cola Bottling Co., 263 N.C. 1, 138 S.E.2d 753. However, our Court has heretofore relaxed the privity rule in certain cases involving food and drink because of their importance to health. 'Authorities generally hold that the manufacturer, processor and packager of food and the bottler of drinks intended for human consumption are held to a high degree of responsibility to the ultimate consumer to see to it that the food and drink are not injurious to health.' Terry v. Double Cola Bottling Co., supra. The liability generally has been based on negligent failure to discharge this high degree of responsibility. However, in Terry, liability to the consumer on warranty (contract law) may arise if the warranty is by representation addressed to the ultimate consumer by label attached to the container. See also Perfecting Service Co. v. Product Development & Sales Co., 261 N.C. 660, 136 S.E.2d 56.

To a certain extent, the Court has already chipped away some of the rigidity which heretofore has limited warranty liability to the parties to the contract. The limitation of warranty to the contracting parties has been under vigorous assault over all the country. The assault has been successful in all but a few jurisdictions. See Prosser, The Assault Upon The Citadel, 69 Yale L.J. 1099; 50 Minn.L.Rev. 791; 18 Hastings L.J. 9; 36 S.Cal.L.Rev. 291; 16 Baylor L.Rev. 337; 37 Mich.L.Rev. 1; 19 N.C.L.Rev. 551; 24 Va.L.Rev. 134; 74 A.L.R.2d 1111. In addition, see many authorities cited and discussed by Sharp, J., concurring in Terry v. Double Cola Bottling Co., 263 N.C. 1, 138 S.E.2d 753; 77 A.L.R.2d 215. In these citations, hundreds of cases are listed.

Under our present rules, this is where we are in the sale of food and drink for human consumption. The retailer sells to the consumer under implied warranty of fitness. For breach of that warranty the damaged consumer may recover. The retailer bought the product under an implied warranty of fitness from the jobber, whom he may hold for breach of warranty. The jobber, in line, by showing loss, may go back to the manufacturer, processor, or bottler on whom the final responsibility rests. Step by step the liability goes back to the source. Perfecting Service Co. v. Produce Development & Sales Co., supra; Ashford v. H. C. Shrader Co., ...

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  • Quadrini v. SIKORSKY AIRCRAFT DIVISION, ETC., Civ. No. B-74-81.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 6, 1977
    ...Motion for Leave to File Memorandum of Law, Exhibit A. 4 Other North Carolina cases on this subject are: Tedder v. Pepsi-Cola Bottling Co., 270 N.C. 301, 154 S.E.2d 337 (1967); Terry v. Double Cola Bottling Co., 263 N.C. 1, 138 S.E.2d 753 (1964); Alexander Funeral Home, Inc. v. Pride, 261 N......
  • Traxler v. PPG Indus., Inc., CASE NO. 1:15 CV 912
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • January 27, 2016
    ...however, does not involve personal injuries. North Carolina has also recognized an exception for foodstuffs. Cf. Tedder v. Bottling Co. , 270 N.C. 301, 154 S.E.2d 337, 339 (1967).22 The third-party beneficiary exception that Washington recognizes is discussed infra Part(b)(v).23 Contrary to......
  • Bernick v. Jurden, 36A81
    • United States
    • United States State Supreme Court of North Carolina
    • July 13, 1982
    ...the retailer against the distributor, and the distributor, in turn, against the manufacturer, see Tedder v. Bottling Co., supra, 270 N.C. 301, at 305, 154 S.E.2d 337, at 339, is unnecessarily expensive and wasteful." 298 N.C. at 500-501, 295 S.E.2d at The consuming public ordinarily relies ......
  • Kinlaw v. Long Mfg. N. C., Inc., 33
    • United States
    • United States State Supreme Court of North Carolina
    • November 6, 1979
    ...Simpson doctrine that a manufacturer's courting of the purchaser may serve as a vehicle for warranty liability. In Tedder v. Bottling Co., 270 N.C. 301, 154 S.E.2d 337 (1967), this Court allowed a plaintiff allegedly injured by a contaminated soft drink to maintain an implied warranty actio......
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