Torpey v. Red Owl Stores, Civ. A. No. 4826.

• Decision Date: 21 February 1955
• Docket Number: Civ. A. No. 4826.
• Citation: 129 F. Supp. 404
• Parties: Emily W. TORPEY, Plaintiff, v. RED OWL STORES, Inc., Defendant.
• Court: U.S. District Court — District of Minnesota

129 F. Supp. 404

Emily W. TORPEY, Plaintiff, v. RED OWL STORES, Inc., Defendant.

Civ. A. No. 4826.

United States District Court, D. Minnesota, Fourth Division.

February 21, 1955.

Bergmann Richards, of Richards, Janes, Hoke, Montgomery & Cobb, Minneapolis, Minn., appeared in behalf of defendant in support of said motion.

Martin J. Ward, of Gleason, Ward, Orff & Johnson, Minneapolis, Minn., appeared in behalf of plaintiff in opposition thereto.

NORDBYE, Chief Judge.

The action was one to recover damages growing out of an injury to plaintiff incurred when plaintiff was pressing the cover back on a partly-used jar of applesauce sold by defendant to plaintiff's sister, Miss Mary Ward. Plaintiff's evidence showed that she was helping Miss Ward clear the table after a dinner at which part of the jar of applesauce had been eaten and, at Miss Ward's suggestion, returned the unused portion of applesauce to the opened jar. It is clear that plaintiff was resealing the jar in a careful and in the customary manner when it collapsed under her hand, causing severe lacerations of her hand and wrist. She alleged that such injuries have resulted in a permanent partial loss of motion of some of her fingers.

The complaint alleges both negligence on the part of defendant and breach of an implied warranty that the jar of applesauce was of merchantable quality and reasonably fit for the purpose for which said product and container were sold. The issues of negligence and implied warranty were submitted to the jury which returned a verdict for plaintiff. Accompanying this general verdict, the jury returned answers to special interrogatories which showed that, although there was a defect in the manufacture of the glass jar which rendered the use of the jar dangerous to persons who would use it in the manner in which such jar would ordinarily be used, defendant did not fail to exercise reasonable care to ascertain the defect. It found, however, that the purchaser of the applesauce relied upon the skill and judgment of the seller that it would be reasonably fit for its intended purpose, that the jar was not reasonably fit for that purpose, and that the defect which rendered it unfit proximately caused plaintiff's injuries.

The grounds for defendant's motions are (1) that the evidence does not establish facts sufficient to sustain a verdict for plaintiff, (2) that plaintiff cannot recover on implied warranty because there is no privity of contract between her and defendant, (3) that the evidence is insufficient to sustain a finding that the jar was not reasonably fit for its intended purpose, (4) that the evidence is insufficient to show that the fracture of the jar was the result of the alleged weakness therein, (5) that the evidence is insufficient to show that any defect was the proximate cause of plaintiff's injuries, and (6) that the Court erred in instructing the jury that contributory negligence is not a defense to a suit on implied warranty. As to the grounds numbered (1), (3), (4), and (5), the testimony of plaintiff's expert, Mr. Cartier, clearly indicated that the jar in question was considerably thinner at the transition zone, that is, that area where the sides of the jar curve into its base, than it was throughout the sides of the vessel. His testimony indicated that this transition zone was, on the average, one-third thinner than the wall area directly above it, and since the transition zone would be the area which would be subject to the maximum pressure when the cap was being replaced in the ordinary manner, this jar was defective for the purpose for which it was plainly intended. His testimony was, in addition, that the fracture of the jar in question did actually originate in that transition zone, and there is no persuasive evidence to indicate that any external force entered into, or was the cause of, the fracture. Thus the jury's findings that the jar was not reasonably fit for its intended purpose and that this was the proximate cause of plaintiff's injuries have abundant support in the record. The Court cannot perceive any prejudicial error in its instruction that contributory negligence would not be a defense to a breach of an implied warranty. Although there may be some conflict of authority upon this issue, see Brown, The Liability of Retail Dealers for Defective Food Products, 23 Minn. L.Rev. 585, 602-603 (1939), it could not have prejudiced defendant in any event, since there was no substantial evidence in the case of any contributory negligence. Therefore, as the Court indicated at the conclusion of the arguments on this motion, the only real issue is whether plaintiff is entitled to recover on the theory of implied warranty.

The State of Minnesota has adopted the Uniform Sales Act, which provides that there is no implied warranty or condition as to the quality of goods supplied under a contract to sell except as there specifically provided. Minn.Stat. § 512.15 (1953), M.S.A. However, that Act does provide that,

"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose."

There would be no room for any contention that defendant herein was not apprised that the jar of applesauce was sold for the purpose of consumption and that necessarily included the use to which the buyer would put the article sold in the acts of opening and probably resealing the cap on the jar. However, there are several substantial obstacles to plaintiff's claim for relief. In order to hold that plaintiff is entitled to recover in this action, the Court must conclude, first, that the purchaser of the applesauce relied in some manner upon the judgment of the seller as to whether or not the article purchased would be reasonably fit for its intended purpose, second, that the warranty, if there was one, extended not only to the product itself, but to the container in which it was sold, and third, that the benefits of that warranty can be availed of by a complete stranger to the contract of sale.

The Court submitted the question of reliance to the jury which found that the buyer of the applesauce did rely upon the skill and judgment of the seller. However, it seems upon further consideration that the question was not one upon which the jury should have been allowed to speculate. The basic facts and circumstances of the purchase were not in dispute. The evidence showed that Miss Ward herself made the decision to purchase Mott's applesauce rather than another brand and selected that brand from the shelf without any advice from the defendant or its agents. The only question was whether such admitted facts permitted an inference of reliance upon the seller's skill and judgment.

Many courts have held as a matter of law that such facts do not constitute the kind of reliance which will authorize the finding of an implied warranty. The test as to when a warranty of reasonable fitness will be implied has been well stated in American Player Piano Co. v. American Pneumatic Action Co., 1915, 172 Iowa 139, 152, 154, 154 N.W. 389, 393,

"The distinction between the cases in which a warranty is implied and where it is not implied is that in one case a person buys a distinct thing, an exact article, and gets the thing he bargained for. He cannot complain that it does not accomplish the purposes for which he purchased it, although he communicated that purpose to the seller. In such cases he takes his own risk as to the fitness of the thing for the intended purpose, and no warranty is implied. * * * The other case is where one buys an article to be used for a certain purpose, and the seller undertakes to furnish him the article required. * * * The distinction is between the manufacture and supply of an article to satisfy a required purpose, and the manufacture or supply of a specified, described, and defined article. In one case there is an implied warranty, and in the other there is none."

See, also, Conkling v. Standard Oil Co., 1908, 138 Iowa 596, 116 N.W. 822. It has been held by the late Justice Cardozo, in Ryan v. Progressive Grocery Stores, 1931, 255 N.Y. 388, 175 N.E. 105, 106, 74 A.L.R. 339, a case substantially similar to the one at bar, that there was no warranty of reasonable fitness in a sale of a defective loaf of bread, for "there can be no inference of reliance where the buyer selects the brand and gets what he selects." Finally, the Supreme Court of Minnesota in Iron Fireman Coal Stoker Co. v. Brown, 1931, 182 Minn. 399, 400, 234 N.W. 685, has construed the statute now under consideration as merely a restatement of the common law rule that where there is a sale of a known and defined article, and if that article is in fact supplied, there is no implied warranty. In so doing it pronounced the following rule,

"The spirit and intent of subdivision 4 of the statute is that the seller is not held to an implied warranty because the buyer gets the distinct thing selected by him, an exact article, for which he bargains. So, acting upon his own desires, he takes his own chances as to the fitness of the article, and should not be permitted to complain of the seller who has supplied him with the very thing he sought. B. F. Sturtevant Co. v. LeMars Gas Co., 188 Iowa 584, 176 N.W. 338. In such cases it is not important that the buyer discloses to the seller his intentions as to the use of the article. * * * Or, to state it another way, if the thing is itself specifically selected and ordered, the buyer takes upon himself the risk of its effecting the desired purpose. Under such circumstances, the law does not impose an implied warranty; nor should it."

This question of reliance is raised, of course, whenever one seeks to hold liable a mere retail dealer for injuries...