Vaccarino v. Cozzubo

• Decision Date: 08 April 1943
• Docket Number: 54.
• Citation: 31 A.2d 316,181 Md. 614
• Parties: VACCARINO v. COZZUBO.
• Court: Maryland Court of Appeals

31 A.2d 316

181 Md. 614

VACCARINO v. COZZUBO.

No. 54.

Court of Appeals of Maryland

April 8, 1943

Appeal from Court of Common Pleas of Baltimore City; Edwin T Dickerson, Judge.

Suit by Joseph Cozzubo against Isidore Vaccarino to recover damages because of breach of alleged implied warranty that sausage sold by defendant and eaten by plaintiff, was wholesome and fit for human consumption. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed, and new trial awarded.

James C. Burch and L. Wethered Barroll, both of Baltimore, for appellant.

Palmer R. Nickerson and Gordon G. Power, both of Baltimore (Due, Nickerson & Whiteford, of Baltimore, on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY GRASON, MELVIN, and ADAMS, JJ.

DELAPLAINE Judge.

Joseph Cozzubo, of Baltimore, instituted this suit on contract against Isidore Vaccarino, a retail dealer operating a grocery and meat store on South High Street in Baltimore, to recover damages caused by a breach of an alleged implied warranty that certain sausage, which was sold by the defendant and eaten by the plaintiff, was wholesome and fit for human consumption. The jury rendered a verdict in favor of the plaintiff for $2,000. Vaccarino is appealing from the judgment entered on the verdict.

On October 22, 1940, Cozzubo's wife gave some money to their daughter, Lucy, 11 years old, and told her to buy some sausage at Vaccarino's store. The little girl bought a pound of Italian-style sausage from Vaccarino, and Mrs Cozzubo cooked it for supper. Six days later Cozzubo became ill, and several days later his wife and child also became ill. They were removed to a hospital, where their disease was diagnosed as trichinosis. Trichinosis is a disease caused by trichinae, nematodes which are occasionally found in pork and which breed in the human body causing muscular swelling, pain and fever. The disease prevented Cozzubo from returning to his employment as a stevedore, and it was not until nearly a year later that he was able to do even light work.

It was vigorously contended that there was no privity of contract between the plaintiff and the defendant. The law is well settled that an action cannot be maintained on an implied warranty where there is no privity of contract. Poplar v. Hochschild, Kohn & Co., 180 Md. 389, 393, 24 A.2d 783. Accordingly an implied warranty of wholesomeness of food does not inure to the benefit of any consumers other than the purchaser, for any such consumers have no privity of contract with the seller.

Flaccomio v. Eysink, 129 Md. 367, 379, 100 A. 510; Hanback v. Dutch Baker Boy, 70 App.D.C. 398, 107 F.2d 203. But it is the clear legal duty of a husband to support his wife and supply her with necessaries suitable to her situation and his own circumstances in life. It is a fundamental rule of the common law that a wife, while living with her husband, is presumed to have authority from him to purchase the supplies which are ordinarily required for family use. Lord Abinger laid down the rule as follows: 'Where a wife is living with her husband, and where, in the ordinary arrangements of the husband's household, she gives orders to tradesmen for the benefit of her husband and family, and these orders are proper and not extravagant, it is presumed that she has the authority of her husband for so doing. This rule is founded on common sense, for a wife would be of little use to her husband in their domestic arrangements if she could not order such things as are proper for the use of a house and for her own use without the interference of her husband. The law, therefore, presumes that she does this by her husband's authority.' Emmett v. Norton, 8 Car. & P. 506. The presumption that the wife, as manager of the household and agent for her husband, is authorized to purchase necessaries for the appropriate maintenance of the home arises from the fact of their living together, and the presumption may be rebutted only by proof that the purchase was made without his authority, real or apparent, and without his subsequent assent. Adkins v. Hastings, 138 Md. 454, 464, 465, 114 A. 288; Brown v. Durepo, 121 Me. 226, 116 A. 451, 27 A.L.R. 551, 553. The Maryland Act, which prescribes the mutual rights and liabilities of husband and wife, declares that nothing in the Act shall be construed to relieve the husband from liability for debts or contracts which his wife may incur or enter into upon the credit of her husband or as his agent, or for necessaries for herself or for his or their children; but as to all such cases his liability shall continue as at common law. Acts of 1898, ch. 457, § 20, Code, art. 45, § 21. In the present case the wife and daughter of Cozzubo were acting as his agents in helping him to carry out his obligation to support and maintain the family. We therefore hold that privity of contract did exist between the plaintiff and the defendant.

The principal issue presented on this appeal is whether the trial Court properly instructed the jury as to the liability of the storekeeper to the purchaser. The general rule has been established in Maryland and by the weight of authority in the United States that where a retail dealer sells food for immediate domestic consumption, there is an implied warranty that the food is wholesome and fit for the purpose for which it is sold. Flaccomio v. Eysink, 129 Md. 367, 381 100 A. 510, 515. While the rule of caveat emptor has generally been applied to the sale of merchandise, the Courts have considered the prevention of the sale of unwholesome foods by retail dealers to be of such vital importance to the public health that they have recognized an exception in such cases, holding such a dealer liable on an implied warranty of wholesomeness, even though he did not know it was unwholesome at the time he sold it. It is reasoned that a dealer has more opportunity to ascertain the quality of articles of food offered for sale than is afforded to the purchaser, and it would be for the public welfare to impose upon the dealer the liability of an insurer by means of an inference of law, rather than to make the purchaser assume the risk. Moreover, the law places the responsibility upon the party who is better able to protect himself in case of loss, because the dealer comes in closer touch with growers,...