Walker v. Great Atlantic & Pacific Tea Co.

• Decision Date: 12 January 1938
• Docket Number: No. 7263.,7263.
• Citation: 112 S.W.2d 170
• Parties: WALKER v. GREAT ATLANTIC & PACIFIC TEA CO
• Court: Texas Supreme Court

112 S.W.2d 170

WALKER v. GREAT ATLANTIC & PACIFIC TEA CO

No. 7263.

Supreme Court of Texas.

January 12, 1938.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by Hoyt Walker against the Great Atlantic & Pacific Tea Company to recover damages for injuries allegedly sustained as result of food poisoning. To review a judgment of the Court of Civil Appeals, 104 S.W.2d 627, reversing a judgment of the trial court for plaintiff, plaintiff brings error.

Judgment of the Court of Civil Appeals reversed and that of the trial court affirmed.

Kirby, King & Overshiner, of Abilene, for plaintiff in error.

Touchstone, Wight, Gormley & Price, of Dallas, for defendant in error.

MARTIN Commissioner.

The parties will carry here their trial court designation.

Plaintiff purchased from defendant a can of corn labeled: "Iona Brand Corn, Distributors, The Great Atlantic and Pacific Tea Company, New York, net weight 11 ounces." After eating this and other foods, all participants at a dinner became ill. A physician was immediately called and diagnosed the illness as ptomaine, or food, poisoning. Suit was filed by plaintiff for damages to himself and wife, upon the theory of negligence, and of an implied warranty by defendant of the quality and fitness of the corn for human consumption. Both theories were submitted and upon the jury findings judgment was entered for plaintiff. This judgment was reversed and rendered by the Eastland Court of Civil Appeals. See 104 S.W.2d 627. The substance of that court's holding was that since defendant was shown to be only a distributor without knowledge or means of knowledge of the unfitness of the corn for human consumption, there was no liability upon either theory of recovery. We notice only that of implied warranty. There has been a sharp diversity of opinion among the courts of the United States as to the liability of a retailer, who purchases sealed cans or packages of food from a reputable manufacturer, and sells same to the public in the original containers as purchased.

The two conflicting views are well stated in the following quotations from eminent authorities:

"While there is authority to the contrary, it comports better with justice to hold that where a dealer sells to his customer an article in the original package in which it is put up by the manufacturer, and the customer knows as much about the article as the dealer, and buys it without any representation from the dealer or reliance upon his judgment, knowing that there has been no inspection of it by the dealer, there is no implied warranty, although the dealer knows that the customer buys it for food." 11 R.C.L. p. 1124.

"The imposition of absolute liability upon a dealer who sells canned goods of reputable manufacturer has been denied by the Supreme Court of Maine on the ground that the seller cannot possibly discover that a particular can is defective, and that it is, therefore, unjust to subject him to liability. The same argument, however, may be made in regard to any implied warranty, not only of food, but of other articles where the seller could not discover the defect. Accordingly, if canned goods are to be made an exception to the general rule governing sales of food, the whole law of implied warranty should be revised and placed on the basis of negligence. But the general principle of the common law is opposed to this, and certainly if a dealer is ever to be made liable for injuries caused by defective goods where he has been guilty of no fault, the reasons are stronger for holding him liable for selling defective food than in any other kind of sale. According to the weight of authority, presumably for these reasons, a dealer is liable for selling such food even though in cans of reputable brand." 1 Williston on Sales, pp. 481 and 482.

Contemporary with the above opinion herein, the Kansas City Court of Appeals of Missouri decided, in a case whose controlling facts are identical with these, that a retailer was liable upon the theory of implied warranty. In that case, as in this, the name of the manufacturer was concealed, or at least not disclosed. We quote from this authority: "Under common law principles there is an implied warranty as between the retail dealer and the consuming purchaser in the sale of food, including a warranty of freedom from foreign substances which may be injurious to the latter. Apparently all of the authorities agree that there should be no exception in the case of the sale of food in cans or sealed packages, unless the ends of justice would be better served by making one. We are doubtful if such ends would be better served by denying the liability of the retail dealer. There is no doubt but that the retail dealer is in a better position to know and ascertain the reliability and responsibility of the manufacturer of the article, which he is handling, than the purchaser from him. To adhere to the general rule places the responsibility upon the party to the contract best able to protect himself and to...