Welch v. Schiebelhuth

• Decision Date: 26 November 1957
• Parties: Elizabeth WELCH, James Welch, George Welch and James Welch v. David S. SCHIEBELHUTH, doing business as Village Bake Shop.
• Court: New York Supreme Court

Page 309

169 N.Y.S.2d 309

11 Misc.2d 312

Elizabeth WELCH, James Welch, George Welch and James Welch v. David S. SCHIEBELHUTH, doing business as Village Bake Shop.

Supreme Court, Special Term, Kings County, Part I.

Nov. 26, 1957.

Hoffman & Rubin, Brooklyn, for plaintiffs.

Samuel Schub, New York City, for defendant.

JACOB J. SCHWARTZWALD, Justice.

In an action to recover damages for personal injuries plaintiffs move to amend their complaint to allege for each of them an additional cause of action for breach of an implied warranty of quality and wholesomeness in the sale of food.

In substance the complaint presently alleges that one Joan Welch purchased a crumb custard cake from the defendant which was baked by the latter in his bakeshop; that her husband and guests of theirs (the husband's brother and mother) became ill as a result of eating the said cake which, upon analysis, was found to contain certain toxic matter deleterious to the human system. The proposed amendments allege, in addition to the above, that Joan Welch acted as agent for each of the plaintiffs and that the defendant implicitly warranted that the cake was reasonably fit for human consumption.

The defendant, citing Chysky v. Drake Bros. Co., Inc., 235 N.Y. 468, 139 N.Y. 576, 27 A.L.R. 1533, asserts that the holding therein is dispositive of plaintiffs' motion herein. It was there said, 235 N.Y. at page 472, 139 N.E. at page 578:

'The general rule is that a manufacturer or seller of food, or other articles of personal property, is not liable to third persons, under an implied warranty who have no contractual relations with him. The reason for this rule is that privity of contract does not exist between the seller and such third persons and unless there by privity of contract, there can be no implied warranty.'

It seems clear that our modern standards and criteria should not be encumbered with such an uncompromising rule and as a result 'the assault upon the citadel of privity' has rapidly developed (Ultramares Corp. v. Touche, 255 N.Y. 170, 180, 174 N.E. 441, 445, 74 A.L.R. 1139). Based upon the high regard which the law has for human life, the assault, especially in food cases, has become more vigorous. Acknowledging that the consequences to the consumer resulting from consumption of articles for immediate use may be disastrous and that if anyone must suffer it ought not be the one who has no opportunity of determining the condition of the article but rather the one who has at his command the means of doing so. The trend has been away from the Chysky case, supra, and other cases as Redmond v. Borden's Farm Products Co., 245 N.Y. 512, 157 N.E. 838 (where an infant was denied recovery, having been injured from broken glass in a bottle of milk sold to the mother), Smith v. Hanson, 228 App.Div. 634, 238 N.Y.S. 86 (where an infant was denied recovery on the ground that his mother was not his agent in purchasing cakes from the defendant) and Zotto v. Merkel, 229 App.Div. 793, 242 N.Y.S. 749 (where plaintiff husband was denied recovery for wrongful death of his wife, which was caused by her eating pork purchased by the husband from the defendant). The trend is towards greater enlightenment and it is predicted that the rule of privity will develop 'into one by which ultimately anyone who makes a contract with another will be liable to anyone who may be expected to be injured by a defective performance.' Dean Prosser, Arkansas Law Review, 1955, pp. 81, 88.

Upon this aspect of the case the more liberal view has been adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws. In their official draft of a Uniform Commercial Code (1952) provision is made in section 2-318 thereof that 'a seller's warranty, whether express or implied, extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty.'

The express purpose of this provision is to 'give the buyer's family, household and guests, the benefit of the same warranty which the buyer received in the contract of sale, thereby freeing any such beneficiaries from any technical rules as to privity.'

A similar recommendation was made by the Law Revision Commission of the State of New York in 1943. It recommended that section 98, subd. 1 of the Personal Property Law be amended to read as follows:

'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 the owner or manufacturer or not) there is an implied warranty that the goods shall be reasonably fit for such purpose. Liability on such warranty shall extend to the buyer's employees and to the members of his household, using the goods for such purpose with the buyer's consent express or implied.'

The foregoing amendment, however, has not yet been adopted by the Legislature of this state.

Significantly, the Legislature of the State of Connecticut has extended the breach of warranty protection to the 'members of the buyer's household' (1939 Supplement to the General Statutes, Ch. 232, Sec. 1276e).

The courts of this state and our sister states, despite their hesitancy to circumvent rules of law by artificial means, have created a path to protect the ultimate consumer by suiting the action to the word, the word to the action. Thus, in Klein v. Duchess Sandwich Co., 14 Cal.2d 272, 93 P.2d 799, the court reversed a judgment in favor of a restaurateur and a sandwich company where the sandwich company had prepared and delivered sandwiches to the restaurant and the plaintiff husband and his wife sued for injuries to the wife from eating a sandwich containing maggots. The court held that although the husband had actually made the purchase of the sandwich, the wife had 'sent' him into the restaurant for the express purpose of purchasing the sandwich of which she later ate a portion, and consequently she was, in effect, the buyer within the terms of the Sales Act. The court also specifically held that the existence of privity of contract was not an essential in an action brought by an ultimate consumer of food on the warranty theory, the warranty being construed as being intended not only for the benefit of the purchaser but also the ultimate consumer. The court reasoned that to sustain the defendants' contention construing the Sales Act as imposing a strict privity of contract on the consumer of assertedly unwholesome food as an essential requisite for bringing an action on the implied warranty theory would result in denying recovery to a father or mother of an infant child who purchased a bottle of unwholesome milk, or other deleterious food, for consumption by the child who subsequently became ill as a result of its consumption; that it was improbable that the Legislature, in adopting the act, ever intended or contemplated that such a construction would or could be placed upon the language of the particular section thereof creating the warranty; and that to allow a recovery by a third person who may have consumed unwholesome food purchased by another would not impose a greater burden on the manufacturer or on the immediate seller of the food than would be imposed if the original purchaser had been injured by reason of its consumption.

A similar result was arrived at in the State of...