Young v. Great Atlantic & Pacific Tea Co.

• Decision Date: 24 June 1936
• Docket Number: No. 8200.,8200.
• Parties: YOUNG v. GREAT ATLANTIC & PACIFIC TEA CO.
• Court: U.S. District Court — Western District of Pennsylvania

15 F. Supp. 1018

YOUNG v. GREAT ATLANTIC & PACIFIC TEA CO.

No. 8200.

District Court, W. D. Pennsylvania.

June 24, 1936.

E. P. Curran and Austin L. Staley, both of Pittsburgh, Pa., for plaintiff.

Smith, Buchanan, Scott & Ingersoll (by William H. Eckert) and William J. Kyle, Jr., all of Pittsburgh, Pa., for defendant.

McVICAR, District Judge.

Plaintiff's wife purchased at one of the retail stores of the defendant, located in West View, Allegheny county, a jar of raspberry preserves. The following morning the jar was placed upon the breakfast table for use. The plaintiff opened the jar and spread some of the preserves on a slice of bread which he ate. He then placed some more of the preserves on a second slice, and while eating said slice his teeth came in contact with something which felt to him like a gummy substance, about the size of a half dollar. He took this substance from his mouth, washed it under a water spigot, and discovered that it had some meat therein with hair, which was subsequently discovered to be part of a mouse. After the washing thereof he became nauseous and vomited several times. This continued for some time thereafter, and he was disabled wholly from doing any work for a time and partially disabled for some time thereafter. He brought this action against the defendant in assumpsit based upon an implied warranty that the article sold was merchantable.

At the trial the defendant submitted a request for binding instructions. This point was reserved and the verdict of the jury was taken subject to the decision thereof. The jury returned a verdict in favor of the plaintiff in the sum of $400. The case is now before us on plaintiff's motion for a new trial and on defendant's motion for verdict and judgment on the point of law reserved. Defendant contends that there was no privity of contract between the plaintiff and the defendant for the reason that the purchase was made by plaintiff's wife and not by the plaintiff. This contention is not sustained.

In Dublino v. Natale, 118 Pa.Super. 301, 304, 179 A. 821, 822, it is stated: "The primary presumption, when a wife takes up necessaries for the family of her husband and herself, is, that she is acting as his messenger or agent, for on him lies the primary duty of furnishing and paying for them. The evidence must overcome this presumption and satisfy the jury that she is acting in her own right, in order to bind her separate estate." See Nock v. Coca Cola Bottling Works of Pittsburgh, 102 Pa.Super. 515, 156 A. 537.

The Pennsylvania Act of May 4, 1889, P.L. 87, § 1 (69 P.S.Pa. § 123 note), provides: "In every sale of green, salted, pickled or smoked meats, lard and other articles of merchandise, used wholly or in part for food, said goods or merchandise shall correspond in kind and quality with the description given, either orally or in writing, by the vendor; and in every sale of such goods or merchandise * * * there shall be an implied contract or undertaking that the goods or merchandise are sound and fit for household consumption."

There was no evidence in this case for whom plaintiff's wife was acting when she purchased the jar of raspberry preserves, but there was evidence on which the jury could find that said preserves were a necessary; if so, plaintiff's wife would be presumed to be acting as the plaintiff's agent in the making of the purchase.

Defendant contends that there is no implied warranty by a retailer of goods that the same are merchantable who sells the same in a sealed container. This contention cannot be sustained. The Uniform Sales Act of Pennsylvania (Act of May 19, 1915, P.L. 543, § 15, par. 2 69 P.S. Pa. § 124, par. 2) provides exceptions to the general rule that there is not a warranty by the seller of goods, which exception is: "Second. Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality."

In Ryan v. Progressive Grocery Stores, 255 N.Y. 388, 392, 175 N.E. 105, 106, 74 A. L.R. 339, the court in an opinion by Mr. Justice Cardozo said: "Under the common-law rule long in force in this state, the warranty of merchantable quality was limited to sales by a manufacturer or grower. Hargous v. Stone, 5 N.Y. 73; Hoe v. Sanborn, 21 N.Y. 552, 78 Am.Dec. 163; Bartlett v. Hoppock, 34 N.Y. 118, 88 Am. Dec. 428; Carleton v. Lombard, Ayres & Co., 149 N.Y. 137, 43 N.E. 422; Bierman v. City Mills Co., 151 N.Y. 482, 45 N.E. 856, 37 L.R.A. 799, 56 Am.St.Rep. 635; Howard Iron Works v. Buffalo Elevating Co., 113 App.Div. 562, 99 N.Y.S. 163; Id. 188 N.Y. 619, 81 N.E. 1166; Williston, Sales, vol. 1, §§ 232, 233. ...