Birmingham Chero-Cola Bottling Co. v. Clark
89 So. 64
Ala.
1921
Check Treatment

Lead Opinion

ANDERSON, C. J.

The question involved upon this appeal is whether or not this defendant, who prepared and put upon the market a bottle of beverage, purchased by the plaintiff from an intermediate dealer, and who was made sick from drinking same, because it contained a fly, can recover in an action ex contractu as for the breach of an implied warranty, or is confined to an action of tort for negligence.

[1] The warranty of the seller of personal property does not, as a rule, impose any liability upon him as to third persons who are in no way a party to the contract. 24 R. C. L. p. 158, § 431. The common-law doctrine of Covenants running with the land applies only to real estate, and it is well settled as a common-law rule that the benefit of a warranty does not run with the chattel on its resale so as to give the subpurchaser any right of action thereon as against the original seller. 24 R. C. L. p. 159; Salle v. Light’s Ex’rs, 4 Ala. 700, 39 Am. Dec. 317.

[2] It is also stated as a rule of law that a manufacturer or seller is not liable to third persons who have no contractual relations with him for negligence in the construction, manufacture, or sale of articles manufactured or sold. To this rule the courts have very generally recognized exceptions as to articles of a dangerous or obnoxious character, unwholesome foods, etc. Lula Jones v. Gulf States Steel Co., ante, p. 291, 88 South. 21.

[3] As it ordinarily is stated, an act of negligence of a manufacturer or seller, which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third persons who suffer from the negligence regardless of the privity of contract. The basis for this rule, however, is found in tort, and not in contract.

“It has been observed that the real ground of liability of the seller to an ultimate consumer is, more properly speaking, a duty one owes to the public not to put out articles to be sold upon the markets for use injurious in their nature, of which the general public have no means of inspection to protect themselves.” 24 R. G. L. § 808, p. 514; Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S. W. 155, L. R. A. 1916B, 877, Ann. Cas. 1917B, 572; Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 560, Ann. Cas. 1913B, 689; Valeri v. Pullman Co. (D. C.) 218 Fed. 519.

The case of Dothan Chero-Cola Bottling Co. v. Weeks, 16 Ala. App. 639, 80 South. 734, by the Alabama Court of Appeals, and which seems to have been followed by the trial court, is not in line with the best-considered cases. Indeed, the only case which we have found that supports the holding in said case, is the Mississippi case of Jackson Coca-Cola Co. v. Chapman, 106 Miss. 864, 64 South. 791. This cake seems to be rested exclusively upon the case of Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152, 1 L. R. A. (N. S.) 1178, 110 Am. St. Rep. 157. We do not construe this Watsou Case, supra, as holding that the plaintiff could recover upon an implied warranty, as it is there said:

“The duty not negligently to injure is due by the manufacturer, in a case of the particular character of the one under consideration, not merely to the dealer to whom he sells his product, but to the general public for whom his wares are intended” — citing Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 5 L. R. A. 612, 20 Am. St. Rep. 324.

The opinion in this last ease is also in line with the authorities which hold that the plaintiff must recover in tort, and not contract, as the opinion says:

“The liability of the plaintiff in error to the person injured arises, not by contract, but for a wrong committed by the proprietor in the prescription and direction as to the dose that should be taken.”

Our recent case of Bellingrath v. Anderson, 203 Ala. 62, 82 South. 22, was an action in tort for the negligence of the defendant, who was the manufacturer of the beverage.

The action of the trial court in overruling the defendants’ demurrer to amended count 1, as well as in instructions given and refused, did not conform to the law, and the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

SAYRE, GARDNER, and MIDDER, JJ„ concur.



Addendum

On Rehearing.

ANDERSON, C. J.

Counsel in brief for rehearing have cited the case of Mazetti v *681 Armour & Co., 75 Wash. 622, 135 Pac. 633, 48 L. R. A. (N. S.) 213, Ann. Cas. 1915C, 140, as supporting the Dothan Chero-Cola Case, supra, and the Mississippi case of Jackson Coca-Cola Co. v. Chapman, 106 Miss. 864, 64 South. 791. This case was not cited upon the original consideration of this case, and was not discovered hy the court upon the investigation of this question. It does support the two cases, supra, and opposes the present holding; but it is not in line with the great weight of authority, including our own case of Jones v. Gulf States Steel Co., 88 South. 21. 1 An examination of the note in 48 L. R. A. (N. S.) 213, where said Washington Case is reported, and previous notes there referred to, will show that this case is opposed by the great weight of authority.

The application for rehearing is overruled.

SAYRE, GARDNER, and MILDER, JJ„ concur.

Notes

1

Ante, p. 221.