28 A.2d 913 | Pa. | 1942
Lead Opinion
This is an action in assumpsit for breach of warranty on a sale of oysters in a sealed container by a retail dealer in foodstuffs. The court below gave binding instructions for defendant and the plaintiffs have appealed. We are of the opinion that, viewing the evidence in a light most favorable to the plaintiffs, the judgment should not have been entered.
Ida Bonenberger, the wife of Jacob Bonenberger, ordered from defendant by telephone a pint of canned oysters which were delivered at their home the following day. In preparing an oyster stew for the family, the wife emptied the can of oysters in a pan of milk. Thereafter in tasting the broth for seasoning she swallowed a sharp oyster shell about the size of a twenty-five cent coin. The shell lodged in her esophagus and necessitated an operation for its removal under a general anesthetic. It was shown that defendant had purchased the can of oysters from Live Fish Company of Pittsburgh who in turn had purchased it from the packer in Maryland. It is conceded that the oysters themselves were wholesome and fit for consumption.
Plaintiffs depend for a right of recovery on § 15 of the Sales Act of May 19, 1915, P. L. 543 (69 PS 124). It is there provided that "there is no implied warranty or condition as to the quality or fitness for any particular purpose *561 of goods supplied under a contract to sell or a sale, except as follows: First. Where a 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 grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. 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."
The seller's obligation in this suit is not based on negligence but upon warranty: 1 Williston on Sales, 2d Ed., § 237. This action being on a warranty and not in trespass for negligence, the tort cases heretofore decided (inter alia, Westv. Emanuel,
There is again practical unanimity in the authorities to the effect that in the case of the sale of food to be put to immediate use under circumstances similar to those present here the buyer does rely upon the seller's skill and judgment in selecting the article and that there is between dealer and consumer an implied warranty that such food is wholesome and fit for human consumption, including freedom from foreign substances which may be injurious to the consumer. However, there is some conflict of authorities where the food is sold in sealed containers. Even here the decided preponderance is in favor of liability on the part of the seller: Burkhardt v.Armour Co.,
There would seem to be no normal reason "for ingrafting an exception" to the general rule merely because the subject of the sale is canned goods not open to immediate inspection by the dealer who is not the manufacturer. The dealer is in a better position to know or ascertain the reliability and responsibility of the packer than is the retail purchaser. It has long been the law applicable to warranties generally. Because it works a hardship in a particular case is not a compelling reason for changing the rule to fit such a case. It places the responsibility on the party best able to recoup his losses: 1 Williston on Sales, 2d Ed., § 242. We arrive at the same conclusion. If the statute goes too far that is a matter for the consideration of the legislature.
We have not discussed liability under clause 2 of § 15 because it is not necessary so to do. If clause 2 does apply liability would seem to be even clearer: Ryan v. *563 Progressive Gro. Stores, supra. That section uses the expression "bought by description" which is somewhat indefinite. It would unduly extend this opinion to discuss how definite the description must be to bring a sale within clause 2: 1 Williston on Sales, 2d Ed., § 236a.
Defendant gave oral evidence tending to show that it was not practical in the process of canning oysters to eliminate all shells and that if the packer reduced the number of shells in a gallon of oysters to four, which would be one shell in each two pints of oysters, it was generally considered "a crackerjack sample". This contention goes to the question as to whether the canned oysters in question were reasonably fit for human consumption. Defendant in short argues that though a pebble in a can of beans (Ward v. Great A. P. Tea Co., supra) or a piece of tin in a can of corned beef (Burkhardt v. Armour Co., supra) might be considered unfit for human consumption, a different situation is presented when, as here, the shell was a part of the oyster, just as in the case of a bone or a splinter from a bone in a t-bone steak or a single cherry stone in a can of cherries, which were each originally a part of the product in its natural condition. Such testimony as was given furnished persuasive and relevant evidence bearing on the question as to whether the product was in fact reasonably fit for human consumption as food. It is, however, oral testimony and it is for the jury and not for the court to pass upon such testimony: Nanty-Glo Boro. v. American Surety Co.,
Defendant also argues that in any event the husband is not entitled to recover as he "is not within the warranty". The orthodox rule requires privity of contract between the parties in an action for breach of warranty. While exceptions to the general rule have been recognized *564
in some jurisdictions particularly in the case of medicines and foodstuffs (See Rachlin v. Libby-Owens-Ford Glass Co.,
Judgment reversed with a venire facias de novo.
Dissenting Opinion
I cannot assent to the conclusion of the majority of the court in this case. It is true that under the Sales Act an implied warranty that the goods shall be reasonably fit for the purpose contemplated by the purchaser arises where the latter, either directly or by implication, makes known to the seller the purpose for which the goods are required and relies upon the skill and judgment of the seller to supply goods suitable for that purpose; and it is also true that in sales of food the warranty applies not only where the food is unfit for human consumption by reason of a noxious or impure condition of the food itself, but as well where it is rendered unfit by the presence of a foreign substance, such as a nail, stones, wire, or glass. However, as pointed out in Cavanagh v. F. W.Woolworth Co.,
Mr. Chief Justice SCHAFFER concurs in this dissenting opinion.