*1 holding here, cases in conflict with to that extent only, those cases are overruled. Unavoidable accident should be proximately negligence defined as an event not caused any party position any of to it. If it is of defendant case that he is entitled be absolved of because the negligence event was caused party of a co-defendant of party suit, may, to the event iswho not a to the he usually protect through pleadings, proof does himself and find- ings person of proximate such sole cause of the event. rehearing plaintiff urges her motion for that we were remanding Appeals
in error in this case to of the Court Civil points for consideration that sufficiency of court the defendant’s challenging error the evidence to sustain negative findings jury negli- contributory issues gence. says assignments She of error in a motion new prerequisite points trial were a error in the Court Civil Appeals and the defendant’s motion for new trial filed assignments challenging in the trial court there were no sufficiency support findings jury. evidence to A re-examination of record substantiates this contention.
Accordingly, portion judgment remanding of our Appeals to the Court cause for further Civil consideration is judgment aside and the set trial court is affirmed. In all respects both other motions are overruled.
Opinion July 23, delivered 1952. Company
Bowman Biscuit A. Texas v. C. Hines. July 16, 1952. No. A-3298. Decided Rehearing 1,1952. overruled October (251 W., Series, 153.) S.
Leachman, Gardere, Dallas, Matthews & appellant, for Bowman Biscuit Co. of Texas.
Justice, Justice, Athens, Moore Appellee, & for A.C. Hines. Mr. opinion Justice Smith delivered Court, rehearing. July 3, 1951,
On Appeals the Honorable Court of Civil for Supreme through the Fifth Texas, Judicial District of the Hon- Bond, Joel Justice, orable R. Chief certified to this court for adjudication following question: and answer the food, original “Where ultimate consumer of sold package consumption, injury for sealed human suffers and dam- age being contaminated, from wholesaler, such food is middleman, retailer, well as the manufacturer liable damages such proximately resulting ultimate consumer eating food, implied him reason of such under an war- wanty imposed by public policy?” law as matter of original hearing question
On the above certified opinion by in the affirmative in an answered Associate Justice Sharp, joined Brewster, Associate Justices Garwood Griffin Justice Hickman and Chief Associate Wilson. Justices joined Smedley Justice and Calvert Associate Smith in dis- holding senting opinion question that the should be answered negative. rehearing, day On Associate Justice Wilson has de- concurring question an with view livered negative; therefore, should be the motion for answered rehearing granted and the certified answered “No.” Opinion July 16, delivered 1952. concurring.
Mr. Justice Wilson *3 question negative. The certified should be answered in the original opinions position On the submission both took the liability there was little or no distinction between Griggs the retailer I and that the wholesaler. felt that under Canning Josey, 835, 623, Co. v. 139 Texas 164 S. W. 2d 142 1424, Capps, A.L.R. and dicta Decker & Sons 139 Texas implied warranty S. 2d A. W. L. R. upon policy selling public based Upon all extended to food. re- hearing implied I liability decided that have the broad of an warranty public upon policy based should not extended be- be yond necessary satisfy public policy. limits question The Griggs of whether to follow overrule the case is not before us. The at bar is whether or not a wholesaler should directly liable to consumer. reasoning The used in apply either does case to the him, wholesaler. As to there is no sale between him and con- support sumer to of the rationale case. Neither does the rationale of the Decker case fit his situation since there is opportunity neither to know and control the contents of package representations sealed nor or inducements him made to the The consumer. case Walker v. Great Atlantic & Pacific 170, 172, Tea expressly Texas S. was W. upon based the retailer’s court conduct. said: The “* * * The can corn was so labeled as to conceal from the buyer identity legal the manufacturer. This conduct in put effect place manufacturer.” wording The record at bar does not either disclose filed suit was This manufacturer. name or the the label the manufacturer. defendant theory developed the de- admissions request response to was a wholesaler. fendant undergone years system in recent has distribution food Our formerly performed the broker change. function great The by the taken over many been instances has in and wholesaler cooperatives or associations. stores, by buying retail chain many different organized under retail outlets Wholesalers are so middlemen situations patterns. The different governed by own his complex should be that each
varied contract. impel- I find this case
Under a second consideration liability ling direct to the a wholesaler a reason to extend to none common law and consumer. There is little basis 38,^'T.R.C.P. question here does not involve under Rule possible impleaded if of this wholesaler ultimate Any retailer, in a direct action. but whether he is liable attempt proceeding at bar to overrule the would be dicta.
Opinion July delivered 1952. joined by Sharp, Justices Brewster Garwood, Mr. Justice dissenting. Griffin, *4 rehearing, following, Due to the action taken on which opinion court, represents was heretofore of now minority justices, original views of a form, of the but filed in its dissent, instead of in the form of a for convenience. Jus- Sharp, herein, tices Brewster and Griffin concur Justice Brew- largely legislature ster for the reason that taken has no action since Canning Josey, infra, the decision in Co. v. changing toward the law as therein declared. question, The by certified Appeals, the Dallas Court Civil 467, 468,
240 plea privilege S.W. 2d arises on a of the defend- ant-appellant, Company Texas, Bowman Biscuit personal in a injury Grayson suit County by filed in alleged A. C. Hines. The injuries plaintiff-appellee, Hines, of the by were caused swallow- ing “appricot puff” wire in an cooky purchased in a sealed celophane by package his wife from their grocer, retail who in purchased turn package had it in the same from the defendant-
374 Except might or “middleman.”
appellant
legally
as wholesaler
ordinary sale,
an
fact of
from the bare
result
anything approaching
defendant-appellant
express
nor
an
goods
warranty
question
is involved. The
of the
reads:
food,
original
consumer
ultimate
sold in
“Where
consumption,
injury
package for human
suffers
and dam-
sealed
being contaminated,
age
wholesaler,
such food
is the
from
middleman,
retailer,
well as the manufacturer
liable to
damages proximately resulting
consumer
ultimate
to
such
eating
food,
implied
by
of the
of such
under an
him reason
war-
public
ranty imposed
policy?”
as a matter of
law
makes,
assumption,
question
of established
is,
course,
retailer and manufacturer
due
holdings
Griggs Canning
and studied
effect
clear
own
Josey, (1942)
623,
835,
139 Texas
164
v.
S.W. 2d
142 A.L.R.
Co.
Sons,
1424,
Capps,
609,
Decker
Inc. v.
&
139 Texas
164
decisions,
especially
The rule of Co., as stated in the Sons, Inc., decisions, Decker & philosophy and indeed the whole allowing include opinions two cases would in those of the against against as well as the wholesaler his action consumer Furthermore, held we have since and retailer. the manufacturer any nonnegligent con- without basis manufacturer liable retailer, appears nonnegligent to tract and have also held the against logical only an action step the consumer to allow be obviously retailer held to the consumer wholesaler. The liable against wholesaler, ought recovery and if that to have over good so, the consumer attack there no reason not to let seems con- the wholesaler in the first instance without benefit tract, just him attack No doubt we allow the manufacturer. the wholesaler held liable to the consumer or to the liability should in turn be allowed onto manufac- to shift turer. reported pre- appear few cases from other states
While disting- point liability sent narrow the wholesaler as manufacturer, holdings uished from that of the retailer or Dairy in Nelson v. 105 P. 2d West Coast Wash. Swengel 130 A. .L. R. v. F. & E. Gro- Wholesale cery Co., 930, support 147 Kan. 77 P. 2d our conclusion contrary Degouveia above stated. A view is taken in v. H. D. Lee App. 447, Mercantile 231 Mo. 100 S.W. 2d quoted abovementioned, which was case our Walker liability retailer, in so far being point as it favored the latter However, approved the one at issue in the Walker case. Degouveia quotation from the case included the statement that" would, a retailer held liable to the consumer as a matter of course, against wholesaler, have redress over and as before stated, great proposition we no see difference between allowing proceed the consumer to the wholesaler in the first instance.
Up point, say, point liability is to Griggs Canning Co., the retailer as determined in the case (which “Griggs we will hereinafter refer Case”) to as the logically wholesaler, appears entails there to be divergence among of views ourselves. Doubtless we are gone that, unanimous had that way, also decision the other liability of the defendant-wholesaler the instant large very minority doubtful. But a would be of the court feels though that, case is such bad law it is neither enough enough yet at all nor new obsolete to be be unfa- old legislature, it should repudi- or the now to the bar maliar only controversy. ; our- therein lies- ated and *6 practical application The of stare decisis in so far as that (see Green, term means adherence to earlier decisions The De- velopment the Doctrine Stare and the Extent Decisis of of Applied, XL, It p. 303) has, Which Be 111. Should L. Rev. Vol. subject of of course been the too much varied permit yet commentary present purposes, another here. For may probably safely very we take it to mean that we should be reluctant to overrule our own decisions unless some- we have wrong ordinary what more than reason to consider them good day they were rendered or reason to believe that Clearly, subsequent events have made them obsolete. laid rule yesterday repudiated today down our court of be is not to today’s judges simply they because think would reached different conclusion had constituted the earlier court. reason, bar, respected Other such substantial criticism jurisdictions ordinarily law writers or courts of other should picture. also, case, proper enter the So in a should the attitude legislature, may expressed which either action or usually rectify judicial inaction and can be relied on to aberra- public today tions not in the interest. And if we of should feel repudiate prior relying altogether inclined decision peculiarly subjective logic such matters as our own ideas of intelligent appreciation specific precedents, as contrasted court, with those of the earlier should not refrain from so we doing judicial technique predecessors unless particular merely erroneous, unusually case seems but de- Judged by general standards, ficient? question these it is felt Griggs whether is case to be overruled is not even a one. close does, doubt,
That there was a dissent in the difference, but, course, only degree, make a one of while it must also be remembered that dissents under circum- some stances —and empha- these existed in the case—tend to size the majority deliberateness with which the conclusion reached. dissent was but a less elaborate state- argument ment of the same today, advanced which to be seems primarily that the decision was and is in defiance of what “majority said “weight to be authority.” rule” or By that purely meant common or decisional law on the point issue, at be, because be, it must and seems conceded years ago, that even ten warranty provisions under Act, Uniform Sales prac- generally force, was rather tically all quite substantial number of involv- decisions nonnegligent ing impure packaged held the food retail sales of appears to be damages It to the consumer. liable or less argued emphasize more that all these decisions but *7 latter, Griggs the arbitrary in that character decision of the by judicial speak, put in Texas to Act into effect so the Sales step, a Assuming doubted, such may means. well what be flagrant judicial always taken, necessarily if heresy, and be would because, quite argument point, as is yet is beside the opinion under the Sales question, the decisions clear from the in altogether purpose. Before Act were cited for an different necessary corresponding provision apply, it was of the act could did the consumer themselves to decide whether courts respect rely judgment retailer with skill of the indeed on the and goods. merely imposed he packaged to The statute if similar to circumstances relied. The held that under courts presumed Griggs so those of the should be case the consumer rely. purely conclusion, aid of judicial reached without This statute, ordinary packaged retail in the sale seller, judgment purchaser upon relies skill undoubtedly appears authority abund- relevant as it is to be as and for the upon question presented case ant holding Considering that we made therein. which this court dealing with the time but with the for the first very adjudication was so matter of whether our own solemn wrong repudiated, Act decisions the Sales that it should now be might enough opinion. it has Where alone well be basis for this legisla- judicial rather than been determined —as a matter of buyer retailer’s skill tive decision —that relies on the judgment, surely very step for a it would be radical thence though retailer, impose liability there were even court on the conspicuous requiring refusal no statute it to do so. buyer generally, Act, applying hold
courts in packaged he food than relies less on the seller in the case of ignored unpackaged a in does the matter of food is not to be Bonenberger Pittsburgh general Mercan- matter of law. See Martin tile 345 Pa. 28 A. 2d 143 A.L.R. Ky. 429, v. 201, Atlantic Tea S.W. Great & Pacific examples. as recent decisions, sugges- any wholly
But aside from the Sales Act far precedent case is tion that this court flouted de- of relevant number founded. from well indeed Where are not opposing decisions small, or quite where cisions any balance, it is inaccurate conspicuously out of the credit rule,” said to “majority speak a digest, being reached which is cited the conclusion Griggs case, a its broad term. text does not use such great many actually passed exact Not courts have on the question, disputed and it can be that various of neither nor clearly Griggs holding. support these decisions Even should preponderate it be that on the other one or out those side two of, say ten, hardly repudiation such a situation calls for given decision, our discloses to have consider- again ation to the cases conflict with it. But let us muster the question. decisions in upholding decision, (or
For
re-cite)
we cite
: Sencer v.
(Fla.),
(a
holding
very
Carl’s Market
45 So. 2d
clear
point, though admittedly accompanied by
dissent); Chapman
Roggencamp,
App. 117,
182 Ill.
and Sloan v. F. W. Wool
*8
Co.,
App.
worth
620, (both
Griggs
193 Ill.
in
cited
apparently
stated); Swengle
admitted to hold as
v. F.
E.&
Grocery Co.,
555,
(admittedly
Wholesale
in
147
P. 2d
Kan.
77
930
; Cushing
point)
Rodman,
258,
App.
65
82 F. 2d
D.C.
1023; Degouveia
104 A.L.R.
Co.,
v. H. D. Lee Mercantile
App.
Mo.
;
(admittedly
point)
tucky, Maine, Mississippi York, alleged and New which are a “majority constitute rule” will be further mentioned . hereinafter. On those parenthetical which we cite above without com-
ment, following observations are order. They, others, like the have no concern with the Act holding and all nonnegligent involve a retailer as the result of packaged his sale of equivalent. food or its Degouveia As to the case and our own Walker case: The former we already being have opposed mentioned as to the present unanimous of, liability view court direct logical wholesaler would be a consequence liability retailer. that case escaped liability the wholesaler for the sale of the can impure salmon, though name the wholesaler’s and it alone was on the label. But held. And the the retailer was court’s rejecting argument statement lack of retailer’s negligence opportunity to know the can was the contents of followed as said case and in it to be quoted our own Walker authority plea retailer. In the Walker rejecting a of a similar true, the fact that was, importance it is attached some case identity giving can, the defendant on the while label “distributor,” the manufac- not tell who as a did retailer mere decision, anything from that at all is clear But if turer was. gave approval at the his which time, dissenter was held liable without it is the retailer knowledge regarding the food and condition of means If it having mispresented itself manufacturer. as the without retailer, outrageous us to hold the in the case for was unanimously did scarcely hold him as we then it was less so to being case, only in the latter difference in the Walker can, which mis- put name on he failed to the manufacturer’s led no one.
Cushing case, (Bigelow v. the Maine Maine v. Rodman —like 627) R. Me. Atl. 43 L.R.A. N.S. Cent. a authority against leading res- —was type case, retailer situ-
taurant but more similar to usual damage done, by in the Maine case ation that the not as served, then but food taken can seller and from gotten containing pebble into it at which must have roll bakery possibly discovered the lunch- could been operator destroying That room ately without the roll itself. elabor- operator decision, lunchroom
considered which held the liable, duly Griggs case, up, among points and was cited *9 impractical alleged “majority things, aspect other original liability pack- rule” retailer for in “the food great age.” packaged supposed That and un- difference between packaged good ruling ground food is claimed to be for out as authority decisions, nonnegli- a of number older which held the gent involving unpackaged retailer at common law on facts food, including accordingly and which we from refrained may really in the list above. But one well ask whether there is significant difference, example, such a looking for between a sound- smelling piece germ poisonous
and
of
with a
meat
drug
impure
hidden in its
and on
tissues
the other hand
food
in
package
practical opportunity
a
contained
or even
can. The
greater
discovery by
scarcely
for
the retailer
is
in one instance
merchant,
other, especially
than in the
in the
of the small
case
ap-
seldom,
who seems to be sued rather
but for whose welfare
prehension
expressed.
negligence
properly
is
If he is
held without
unpackaged food,
great
any
case
step
is it
hence to
packaged
him in
hold
the case of
The
food?
various decisions
imposing
liability
without
case
unpackaged
are, therefore,
relevant, although
food
we consider
Griggs
supported
too well
decision
without
them to refer
again
They,
to them
admittedly
in detail here.
seem
to reflect
“general
alleged
denying
“majority
rule” to which the
rule”
packaged
respect
“exception.”
food
an
is
point
At this
mention should no doubt also be made of Ward
v. Great Atlantic & Pacific Tea
Mass.
N.E.
Griggs
quoted
L.R.A.
it is
since
case and
refer-
challenged
improvident
misleading.
ence is now
as somehow
Griggs opinion,
course, plainly
case
states
the Ward
regard
Act,
every
was one under the Sales
as it did with
such
directly
clearly
passing
case which it cited. It was
cited as
packaged
law,
on the
under
but
(a)
the common
yet
relevant, propositions
special,
quite
rather
that:
(warrant
Subdivision 1 of Section 15 of
act
fitness
seller)
buyer
where
judgment
relies on skill
is
nothing
law;
(b)
but a
common
codification
There
general
principle
common law
of “food”
that in sales
its fitness
seller;
(c)
is taken
prin-
This
warranted
latter
ciple properly
included a sale of canned food
a retailer
another,
purchased
just
in-
who has
it in the can
from
unpackaged
undoubtedly
cludes sales of
foods.
case
The Ward
and, being
just
twenty-five years
states
decided some
be-
decision,
Griggs
proper,
small,
undoubtedly
part,
if
fore the
going
body
generally
justify
of law
considerable
It, like the
Act
decision.
recent Sales
decisions in Bonen-
Pittsburgh
berger
Co., supra,
Mercantile
and Martin v. Great
emphasizes
supra,
Atlantic
Tea
& Pacific
the refusal
courts,
determining
buyer
whether
relied on
skill
judgment
Act,
purposes of
of the seller for the
any
packaged
unpackaged
draw
between
food.
distinction
suggest
any
placed
Nor is it correct to
upon Ryan
Progressive
particular
Stores,
Grocery
reliance
255 N. Y.
expressly
N.E.
described Sales Act case was mentioned no among prominence digests doubt because of its in texts and *10 that class of was said in- decisions. little that about it is disputably wit, correct, “approved to that the decision it Tea Massachusetts court Ward v. Atlantic & Pacific Great Co., supra, applied as to cases where selection of dealer, buyer is made and held where the that selects judgment rely the brand and does not on skill and of the quality implied warranty of merchantable is an dealer there (139 Texas Act. under 15 of Sales Subdivision of Section 837).” 2nd S.W. Griggs opinion, we considering portion And in of the charged with properly must to be also that it is not observe holdings de- certain earlier unfounded innuendos as to adoption prior York to cisions rendered in New and elsewhere goods. involving packaged actually of the Act and Sales not meant, several plain citation of as is rather from the What opinion, portion previous these same cases in the nonnegligent general warranty simply rule” of that “the liability, long re- admittedly with that to existed seems have gard buyer “food”, application require to did not for its judgment the re- be shown to have relied on the skill seller, required by tailer or other the terms of Subsection as 1 of Section 15 of the Act. From this it was reasoned actually with some of the force the Sales Act is restrictive law, generally speaking, that, common and from this in turn holding decisions the retailers under liable Subsection indicate tendency impose liability of courts to retail in the case of food, regardless Putting sales way, act itself. another it only application argument pack- to aged goods was this--that if the Sales Acts courts had felt unjust charge nonnegligent ordinary at all to the retailer in an goods, they surely retail sale of such would not have held as unanimously buyer as have that the relied on the retailer’s judgment, charge skill and so the latter under act. Indeed, stated, (in apply as before hold order the act to all) ordinary packaged goods at in an retail sale relies, presumed rely, judg- consumer or is on the skill and holding ment of the retailer comes rather close to re- ought tailer act, liable even without makes which reliance the test. holdings jurisdictions,
Now as to the from some five which are said to “majority law, constitute the rule” of the common denying liability nonnegligent pack- in sales of aged food, opposed holdings contrary to the facts similar specially we jurisdictions listed from at least five support stated, decision: As before substan- tially alleged “majority all of these rule” ex- decisions were pressly acknowledged, though followed, case. Bigelow As to v. Maine Cent. R. 110 Me. 85 A. 627; Pennington
43 L.R.A. Cranberry N.S. Fuel *11 382 680, 610; Kroger Lewelling, Grocery
W. Va. 186 and S.E. Co. v. 71, 726, 165 Miss. case 145 So.. add no comment. As to the we 1052, Rep. 646, Laubenberger, of Julian v. 16 38 Misc. N.Y.S. rule, pre-Sales the New York that Act said to be stated in decision, ignorant buyer mean seems to that if the were fact further the seller was not the manufacturer or the inspected fact know that the seller had not or come to somehow can, Con the contents of the then seller would be liable. the sidering freely purchased informally and how are canned times, say in these modern this would seem almost the same as ing usually seller retail would be liable. As to Walden Scruggins Wheeler, Ky. 181, 1088, Jones, 153 154 S.W. Ky. 636, 743, 207 269 while no doubt do reflect S.W. Kentucky Act, adopted law as it can was before one hardly read the later decision of Martin v. Great Atlantic & act, Co., supra, holding Pacific Tea liable after the ought thought acquiring impression without an that the court he beginning. Why to have been from should liable otherwise apparent approval refer with to the argument policy and make it was on whole better to hold the retailer and let the recover latter over 201,203. wholesaler or manufacturer? S.W. 502, App.
As to Fleetwood v. 108 S.E. Swift & 27 Ga. 909, Georgia it and dis- similar decisions seem to have been Supreme carded Donaldson v. Court of State in Great Atlantic Tea & Pacific 199 S.E. Ga. pure- 128 A.L.R. which held in under effect that the state laws, substantially food same as our own evidently decided, were in effect when Fleetwood case was the defendant retailer would the basis of be liable on per injuries meat, se for from the contaminated sale of unnecessary (him) that for such had was “for to have ‘knowledge wanting impurity food, have been ” ordinary said care connection with its sale.’ court “Nothing any contrary actually further: decided in following Swift, App. cases: Fleetwood v. Ga. * * any 108 S.E. *. In none of there these cases was refer- pure-food act; any ence to the under and whether the facts or invoked, one or more of them this statute could been these only, physical precedents cases can be considered as with little authority, or no force as in relation such statute.” defending appears that, decision, It therefore if precedents any we restrict even ourselves which do not in way involve the retail Sales Act which do involve the sale only packaged brought by food the defendant-retailer from a being manufacturer, wholesaler or such a there is far from *12 “weight Griggs authority” to make it decision as appear clearly wrong original jus- proposition, an much as less tify repudiating having carefully us in it and de- after considered give weight prin- cided it. And if we relevant we should —to —as ciples by Act, applying decided courts in the course of might or if persuasive we treat as a well we rather fact —as —the impressive jurisdictions by number of Act and which the Sales by policy holding responsible, common law the retailer without express impure warranty, or in the sale of packaged food, may rather be said to have brought our prevailing jus- state better into line with views of tice rather than to have defied the latter. yet
And there mentioned, is another class of decisions to be though it directly was not adverted to in the case. It will be case, rejecting recalled that our own the con Walker wrong tention that it was to hold less re the more or innocent tailer, length penalizing referred at to our criminal statutes impure food, the sale of portion opinion being that unnaturally quoted Griggs opinion, in the since the entire Walker opinion adopted by had been theretofore this court. It true opinion the Walker made a somewhat less than accurate statement as to the matter of scienter in connection with crim pure inal under our food statutes. But it is still less say pure accurate to interpreted that our food laws are or were by Appeals the Court of requiring Criminal scienter on the part ingredient of the dealer as an essential of the offense. general by It is true that terms of Art. 41 of the Penal Code, prosecution many of fact mistake defense to of fenses, including pure violation of the food laws. It is also true possession terms of those laws the the seller of guarantee party a written prevent from the who sold to him will alleged a conviction. But it is certain that scienter need not be indictment, part because it is not a of the offense and only general becomes relevant as a defense under the article regarding Actually mistake of fact. this was what the old case Vaughan State, Rep. 255, 86 Texas Crim. 219 S.W. stated, appears rehearing. from the See the recent contemporaneous Appeals decisions the Court of Criminal beginning State, App., Neill with Texas Crim. S.W. Vaughan explained. in which From de- v. State is these proves
cisions it seems
sale
to follow that where the state
can,
impure
the defendant
a case is made
food even in a
hardly
uphold
which would
other-
a conviction. And it could
be
considering
categorical
wise
P.C. that
terms of Art.
allege
necessary
“It shall
or for the
not be
for the indictment
knowingly
prove
or
State to
done
act or omission was
laws,
like
Admittedly
pure-food
omitted.”
the terms of our
States,
even
those
do not
of various other
states
the United
suggest
food,
exception
packaged
is er-
in favor of
roneously
majority
law
claimed
“the
rule” of the common
to be
knowledge
civil
under both our
cases. It
is common
laws, moreover, impure
state and federal
misbranded canned
food,
public
may
judicially
authori-
condemned at suit of the
bought
innocently
indi-
not. As
ties whether
the dealer
*13
cating
treating
point
to be
hold scienter not
most cases
laws,
necessary
pure
see
of the offense under the
food
element
in
the annotation
The recent case of Donaldson v. Great A.L.R. Pacific Tea as Ga. S.E. stated, impure unpackaged heretofore held a retail seller of negligence per guilty pure se food laws meat reason of own, doing expressly substantially the in same as so consumer, case, plaintiff ruled that to his need not make allege guar- prove or either that the defendant had no written defen- antee from the wholesaler or manufacturer or that lacking knowledge ordinary dant was purity in care of the im- or had conspicuously say of the food. The court did not in particular “ought case the defendant known” be- have goods. nonpackaged cause of the character of It said in effect that he was liable even if he did not know and even if he exercised due care. Supreme
To the same
effect is
rather late decision of
of Ohio in
Court
v. Great Atlantic & Pacific Tea
Wolfe
230, only
Ohio St.
56 N.E. 2d
there the food was canned
food sold as such. See also the cases collected in the annotation
in
It well be that courts should not so to speak, impose civil where act of the defendant But, hand, violates a criminal statute the state. on the other disregard certainly altogether, should the statute es- judicial precedents con- no civil pecially where there are Neg- in trary import. Morris, Criminal Statutes The Role See hold do not here ligence Rev. 21. We Actions, 49 Columbia L. ought carried Griggs have decisions that our Walker to rest on pure food laws further so as reliance on the their any now theory, do we need negligence per nor means se theory in maintain our decision espouse order guides than precedential no less case. But results determining justify so in propounded them. And the theories obviously law, we and is bad decision was whether the dis- heretofore all other matters properly note in addition to respected jurisdictions have cussed, of several the courts might used we result means which reached same grounds. additional alternative unworthy decisis of stare disinclined to treat Thus we are decision, decisions at least which is accord with half of jurisdictions substantially in other identical facts reached under obviously far with the more accord and the result of which is throughout way and this nation another results reached one England contrary is es- result would be. This and in pecially than a when, appears, so far as the decision
true dissenting except criticism from the met with little has minority and, standing as t^e law of this state here while contrary years, yet superseded by action some ten has to be legislature. “public policy” phrase oc- It is no valid criticism that *14 justice, Griggs concept a described curs in the decision or that term, may some of the cases a is what motivated such all, Griggs pos- opinion could on which the relied. After what sibly “public policy” unani- more rather be a rule of than nonnegligent manufacturer liable to mous one which holds And contract? a evidently with whom he had no shadow of a consumer using mind in all that Alexander had in Chief Justice “public policy” con- in term was to forestall this state conflicting approaches from fusion which had arisen elsewhere problem respectively and contract. to the based on tort Since Sons, Inc., unanimously in the Decker we discarded & decision determining and contract in manufacturer to be both tort consumer, suggests opinion liable no to the one that that holding modified, why say, we should be even should not in so, dealer, that tort con- we do not on narrow theories of or legal tract, right it in modern but because is accord with thinking? principle, which, enough,
On the matter of often means “public policy,” con, already pro much has been written justified repeating we would be in all it here. Suffice say Griggs unjust, it to morally that if rule case is practically unsound, then other so are several decisions just it, states many which are like decisions under Act, per se decisions of several states and doubt- including pure country, less most of food laws of the Dubious, too, own. would be our own decisions in the Walker Sons, Inc., liability and Decker & cases. idea of absolute special dealing only in situations —and here that we with consumption certainly nothing of food for human novel —is respondeat superior the law. What is the one ancient rule of but liability, any absolute far so fault the defendant-em- ployer simply liability judicially is It concerned? is a rule of imposed employer’s policy. on the a matter To business as regard major apparently those who decision grocers, may hazard to the economic life of small be observed: large age enterprise, that such of them as remain in are, judge reported sued; cases, rarely is that there years de- indication whatever since the par- grocers any cision was these written small have suffered hardship thereby; ticular had suffered a eco- if real through decision, legislature nomic discrimination it, not; would doubtless have taken action which it about has grocer can, question, imposed that the if on the small course, of saler, against be transferred him to the manufacturer whole- position probably
whom much he is better proceed average injured than consumer. Griggs decision, with consonance and for the reasons given, questions affirmatively, the certified should answered is, to the effect that the wholesaler or middleman liable under the conditions stated.
Opinion July 16, delivered 1952. joining by Smith, Justice Hickman and Mr. Chief Justice dissenting. Smedley Justices and Calvert respectfully I expressed by most dissent from the *15 majority the in this case. opinion non-negligent
The majority the if the holds may consumer, held liable to the who has suffered injury original damage pack- from food sold in the sealed law, imposed by warranty as this court age, upon implied an Griggs 623, Canning Josey, 139 Texas SW Co. decided unjust without then it would be 142 A. L. R. middleman, wholesaler, liable to also not to hold the reason My conclusion. at- quarrel with this consumer. I have no the liability premise the major posed the tack is —the retailer. written, the was Court the When vigorous men, composed whom filed dis-
was of three one of right circumstances, Court exercises its this sent. Under like majority principles announced the when to review the of law litigation. Royalty in other Federal later arises State, 2d 993. Co. v. 128 Texas 98 SW among things, predicate duty is, The of this other Court reasonableness, fairness, upon upon cer- most its decisions recognition duty, necessarily tainly upon it actualities. of this depend upon judicial many notions of follows that decisions upon point public policy wise there are no decisions when only evenly state, jurisdictions offer an within the and other situation con- conflict in result. This was the exact balanced fronting Griggs Canning passed upon this Court when rule, time, Company majority common law at that was case. The liable, negligence, the retailer was not absence injuries as a result of deleterious sustained consumer majority foods in sealed container. 22 Am. 99. The Jur. Sec. States, adoption rule of the United due to the fact many states, Act Uniform Sales influenced the decisions Sales, was that the retailer was liable. on 2d Ed. 242. Williston Griggs Canning adopted Texas has not Act. In the deciding Company position placed in case the Court upon wiser dissent is which was the course to follow. This grounds that an erroneous choice was made. Sales, Griggs opinion
The cites a statement from Williston engrafting stating exception an there is no reason for goods packed merely are the retailer because following found in Vol. Wil- in sealed containers. The is to be Sales, Ed., 622: liston on Rev. goods however, possible, unmerchantable to sell
“It must be manufacturer, though a dealer or even if the seller is inspection inspect buyer or his does not either nothing case can reveal because defects nature of the way expressly ordinary for the seller to do latent. *16 388 buyer Amy
to state that the must take the are. tending word or conduct to show that this1was the intention parties prevent warranty implied will a being the . .” . from This section warranty implied indicates that no can be where purchaser, the purchases packaged goods, at the time he knows, charged notice, or is with that the retailer could not possibly have package. known the contents of the 90, v.
Ward
Great Atlantic & Pacific Tea
231 Mass.
225,
120
N. E.
Ryan Grocery Stores, 255 N. Y. upon E. L. N. 74 A. R. another case relied Griggs case, upon 15 of of Section based Subdivision imposes regardless warranty Sales Act. This section Although parties. authorities do intention of the modem warranty, imposing look intention of the dealer when *17 Sales, Ed., 201, supra, they do refrain to on Rev. Sec. Williston being merely misleading, problem real so because term is right Disregarding buyer rely. of both of the to the intention parties most, (2) 15 of the leads conclusion. At us one Section majority (which adopted by a vast Sales Act has been legislative public pronouncement States) a of the United policy is interpreted state, judicially and of the or a constructed regardless policy. public policy, of the soundness that impose step” majority opinion says The not a “radical is liability upon goods, packaged in the absence a retailer of even statute, a since courts under Act have made the Sales “judicial” presumption upon “su- consumer relied knowledge” perior retailer, refusing distinction of the to make a packaged open goods. and between Ray in McCormick As stated agree Evidence, p. 48, and writers Sec. “The courts assumption (presumption) required permitted that the be- is or (1) following justify cause of one or more it: of the reasons to experience shocking sup- (It human with such situations. is pose experience that human leads one to the conclusion knowledge” upon “superior consumer relies a that has no basis fact.) (2) socially It achieves a result desirable. (This attempts point de- dissent out that there is no social sirability condemning by manufacturing party an innocent warranty “superior knowledge” upon a a which can be based escape state.) shown does not exist to in this criminal (3) procedual (This It serves as a convenience.” seems to be majority just opinion, the true basis of but it is not a or upon liability.) sound foundation which to rest implies The court in the case then rule hold ing the retailer liable under this set facts was the same even Act, citing Fonda, Johns, before the Sales v. Van Bracklin 339; Krum, Y.N. 7 Am. Dec. Race Y. v. N. 1918F, 1172; Peters, 51; E. L.
N. R. A. Hoover v. 18 Mich. Keller, However, Wiedman 171 Ill. E. 210. an ex N. a amination will reveal that each of involved either these cases manufacturer, situation the retailer where was the exposed were to the dealer’s surveillance. As was stated in Bigelow Co., supra: early R. Main Cent. “The law rules of upon theory provision were formulated dealer and inspect the having victualer, opportunity to observe an the appearance they to the products offered quality of the food * * * knowledge charged No accordingly public, with were ap- perfect original knowledge present contents products. practical canned pearing possible use of can is analyzed used. every are They chemically time cannot be having ceased, a rule Accordingly, new rule the reason for the goods that will applied canned to the sale and use of should just.” (Em- nearly rational and more harmonize with what Laubenberger, Supp., added). 38 N. Y. phasis Julian v. See also general Clearly rule and not those dealt with the 1052. cases authority exception, that will buttress reasoning case. significant majority opinion states that there is not good sound-looking packaged
difference canned or between *18 germ drug piece poisonous and a hidden of meat that has approach prob- very in its tissues. This is a unrealistic to the concept police power lem. The whole of of the state to control handling impure process. the sale and of foods limited is due regulation governed supported The reasonableness of the is regulation desirability capability pro- and the of the recog- public uphold regulations, tect nizing health. The courts such many arise, hardship that times cases will because the regulations instill, promote, require the handlers of food degree handling superlative of in exercise care those regulation consumption. commodities for human justly apply While the would goods, unpackaged in the case of the reason falls goods packaged. where the are This dissent would be the first highest degree to hold a retailer liable who did not use the of inspecting packaged apparent defects, care in for that, this, liability we but refuse to demand after he has done disregarding imposed the limitation of reasonableness —a respect. limitation which of the criminal courts vigorously this state Be- disagree this, cause of we with the conclusion of the concerning majority decisions, unpackaged goods, that these degree. in relevant even the smallest The case then cites the discussion of Texas Penal (involving food) found in Statutes Walker v. Great Atlantic & Pacific Tea 131 Texas 2d 170. The SW discussion part that those statutes demonstrate an concludes intent on the grounds Legislature of to hold the retailer liable on the of prior However, interpreted, policy. public those statutes were Vaughn decision, by Appeals in to that the Court of Criminal requiring Rep. State, 219 SW Texas Cr. is knowledge part dealer before he on the wilfulness or prosecution. for liable majority- Appeals’ cited in the cases of Criminal Court dia- public policy state is clearly of this that show holding at in the case
metrically the retailer liable opposed to recognize de- These cases that case. and in the bar fact, yet ma- right prove mistake has a fendant jority support their conclusion in cite those cases content to is impose liability (since policy this state is public disregards indictment), then of an not an element scienter by casting in those cases set out of reasonableness limitation knowledge. of lack of defense aside the obvious case, majority opin- Also, with the Walker in connection knowledge have did not that since the retailer indicates ion negligent can, then he was since the contents authority specie As case. case is some the Walker case, “The so can corn was labeled was stated Walker buyer identity manufacturer. to conceal from put place legal the retailer the argued conduct This effect added). (Emphasis Can it be manufacturer.” case? reliance was absent We of induced element holding. quarrel with App. Degouveia D. Lee Mercantile 231 Mo. H. upon public policy. application of based an
100 S.W. *19 Swengel Grocery F. & E. Wholesale 147 Kan. by majority, 2d cited the court did not 77 P. the seem reasoning. to reach a result consistent with its The court in that that the retailer and middleman lia- case stated to relieve of goods bility merely packed practically in because are cans would relegate manufacturer, his action the the consumer to recognized every today nearly it kind com- must be that since of This, modity is in containers. in the sealed absence of warranty, advocating. implied exactly or what this dissent is is industry progress point For what reason did to this but to meet consumer-public shipped the demand of the have his foods places price, spoilage from distant at a low free from and filth? The court continued: many by
“It is also well known that are articles of food sold advertising or a brand name as result of extensive which purity, wholesomeness, etc., price, varying are de- stressed manufacturers,
grees, packers, jobbers and that insofar as challenge concerned, purpose is to attention to brand a therefor. as the name and create demand Insofar local concerned, advertised he and sells these dealer is stocks demand.” that because manufacturer, thing. is say The who
This seems to but one Sons, Decker Inc. v. the decision of the & deemed liable under ad- A.L.R. Capps, 139 Texas S.W. puts appeals The consumer faith to the consumer. vertises and creating food. advertising, public The a demand for in that public and stocks his shelves with dealer demand heeds reaches conclusion since what seek. The court then him, expected fit- warrants retailer what is he does appears be and is held liable. This ness wholesomeness unsound. involving analysis
From a careful of the cases sound, retailer, only basis, for shift- found that if it is “warranty” ing imposed a law on the loss grounds public policy. elementary the retailer It express warranty. warranty implied if an The is liable he makes reliance, reasonably must as its basis some inferred Therefore, attempted are left I have to show does not exist. we shifting any question: “Is reason the bur- with this one there for retailer, merely from of his den the consumer to the because ?” I there is a difference the situation status think vast between manufacturer that of the retailer or wholesaler. The Sons, supra, Capps, of Decker Inc. v. decided & day opinion it on the same rendered its Court Can- ning case, supra, Company defendant was one which the question was whether the manufacturer. to be determined manufacturer, processes who and sells contaminated food to consumption, retailer for resale human should liable to injuries the consumer for sustained him as result of eating of such food. The exact had not been before quite this Court at that time. The stated “there is a con- Court trariety jurisdictions.” opinion subject on the in other In this connection, appears that one of reasons for the “contrari- ety” part juris- was the on the insistence of several upon requirement upon privity dictions a suit basis *20 warranty words, jurisdictions food cases. In of in other some had held that the customer of a retailer could not recover even cases from the food manufacturer or wholesaler in unless he prove of case, the defendant. In Decker could the correctly so, aside laid definitely, I think and supra, this Court by the customer privity for suit requirement of was the manufacturer conclusion reached the and manufacturer public principle Liability on the broad was based liable. implied warranty life. An protect health and policy to human policy, public operation as a matter imposed by of law was negligence, a nor on breach of liability was not based and warranty. implied contractual usual reaching conclusion, Court said: In manufactured a fact articles of food are “It is well known commerce, intention placed with the and channels finally they used pass from hand hand until shall impracticable, usually remote It some consumer. if analyze and impossible, consumer to the ultimate food for consumption. ascertain not it is suitable human whether or for packed placed on the market it has been Since for food purchaser consumption, usually such, marked human pre- family without eats it or ca/uses to be served to his analyzed by it having wheth- caution a technician to ascertain -of consumption. fact, er In or not it is suitable human most only satisfactory could be made instances the examination that place only processing would at the time and food.” (Emphasis added.) reasoning and ultimate conclusion reached is sound as applied a manufacturer. It clear that this rule consumption prepared respect for human to food is for the scrupulous protection people, health and to insure a preparation care in of those articles of commerce so as to danger using all reduce to a minimum to those them. my opinion, completely
In the reason for the rule ceases Griggs Canning applied Company not have been should case, case, supra, defendant In where the dealer. an innocent retailer.
vendor was the case now under con- sideration, equally the defendant is an innocent wholesaler. It plaintiff retailer in turn sold to sold to the containing package “apricot puff a sealed cookies.” Plaintiff alleged eating injuries sustained virtue of one of the cookies piece contained therein a which had wire. The wholesaler ignorant prepared package. entirely had not the sealed It was presence of the wire the cookie contained in the sealed package. plaintiff necessarily I think it must be assumed that the superior knowledge knew that wholesaler and retailer had *21 394 just package as
of the contents of the and that it was sealed impractical impossible and retailer for the wholesaler analyze inspect package it or as for the consumer sealed was con- human to so ascertain whether or not it was suitable for inject sumption. into The law cannot as to so unreasonable had, party had, in mind neither could contract what jus- comports with made. It better time the contract was at the an article hold that where a dealer sells to his customer tice to original by package put up manufac- which it is in the turer, as much the article as
and the customer knows about wholesaler, any representation buys it without dealer knowing upon judgment, that dealer or reliance his from dealer, im- inspection byit there is no no there has been although warranty, that the customer the dealer knows plied buys food. it for properly and consumer wholesaler-retailer
The situation law. The governed retailer owes the rules of goods packed by supply manu duty reliable consumer the facturers, imperfections may be as without and such care, experience of dealers skill an exercise discovered generally. retailer’s- products This is the measure in such Bigelow 29, 1124; L., duty. v. Maine R. C. 11 Sec. wholesaler’s 105, 396, 398; Co., 85 Atl. 43 L. R. A. N. S. 110 Me. R. Cent. 627, 629; 1088; Ky. 181, Wheeler, 44 153 154 v. S.W. Walden 597; Scruggins Jones, Ky. 636, 207 269 v. S.W. R. A. N. L. S. 502, 909; Co., App. 743; 108 & 27 v. Swift Ga. S.W. Fleetwood 680, Pennington Cranberry E. Fuel 117 186 S. W. Va. v. Lewelling, Kroger 610; Grocery 145 So. Co. v. 165 Miss. Rep. 646, 726; Laubenberger, N. Y. 16 Misc. S. Julian 1052. Kentucky were overruled two cases cited above Kentucky Appeals Martin the case of v. Great
Court of reason, Tea for the sole Atlantic & Pacific SW stated, they upon the law declared "were based before * *” * strong- Uniform This in 1928 Sales Act. enactment passage had of the Uniform ly it not been for the indicates Act, adhered its former decisions. would have the Court Liggett Myers Foley Co., Inc. & Tobacco the case 233, 240, al, court, decided in N. Y. discuss- et ing Laubenberger, supra, case of Julian v. said: Act, Laubenberger, to the Sales was held Julian v. “Prior Rep. 38 N. Y. Misc. S. the seller was not known to when it was in sealed cases for food sold liable it, inspected it, prepared had had not buyer the seller This, however, ignorant can. contents of the longer this state. the law of *22 upon liability Act, the manu- there “Previous to the Sales Act, however, has upon the dealer. The Sales facturer but not expressly change, refuses dis- brought Act to for the about the * * growers, manufacturers, tinguish and dealers between Liggett holding Foley years in the v. & after the Twelve Company the to the law an- Myers case effect Tobacco longer Laubenberger case was no the in v. the Julian nounced Act, enactment of the Uniform Sales the because of the law Hopkins Amtorg Trading the York in case of New court Y. App. Div. S. 2d held that the Corporation, N. Laubenberger must Julian case control announced in the law words, of the cause the of statute. other action in absence Jersey, the was filed in in the of New but suit New arose State plaintiff plead Jersey failed of New York. The to the statute the of cause of action. The New York court as simply foundation his pleading proving
held in the and absence of the Jersey, New and further law State of absence of state, proof the to the common law of that common sufficient govern. of York must The court reached the law New conclusion proof in the absence of com- the retailer was liable negligence. law also Kirkland v. Atlantic mon See Great & Pa- Tea Ala. 735. cific So. imperfections, a in a to hidden such as small wire
As cookie package, consumer must deemed in sealed be to have warranty relied on care of manufacturer which principle protect implied on is held to be the broad to human health and life. retailer, and when considered in their true wholesaler socially economically
light, merely desirable and neces- wrong sary conduits, and where have committed no up duty required pro- measured them should be say public policy “your very will to him tected exis- merely jeopardized because is more tence will not it conven- you manufacturer,” to reach than ient for consumer you position put pressure are in a much better “that you have one with whom dealt.” grocer state, reputable retail
Under although wrong, but, hand, he committed no has on the other selecting every precaution has exercised manufacturers rec- ognized by being consumer-public best, wiped could be peaches, out stance, business can of sale one or in this in- package apricot puff one sealed I cookies. am not will- ing jeopardize existence this class of small business every men. The law should protect be written in case so toas just innocent. It would seem equitable to me much more put suing the burden on the consumer the manufacturer who processed food than it would be to have the class small handling groceries men being business jeopardy constant run out of business. The innocent wholesaler or retailer should required not be to shoulder merely an unwarranted burden convenience consumer. The entire the in- placed manufacturer, stant case should be on the justly where belongs, for the opportunity manufacturer had the means, duty, and therefore the to insure injurious that no noxious or *23 get package substances shall into the sealed opportunity —an and means wholesaler-retailer have, did not and for justly charged. which he cannot It is the settled law of this state as established in Decker Sons, case, supra, imposed & Inc. on the manu- implied facturer warranty imposed under an by operation of public policy. Therefore, law as a matter of the consumer has given right party been to sue the at fault. This is all he is rightfully entitled to.
The certified negative. should be answered in the Opinion July delivered 1952.
Rehearing overruled October 1952. Company Life
Aetna Insurance v. Laura Reed. M. July 2, 1952. No. A-3585. Decided Rehearing overruled October 1952. (251 W., Series, 150.) S.