Grapico Bottling Co. v. Ennis

106 So. 97 | Miss. | 1925

Lead Opinion

^* Headnotes 1. Corporations, 14 C.J., Section 1474; 2. Sunday, 37 Cyc., p. 570; 3. Sales, 35 Cyc., pp. 88, 401. The appellee sued the Grapico Bottling Company, a corporation, and Philip Carriere, an individual, jointly for damages caused by drinking a bottled drink put up by the Grapico Bottling Company and sold by it to a dealer in Ellisville, Miss., and sold by such dealer on a Sunday to the plaintiff, and in which bottled drink it is alleged there were a number of flies, some of which the plaintiff claims he swallowed, and that he was thereby made sick for a time. It is alleged that the Grapico Bottling Company, on or before September 7, 1924, operated a bottling establishment which manufactured and sold soft drinks, and it is alleged that said bottled drink containing flies which the plaintiff drank was manufactured and put up by said Grapico Bottling Company, but that subsequently a petition had been filed in the chancery court to surrender the charter of the corporation and to dissolve it, and that at the time of the filing of such petition Philip Carriere was the sole owner of such stock, as shown in the petition for dissolution; that said petition for dissolution also showed that the corporation owed no debts, and the chancery court decreed the dissolution of the corporation and the surrender of its charter; that Philip Carriere, the defendant, took charge of all of the property of the corporation. The declaration was not predicated upon the negligence of the bottling company at the time of the bottling of the drink, but was predicated upon the theory of an implied warranty.

The defendants sought to defend on the ground that they were not liable, unless for negligence in the manufacture and bottling of said drink; but the court below refused to give instructions to the jury for the defendants, based upon that theory. There was also a requested peremptory instruction as to the defendant Carriere, and also as to the corporation, which peremptory instructions were refused. The peremptory in favor of Carriere was based upon the theory that he was not liable, because the corporation at the time of the bottling of the drink was an existing corporation, operating the plant, and was not shown to be insolvent, and that he himself did not actually do the bottling. The peremptory for the corporation was sought upon the ground that the sale to the plaintiff was made on a Sunday and was void, being in violation of the statute, and that the plaintiff was in pari delicto, and could only recover by showing a transaction prohibited by the law in which he was a participant.

A stockholder of a corporation is not liable for the acts of the corporation, and, if there is any liability against Carriere at all, it was for the value of the property received by him from the corporation, and it was error to enter a personal judgment against him, and we think on the proof in the record the peremptory instruction as to him should have been given.

We are also of the opinion that there was no liability, or at least that the plaintiff had no right of action, because he wasin pari delicto in a transaction involving a violation of sections 1366 and 1367, Code of 1906 (Hemingway's Code, sections 1102 and 1103). Section 1366, Code of 1906 (Hemingway's Code, section 1102, as amended by chapter 25, Laws of 1917), reads as follows:

"If any person, on the first day of the week, commonly called Sunday, shall himself labor at his own or any other trade, calling, or business, or shall employ his apprentice or servant in labor or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall, on conviction, be fined not more than twenty dollars for every offense, deeming every apprentice or servant so employed as constituting a distinct offense; but nothing in this section shall apply to labor on railroads or steamboats, telegraph or telephone lines, street railways or in the business of a livery stable, garage or gasoline stations, meat market or icehouse."

Section 1367, Code of 1906 (Hemingway's Code, section 1103), reads as follows: "A merchant, shopkeeper, or other person, shall not keep open store, or dispose of any wares or merchandise, goods or chattels, on Sunday, or sell or barter the same; and every person so offending shall, on conviction, be fined not more than twenty dollars for every such offense; but this shall not apply to apothecaries or druggists who may open their stores for the sale of medicines."

Our courts have generally held that transactions made in violation of the Sunday law were void, and that no party could recover on such contracts, when they were in pari delicto. InMiller v. Lynch, 38 Miss. 344, it was held that a promissory note executed on Sunday to secure the payment of a balance due by the maker, upon a statement made on that day of transactions which previously took place between the parties, is void. InKountz v. Price, 40 Miss. 341, it was held that a note executed on a secular day as security for the price of property sold and delivered to the maker on Sunday was void. In Jones v.Brantley, 121 Miss. 721, 83 So. 802, 8 A.L.R. 1353, we held that an attorney could not recover for that class of legal services rendered on Sunday which the statute did not authorize to be done on Sunday, but that he could recover the reasonable value of a retainer made on a secular day; the contract being a divisible contract. The attorney there was not permitted to recover for legal services rendered on Sunday, which were not authorized by the statute.

Before the manufacturer in this case was liable to any person for a breach of its warranty of the fitness and purity of its drink, the party injured thereby must have some kind of rightful possession of the drink. The implied warranty runs with the sale and passes with the title, and where the sale as in this case is made void by the statute, and where he is a participant in the sale, he cannot recover, although the statute makes the crime, apparently, apply to the seller alone. His action in making the purchase is illegal. It violates both secular and sacred laws in doing so, and the courts will not give him relief for injuries he suffered in so doing, where the injury is brought about by his own illegal act, or an illegal act in which he is a joint participant voluntarily.

The judgment of the court below will therefore be reversed, and judgment entered here for the appellants.

Reversed and judgment here.

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Dissenting Opinion

I dissent from the view of the majority as to nonliability because the drink was purchased on Sunday. The rule announced is not only erroneous, but is calculated to be of great injury to the public. It means that an innocent person, who purchases a bottled drink on Sunday and finds it poisoned or so filled with filthy flies, like the present case, as to cause him great sickness and suffering from drinking it, has no remedy against the seller or the manufacturer of the poisoned drink. The rule ofpari delicto cannot be invoked, in my judgment, because the principle is not involved.

The manufacturer of the bottled soft drink impliedly warrants its purity to the public. This has been held many times by our court and is conceded to be the law. And when the manufacturer bottles a poisoned drink, or poisons it after it is bottled, he is liable to any person who may purchase and consume it, and that is true whether it is purchased on Sunday or on a secular day. The breach of the warranty of purity is committed at the time when the manufacturer bottles the poisoned drink and puts it upon the market for sale. The purchase and drinking of the fluid on Sunday is merely incidental to the breach of the warranty by the manufacturer, committed on a previous day when he bottled the poisoned drink.

The purchaser on Sunday violates no law whatever, and therefore it is not the innocent and lawful act of the purchaser which brings about the injury, but the efficient and proximate cause of the injury is the bottling of the poisoned liquor on a previous secular day; the purchase and consumption of the article happened to be on Sunday but the fact that the drink was purchased on Sunday was not the efficient cause of the injury. The implied warranty of purity by the manufacturer was made on a legal day — the day the bottle was sealed and offered to the public for sale with the flies in it. The purchaser of the drink was no party to the bottling of the flies. The time when the drink was purchased, to-wit, Sunday, did not in any way contribute to the breach of the implied warranty of the manufacturer, nor to the injury and damage resulting from the poisoned condition of the drink.

The buying and drinking of the liquid on Sunday was merely incidental to the breach of the implied warranty by the manufacturer, when he bottled the drink and put it upon the market for the use of the general public. His warranty of purity was to the general public, and the so-called contract of guaranty of purity is a warranty provided by law for the benefit of the public, and in that way is different from the warranty in the private individual contract, and therefore the same principle with reference to when such contract is breached does not apply; but, I think, in such a guaranty the breach takes place at the time the manufacturer bottles and seals his poisoned goods and puts them upon the market for the use of the innocent public.

The rule announced by the majority opinion will have the effect of freeing from all liability every vendor of drinks, creams, confections, etc., sold on Sunday, regardless of the amount of damage that may be done to innocent men, women, and children, who happen to purchase poisoned drinks during the Sabbath, although they are perfectly innocent so far as violating any law, and they may believe they have the right to assume that the drinks sold them on any one of the seven days of the week will be pure and fit for use. The majority holds, however, that for poison administered on Sunday there is no liability. There is no reasonable basis for such discrimination against Sunday.

COOK, J., concurs in this dissent.