164 S.W.2d 835 | Tex. | 1942
Lead Opinion
This case is before this Court on certified question. Norman Josey's wife purchased a can of spinach from Jesus V. Ocon, a retail merchant. The label on the can plaintly showed the name and address of the manufacturer or processor. The spinach was unfit for human consumption. Josey's wife and stepson became ill as a result of eating the spinach. Under the foregoing facts, the Court of Civil Appeals has certified to this Court the following question:
"Was Ocon, the retail dealer, liable to Josey for selling his wife a can of unwholesome spinach, plainly labeled with the processor's name and address, upon the theory that he (Ocon) impliedly warranted that said spinach was fit for human consumption?"
We assume that the purpose of the inquiry is to ascertain whether or not Ocon is liable to Josey in damages for personal *625 injuries suffered by Josey's wife as a proximate result of the eating of the unwholesome spinach. The question to be here determined is whether a retail merchant who buys canned food intended for human consumption from a manufacturer, and sells same to his customer for immediate consumption, is liable in damages for the injuries caused to the consumer thereof by reason of the unwholesomeness of such food.
In the case of Jacob E. Decker Sons, Inc. v. Mrs. Pearl Capps, (this volume, page 609)
1 The general rule is well established that in the sale of food products for immediate consumption by human beings there is an implied warranty that the commodity is wholesome and is fit for the purpose for which it is sold. 22 Amer. Jur. 880, Sec. 96; 37 Tex. Jur. 299; 55 C.J. 764; Race v. Krum,
2 It is urged by the defendant that there is an exception to this rule in favor of a retailer who buys and sells goods in sealed containers. It must be conceded that there are authorities which recognize such an exception. Bigelow v. Maine C.R. Co.,
Mr. Williston in his work on Sales, in our opinion, satisfactorily answers the contention that a retailer who sells canned goods should escape the usual liability imposed on a food vendor. In discussing the authorities sustaining such a contention, he says:
"The imposition of absolute liability upon a dealer who sells canned goods of reputable manufacture has been denied by the Supreme Court of Maine on the ground that the seller cannot possibly discover that a particular can is defective, and that it is, therefore, unjust to subject him to liability. The same argument, however, may be made in regard to any implied warranty, not only to food, but of other articles where the seller could not discover the defect. Accordingly, if canned goods are to be made an exception to the general rule governing sales of food, the whole law of implied warranty should be revised and placed on the basis of negligence. But the general principle of *627 the common law is opposed to this, and certainly if a dealer is ever to be made liable for injuries caused by defective goods where he has been guilty of no fault, the reasons are stronger for holding him liable for selling defective food than in any other kind of sale. According to the weight of authority, presumably for these reasons, a dealer is liable for selling such food even though in cans of a reputable brand." 1 Williston on Sales, pp. 481, 482.
The leading case refusing to make an exception to the liability of the dealer on implied warranty in case of canned goods is Ward v. Great Atlantic Pacific Tea Co. (1918),
"There appears to us to be no sound reason for ingrafting and exception on the general rule, because the subject of the sale is canned goods, not open to the immediate inspection of the dealer, who is not the manufacturer, any more than of the buyer. It doubtless still remains true that the dealer is in a better position to know and ascertain the reliability and responsibility of the manufacturer than is the retail purchaser. But the principle stated in Farrel v. Manhattan Market Co.,
In the case of Ryan v. Progressive Grocery Stores (1931),
Nor must it be supposed that all the decisions holding the retailer liable on an implied warranty where food is sold in the original package have been based on the Sales Act. It is true the more of such cases have been decided under the Act, but that is because the act has been adopted in a large majority of the states. There are quite a number of cases from other states decided before the adoption of the Sales Act, or where the Act has not yet been adopted, in which the vendor of food products has been denied the right to escape his common-law liability under the defense that the goods were in sealed cans and he could not know the condition of the contents thereof. Chapman v. Roggenkamp,
"Counsel endeavors to distinguish the Keller case, supra, from the present case. He says that in that case the dealer had an opportunity of inspecting the pork before selling it, which opportunity of inspection the defendant in the present case did not have because the peas sold to plaintiff were in a sealed tin can. Inasmuch as it appears from the opinion in the Keller case, and from several authorities cited therein, that public safety demands that in all sales of provisions for domestic *630
use by a retail dealer, there should be an implied warranty of the fitness and wholesomeness of said provisions for consumption, and inasmuch as it further appears in the Keller case, as also in the present case, that the retail dealer was not aware at the time of the sale of the unwholesomeness of the articles of food, we think that, under the facts of this case and the weight of authority, the defendant is liable on an implied warranty." This case was followed in Sloan v. F.W. Woolworth Co.,
The Sales Act has not been adopted either in Kansas or in Missouri, but recent decisions in both of those states have held the retailer liable. Degouveia v. H.D. Lee Mercantile Co., 231 Mo. App. 447,
"Those authorities which deny liability on the part of the retail dealer, under such circumstances, say that their view of the matter is founded upon justice and reason. Admittedly, those authorities are based upon an exception to the general rule, which all authorities recognize, that is, that under common law principles there is an implied warranty as between the retail dealer and the consuming purchaser in the sale of food, including a warranty of freedom from foreign substances which may be injurious to the latter. Apparently all of the authorities agree that there should be no exception in the case of the sale of food in cans or sealed packages, unless the ends of justice would be better served by making one. We are doubtful if such ends would be better served by denying the liability of the retail dealer. There is no doubt but that the retail dealer is in a better position to know and ascertain the reliability and responsibility of the manufacturer of the article, which he is handling, than the purchaser from him. To adhere to the general rule places the responsibility upon the party to the contract best able to protect himself and to recoup himself in case of loss, because he knows, or comes in contact with, the manufacturer or the wholesaler, as the case may be, from whom he purchased the article and who, undoubtedly, would be responsible over to him, upon a proper showing, on the theory of breach of implied warranty of fitness."
Swengel v. F. E. Wholesale Grocery Co.,
"We think that a merchant, in displaying articles of food for sale, impliedly warrants that each and all of the articles are fit, whether of well known or little known brands, or whether packaged or not, and that the fact that the purchaser chooses one or the other should not relieve the dealer. And if the dealer is liable, under the circumstances instant in this case, so are the intermediate handlers."
A very thorough discussion of the authorities on the question here involved, and of the reasons for holding the retailer of canned goods liable for damages caused by the unwholesomeness thereof, will be found in Cushing v. Rodman, 65 App. D.C., 258,
Our own Court in the case of Walker v. Great Atlantic Pacific Tea Co.,
"It will be noted that in the present case the Court of Civil Appeals, in reaching the conclusion that no implied warranty exists, emphasizes the lack of knowledge or means of knowledge *632 on the part of the seller of the unfitness of the food for human consumption. We turn aside here briefly to note that the Texas statute, known as our pure food laws, in pointed language repudiates this as a defense in all prosecutions for the sale of adulterated foods. Article 717 of the Penal Code in part provides: `It shall not be necessary for the indictment to allege or for the State to prove that the Act or omission was knowingly done or omitted.'
"Again: `No dealer shall be prosecuted under this chapter when he can establish a guaranty signed by the wholesaler, manufacturer, or other party residing in the United States from whom he purchased such article, to the effect that the same is not adulterated or misbranded within the meaning of this Act, designating it. Said guaranty, to afford protection, shall contain the name and address of the party making the sale of such article to such dealer, and in such case said party shall be amenable to the fines and other penalties which would attach in due course to the dealer under the provisions of this chapter.' Article 714, Penal Code.
"See, also, articles 706 and 707, Penal Code, and article 4471, R.S. 1925.
"We mention these only to illustrate a plain legislative purpose to protect the public against the sale of poison food, and to accomplish such it was thought necessary to abrogate as a defense the very matter emphasized as proper in the opinion supra. The sale and purchase in question was made presumptively with full knowledge of the above law by both parties. Defendant's store was what in modern parlance has come to be known as a `helpy selfy.' No statements were made by defendant concerning the kind or quality of the goods in question. The can of corn was so labeled as to conceal from the buyer the identity of the manufacturer. This conduct in legal effect put the retailer in the place of the manufacturer."
3 Aside from the above authorities, which hold the retailer liable, we think the rule which would exempt him from liability merely because he has no means of knowing whether the contents of the sealed cans are unfit for human consumption is unsound in principle. In the first place, the local dealer is the only party with whom the consumer has had any dealings in the transaction. He is the one who got the consumer's money *633
for the worthless goods, and he is the one who should account to the consumer when it is found that the goods are not what they purport to be. In recognition of the obligation flowing from this relation it is a common practice for the consumer to return goods to the retailer and secure a refund of the purchase price when it is found that they are worthless. It is but natural that the consumer should look to the only one with whom he has dealt, instead of going to a stranger, for redress. Moreover, if the retailer is held responsible he will exercise greater precaution in determining the reliability and responsibility of the distributor or manufacturer. In the second place, it would amount to a practical denial, in some instances, of the right of the consumer to redress to hold that he must look exclusively to the manufacturer. It is a well-known fact that in many instances the product has been processed in a distant state or in a foreign country. This is well illustrated by the facts involved in the case of Burkhardt v. Armour Co.,
We hold that a retailer who sells unwholesome food for human consumption is liable to the consumer for the consequences under an implied warranty imposed by law as a matter of public policy, even though the food is in sealed containers bearing the label of the manufacturer and the retailer has no means of knowing that the contents are unfit for human consumption. We answer the question certified by the Court of Civil Appeals in the affirmative.
Opinion delivered July 22, 1942.
Dissenting Opinion
I most respectfully dissent from the opinion of the majority in this case. The following expresses my views:
The opinion of the majority, speaking through Chief Pustice Alexander, holds that a retailer of food impliedly warrants that all food sold by him is free from contamination and fit for human consumption. Such opinion further holds that the retailer's implied warranty, as above expressed, is universal in its application, in that it applies even to food that is put up by a manufacturer or processor in sealed bottles, cans, or other containers, with the name of such manufacturer or processor fully disclosed on the container. *635
I agree that it is the general rule that the retailer of food sold for human consumption impliedly warrants that it is wholesome and fit for the purpose for which it is sold; but I think that the great weight of authority is to the effect that the general rule of implied warranty should not be applied in cases where the food sold by a retailer is put up in bottles, cans, or other sealed containers, with the name of the manufacturer or processor fully disclosed thereon. I think, further, that justice and fair play is better served by the application of the exception to the general rule just stated.
The general rule, which holds the retail dealer liable as on an implied warranty for injuries resulting from contaminated food sold by him, is based on the theory that such dealer has an opportunity to observe and inspect the appearance and quality of the food products which he offers for sale, — and, accordingly, he should be charged with knowledge of their imperfections. In cases where food is sold in sealed bottles, cans, or packages, appearing to be in good condition, the dealer has no knowledge of or opportunity to know their original or present condition. In fact, in such instances the consumer, who can see and inspect the food after the container has been opened, has a better opportunity to discover any contamination or imperfection than the retailer has. 22 Amer. Jur., p. 882, sec, 99, and numerous authorities there cited; 26 C.J., p. 783, and authorities there cited. I think the rule, as supported by the great weight of authority, is announced in American Jurisprudence, supra. I quote, as an expression of my views, as follows from that authority:
"Upon the question whether a dealer, in selling food or beverages in bottles, sealed cans, or sealed packages, impliedly warrants that it is wholesome and fit for food, there is some difference of opinion. The applicable provisions of the Uniform Sales Act, adopted in a majority of the states, are deemed by many courts to raise an implied warranty of the fitness of such foods or beverages. In the absence of any statutory provision, however, which may be construed to imply such a warranty, the majority of the courts passing upon the question have taken the position that the general rule implying warranty of wholesomeness or fitness of provisions for human consumption by a retail food dealer in favor of the purchasing consumer is not to be applied where the consumer purchased provisions put up by a manufacturer or packer in sealed can packages or containers from whom the retailer secures his stock. The reason *636 given in support of this view that the rule of implied warranty between retailer and consumer is not to be extended to a sale by a retail grocer of canned goods which he purchased from the canner is that the doctrine of implied warranty proceeds on the presumption that the seller had some special means of knowledge as to the condition of the provisions which he sells. That rule was formulated upon the theory that the dealer had an opportunity to observe and inspect the appearance and quality of the food products which he offered for sale and was accordingly charged with knowledge of their imperfections. In the case of provisions in sealed cans, bottles, or packages appearing to be perfect, the dealer has, however, no knowledge of their original or present condition. Such provisions cannot be chemically analyzed every time they are used. It is said, therefore, to comport better with justice to hold that where a dealer sells to his customer an article in the original package in which it is put up by the manufacturer and the customer knows as much about the article as the dealer and buys it without any representation from the dealer or reliance upon his judgment, knowing that there has been no inspection of it by the dealer, there is no implied warranty, although the dealer knows that the customer buys it for food.
"Under this rule rejecting the theory of implied warranty between the manufacturer or packer of provisions and beverages in sealed cans, bottles, and packages, the situation of the retailer and consumer regarding injuries from using such products is governed by the rules of law of negligence. Under this theory of liability, the duty the retailer owes to the consumer is to supply goods packed by reliable manufacturers, and such as are without imperfections that may be discovered by an exercise of the care, skill, and experience of dealers in such products generally; and, if he discharges this duty, he will not be mulcted in damages because injuries may be produced by unwholesomeness of the goods. As to hidden imperfections, the consumer must be deemed to have relied on the care of the packer or manufacturer or the warranty which is held to be implied by the latter. However, some courts have pointed out that this does not mean that retail dealers, as a matter of law, are not liable for imperfections in provisions sold in sealed packages, packed by reputable manufacturers, regardless of whether the defects could have been discovered by the use of reasonable care on the part of the dealer. If the circumstances are such that the dealer knew of, or can be said to be negligent *637 for failing to discover, patent imperfections which could have been detected without opening the package, he is liable. However, even under the modern common law a minority of the jurisdictions follow the rule under the statute and hold the dealer liable for injuries resulting from defective food sold in cans on the basis of implied warranty, refusing to draw a distinction between food and other provisions or between food in cans and that open for inspection. It has been held, without adhering to either of the above rules, that where the can containing the unwholesome food was so labeled as to conceal from the buyer the identity of the manufacturer, this conduct in legal effect put the retailer in the place of the manufacturer and rendered him liable upon an implied warranty to one who purchased the can and was injured by the eating of the contents."
The opinion of the majority grounds its holding that the retailer of food put up in sealed containers, with the name of the manufacturer or processor indicated thereon, occupies the position of an implied warrantor to the consumer, on the theory that public policy demands the application of such rule in order to conserve or protect the public health. The term "public policy" is a vague and indefinite one, and to my mind one not susceptible of an exact or precise definition. I think, however, it is a sound principle to say that a rule of law, not statutory, will not be grounded or based on public policy when the enforcement thereof will not accomplish any public good, and its nonenforcement will not result in any public injury. 50 C.J., p. 857, sec. 62. As applied to the sale of food put up in sealed containers, with the name of the manufacturer or processor indicated thereon, no practical benefit to the public health can be obtained by holding the retailer liable as an implied warrantor. There is no escape from this conclusion, because the manufacture or processing of such food is beyond the control of the retailer; and therefore mulcting him in damages can accomplish no benefit, to the public health. It is beside the point to say that the rule of implied warranty will conserve the public health, by making the retailer more careful in selecting the food he offers for sale; because if the retailer is negligent in that regard, he may be held as in a negligence action; and, besides, the opinion of the majority holds the retailer, regardless of what care he may exert in selecting his goods. In fact, such opinion holds the retailer even if the purchaser actually demands or selects the particular brand he wishes to purchase. *638
The opinion of the majority holds that the rule of implied warranty should be applied to the retailer in cases like the one under discussion, because in many instances the manufacturer or processor is far removed from the residence of the consumer and therefore difficult to sue. This can be nothing more than a rule of convenience, and, to my mind, no rule of convenience can ever justify mulcting one in damages who has done no wrong. No authority is cited in the opinion of the majority for such a rule, and I am convinced that none can be cited.
Finally, I wish to say that the Uniform Sales Act has never been enacted in this State; and I express no opinion as to its effect on the question here involved.
Opinion delivered July 22, 1942.