*1 38,951 38,959 Nos. Nichols, Minor, Friend, Her Next Judy Nichols, Ann Frankie Mother, Natural Appellee, v. Ed E. Guardian and an Indi Nold, vidual, business as doing Pepsi-Cola Bottling Company; Dave Individual, an doing Bottling Elsey, business as Mission-Orange Individual, Company, and Phil D. business doing Whiteman, Market, as Phil’s Appellants.
(258 317) P. 2d Opinion filed June 6, 1953. Vance, City, argued C. E. cause, of Garden Fleming, and A. M. Bert J. Vance, Hope, Jr., and C. City, R. all of Garden were with him on the briefs appellant, for the Ed E. Nold. Gould, Dodge City, argued cause, Geo. R. George Gould, Jr., R. Dodge City, was with him appellant, on the Elsey. briefs for the Dave Wallace, City, argued cause, Lang, W. Scott and D. B. James Scott City, appellant, him with on the briefs for Phil D. Whiteman. Payne Ratner, Wichita, argued cause, McClellan, H. and Ora D. Mattox, Payne Ratner, Jr., Michaud, Cranmer, Louise II. Gerald L. Russell Dale Stinson, Jr., Calvert, Jr., Wichita, B. and Starr all of were him on the briefs appellee. for the court was delivered for C. This was an action in- personal Harvey, J.: juries alleged to have resulted from the of defendants. The defendants have from orders of the court appealed overruling their demurrers to third respective amended petition. question may summarized as follows: The mother, friend, and her as next reside in Scott City. defendant, Nold, Ed E. resides Dodge City, under the name of manufac- in the business Company Bottling
of the Pepsi-Cola including beverages, of bottled various kinds turing selling him at his plant and bottled is manufactured *2 which “Pepsi-Cola,” charged are said City. containing beverages The bottles Dodge com- Pepsi-Cola carbon dioxide or carbonic acid gas. and referred to drink is advertised monly known and as a soft and forth to the public by “Pepsi- held defendant under the trade-mark beverage, which Cola” enjoyable as a and refreshing, sparkling or through individually sold and either delivered said defendants restaurants, stands, cafes, grocery lunch distributing to various agents Dodge City, stores and the cities private throughout homes and territory; Garden Scott towns City, City surrounding and defendant, that the business as the Mission- Elsey, doing Dave handles, Orange of Garden Bottling Company City, transports, distributes quantities of in the above mentioned Pepsi-Cola products territory and has from the defendant Nold acquired quantities bottles of Pepsi-Cola for distribution throughout the men- territory handle, tioned and has and does and distribute the same transport defendant, to the Whiteman, Phil D. business as Phil’s Market doing at Scott City; receives, that the stores, handles, defendant Whiteman displays, offers for consumers; sale and sells to ultimate May that on 24,1951, Whiteman mother, sold to plaintiff’s who paid necessary therefor, consideration some bottles of Pepsi-Cola which she took home; to her thereafter, on the same day, plaintiff, who was in an going automobile to stay all with a night neighbor girl, took two of the bottles so purchased, and as she entered the automobile laid them on a quilt seat, covering front and as she was bending over the bottles one of the bottles of Pepsi-Cola exploded in plain- face, tiff’s with the result that a particle particles of glass from the exploded bottle struck and lacerated her nose and entered and punctured her left eyeball. Plaintiff alleged that at all times material, from the time the bottle of Pepsi-Cola was removed frоm Market, Phil’s where it Whiteman, was sold to her defendant until the bottle face, exploded in her it had been handled carefully, and that the explosion of the bottle Pepsi-Cola was not caused by fault, due to negligence or improper of the same handling part of plaintiff. It was further alleged: exploded “. . . said bottle would not if have due care had been used defendants; concerning all the facts and circumstances of and the manufac- Pepsi-Cola, contained, ture of said the bottle in which same was and the method bottling distributing same, peculiarly exclusively within the knowledge defendants, knowledge plaintiff.” of the and not within tire of the
It was further alleged (Paragraph 7): alleges herein, Pepsi-Cola “Plaintiff that at all times material bottle exploded solely exclusively in this face was within the possession defendants, during successive all control of each and manufacture, bottling, inspection, handling, storage, transportation, distribu- tion, during negligent sale or user and in which the time acts of the defend- ants occurred. know, therefore, attempt allege “Plaintiff does not does not or de- specific negligence guilty, scribe acts of of which the defendants have been proximate injuries and that have been the cause of the to the described; but, alleges explosion herein states and that the Pepsi-Cola resulting injury plaintiff, aforedescribed bottle of with the to the place except an occurrence which would not have taken for some act or acts of negligence manufacture, bottling, inspection, handling, of the defendants in the storage, transportation, distribution, alleges sale or user Plaintiff thereof. explosion Pepsi-Cola resulting injuries of said bottle of and the to the plaintiff, part tire direct result of some act or acts of were on the *3 possession defendants while in the successive exclusive and control of manufacture, bottling, inspection, handling, storage, transportation, dis- tribution, sale, Pepsi-Cola.” user of the said bottle of remainder of the petition The was devoted to a description and treatment and the injuriеs for relief. prayer There a second cause of action in which made all plaintiff her cause of allegations except paragraph first reference, and further alleged: part alleges manufacturing, handling, distributing further that in “Plaintiff and selling Pepsi-Cola, the aforedescribed bottle of the defendants and each of them impliedly public plaintiff to the of which warranted this was an ultimate con- manufactured, distributed,
sumer, handled, the article so and sold was fit and safe consumption, manufactured, bottled, handled, for human was so and sold inherently imminently dangerous. plain- such a manner as not to be upon warranty. explosion Pepsi-Cola relied said tiff of said bottle of resulting injuries proximate was the result of the negligent warranty by manufacture, breach of said all the defendants in their distribution, handling bottling, selling of said article.” for the respective Counsel defendants in their briefs in this court as the for our present principal question determination the conten- tion that so far as action is predicated doctrine of res ipsa it cаnnot be loquitur applied because there are defendants; three the doctrine does not lie where there are plural defendants. is not taken. point well is true the doctrine is applied many
cases where there
but one
is
defendant and the rule of its application
that he be in
requires
exclusive possession or control of the thing
which is
alleged
cause the injury. But the rule is not limited to
that.
In
pear injuring was under the control or that the defendant nothing it has been held that there time of the accident. However at the principles support reason for tire rule or the it is founded to (Citing application quoting so limited.” contention that Sindell, follows:) Bottling 117 A. Co. v. Md. referred to in the statements and definitions “The of the doctrine of ‘control’ necessarily ipsa loquitur injurious agency is not control of the the time res at negligent injury.” act which caused the of plural This was case defendants. re- Apparently plaintiff .all of judgment against covered them. The manufacturer of the alone and contended the doctrine of beverage appealed ipsa res did not for the reason that it was not in control loquitur apply at This contention injury. the time was denied and the affirmed. judgment was
In 65 C. S.
it is said:
J.
“However,
against plural
the doctrine
be availed of as
defendants who
were,
involved, joint
under the circumstances
tort-feasors.”
In Loch v. Confair, Appellant, 372 Pa.
present case, that, discloses, it is obvious plain- so far as the evidence the wife therefore, own, through injured any if the occur- of her not fault tiff was part on of either of the de- the rence of the accident was due to fendants, plaintiffs clear that the break- to redress. It is too should be entitled itself, ing in the have resulted from a bottle of the bottle could defect over-carbonation, pressure or from the or from an excessive internal due to subjection atmospheric temperature changes, of the bottle to some extreme example, striking object. mishandling, by a or from some the of it hard as Manifestly entirely beyond ability plaintiffs to it would the of the ascertain be accident, possibilities establish which of these was in fact the cause the Beverage readily explain equipment Company whereas the defendant could the bottling employed by and the methods it in ale A. the and the defendant & P. Company equally position explain handled, a in the it manner in which displayed protected placed on bottles shelves sale. It would its seem, therefore, notwithstanding applicability limitations of the ipsa loquitur to, previously doctrine of res and exclusive control referred that justice plaintiffs reason and alike should entitle to the benefits of those methods establishing prima having a facie case. Plaintiffs testified manner in to the occurred, which the accident the burden should then rest the defendant Company A. &P. possession to show that after the bottle came into it was not subjected any mishandling any atmospheric temperature or to unusual changes. duty Beverage Company would then devolve to estab- operations lish it according conducted its with due care and to the usual proper generally employed bottling industry. methods in the It would then jury explanations have been for the satisfactorily decide whether such excul- pated charge either or negligence, both defendants from having Beverage mind Company as to the defendant might humanly that it be im- possible, care, even with the every every best to discover latent defect in possibly one of prevent possible hundreds of thousands of bottles or to excess pressure perhaps single them, having one of likewise mind as Company to the might defendant A. & P. equally impossible that it be prevent a being bottle aon shelf by struck or otherwise mishandled some careless customer in a words, might crowded store. In other be found that question the accident here in was one that could not have been avoided the exercise of reasonable care judging either or both defendants them duty, if, reasonable standard of court, jury capriciously otherwise, remedy lie, concluded always would as under such circumstances, granting of a new trial. “In judge view of what has been said it is clear that the learned trial should Company, entered a & have nonsuit in favor of the A. P. but should have kept verdict, both respective defendants in the case until final so that their liabilities, any, given if could be better determined and each opportunity duty establishing well as guilty any negligence that it was not banc, therefore, resulted in the accident. court en removed the nonsuit granted plaintiffs favor of entered in the one defendant and a new trial as to other; proper light tire such action was principles circumstances and herein discussed.” 486, 154 In Ybarra v. 25 Cal. 2d Spangard, P. 2d consulted doctor Tilley, diagnosed who his ailment as appendicitis *5 by performed an to be made arrangements appendectomy
and Swift. Doctor managed by and hospital Doctor at a owned Spangard an anesthetic another hospital, given Plaintiff taken to the with one or more nurses doctor and the operation performed, he felt in from the anesthetic attendance. When he was awakened of thе point about half between the neck and the sharp pain way to the nurse and the doctor who right shoulder. He complained the in gave pain him treatments while in diathermy hospital. worse, continued, the arm of grew paralysis atrophy and developed doctors, about the shoulder. He sued each of the the muscles the doctrine predicating hospital nurse res court ipsa loquitur. judgment The trial entered of nonsuit as defendants and plaintiff appealed. supreme to all court re-' Gibson, In the in an C. it was opinion versed said: J. position that, showing . no. “Defendants take the . . there is that the particular any defendant, any particular instrumentality, nor act of was the attempt They liability action as an to fix cause thereof. attack defendants, responsible ‘en masse’ on some of whom were not for the various others; they point further failure to. show acts of which defendants may the instrumentalities that have been- involved. Their main control of briefly propositions: (1) be stated in where are defense two that there defendants, responsibility is a of an and there division use several might causing injury, injury instrumentality have resulted from persons, ipsa loquitur separate or more rule res either one of two tire act of against any them; (2) one of that where there are be invoked cannot instrumentalities, showing made as to which caused the and no several it, particular injury defendant control of the doctrine cannot as to the or however, objections satisfied, are apply. these not well taken in We this case. the circumstances ipsa loquitur ‘(1) has conditions: the accident of res three “The doctrine ordinarily not in the absence of someone’s does occur of a kind which must be agency instrumentality (2) within negligence; it must be caused defendant; (3) it must not have been due to of the control exclusive (Prosser, Torts, part plaintiff.’ voluntary on the action or contribution situations, including variety cases applied of medical p. 295.) in a wide It is authorities.) hospital (Citing care. treatment dental ipsa uncertainty however, the extent res is, to which some “Thеre injury medical treatment. This loquitur cases be invoked emphasis decisions, lay tendency, undue some part due to the give doctrine, its under- too little attention to basic and to limitations of the simple, rule purpose. that a understandable lying result has been background evidence, sense and human common a sound circumstantial formula, rigid legal occasionally transformed into experience, been has many important application it is most arbitrarily precludes cases where serve a useful applied. the doctrine is continue to If that it should purpose, particular forget justice rule, we should ‘the force regarded presumption throwing upon party charged duty as a *6 of producing evidence, in the consists circumstance that the chief evidence of cause, culpable innocent, practically the true whether accessible to him person.’ (9 injured ed.], 2509, Wigmore, but inaccessible to the Evidence [3d § 382, p. cited.)” and authorities trial court was reversed. a trial judgment Upon later rendered for as each of against was the defend- judgment This affirmed judgment ants. was Ybarra v. appeal. (See, 43, 93 208 P. Cal. 2d 2d Spangard, App. 445.) cases, This case has been cited and followed in large number of states, in in California other but as shown Pacific Citator. Bank,
In Schroeder v. & County Savings 293 City Albany, N. Y. 370, 57, when, 57 N. E. 2d was injured at the of request he was make secure aiding to a barricade which police, had been constructed for to the bank repairs and which building had col bank, He sued the two lapsed. construction companies, and others of damages. pertinent portion reads: charged jury correctly after the “The trial court defendants had rested evidence, putting any the close of case without that the at doctrine (Galbraith Busch, ipsa 230, 234; loquitur applicable. v. 267 of res N. Y. was Inc., York, 108, 116.) Foltis, City jury v. 287 N. Y. After the New had re Bank, against Sano-Rubin M. turned verdict the defendants Gerber Con Inc., Company, against trial set court aside the verdict as struction three two defendants. think was error. The latter We either defendants rotation, simultaneously necessary nondelegable supervision alwаys or in with remaining Bank, possession instrumentality were which caused plaintiff. injuries put of the three They None defendants defense. collapse. necessary ones cause of the is not were the who knew the for the loquitur applicability ipsa single person of the res doctrine that be but a there damage. Where, here, in control of that which caused one or some or interdependent super three are in burdened all of defendants control and with barricade, explain of a vision street is for them to their action it and conduct collapses damage (Citing it when resultant to another.” authorities. italics.) Our question defendants an action plural predicated on loquitur the doctrine res is not new in ipsa altogether this state. Co., 755, 404, In v. Kansas K. V. City, Woods Rld. 134 Kan. 8 P. 2d In the defendants were two railroad v. companies. Wesley Ratliffe 859, 135 Kan. P. 2d Hospital, 10 the defendants were a hospital Markets, Inc., and a nurse. In Food El Starks v. Dorado Refining 2d 134 P. there were numerous defendants. to be sus to the petitions demurrers directed this court Although & Company, Riss Wаterbury reason. for that it was not tained In that four defendants. there were 219 P. for defendants counsel urged by specifically point case no to limit There is reason adversely them. determined one a case where the circumstances number defendants liable. or more bemay that two disclose pleaded that the doctrine Elsey argue Nold and Counsel for the appellants not in because were they cannot to them ipsa apply of res loquitur the time at Pepsi-Cola exploded, “control” of the bottle is that doctrine cite cases that one the essentials holding time in the exclusive control at the of the accident. defendant be Those statements made in cases in which the circumstances were if must have occurred at the time negligence, any, disclosed that the the accident. The real test defendants in control whether were *7 time act or omission either at that negligent at the which that time or later the accident. The fact did not produced plaintiff know which one of the defendаnts was the guilty accident, the or was the cause of when where it took place, which the for all of as naming parties reason them defendant. action is second cause of the breach predicated upon alleged an implied warranty that bottle of Pepsi-Cola the been “so manufactured, bottled, handled, and in such sold manner as not to imminently dangerous.” be inherently Counsel for appellants construe this as not claim the allegation being attempt to that unwholesome, contents of the bottle were and cite Parks v. Pie 93 Kan. 144 Pac. and other cases which only to pertain think unwholesome food. We allegation is not petition contents, the allega- limited to but that the unwholesomeness as as the true the tion to the bottle well contents. pertains of Pepsi-Cola, generally speaking, of the wholesomeness question involved, exploded is not but the bottle that and its con- particular involved. We are not with impressed suggestion tents both if knew plaintiff charged gas that the bottle was that no re- can all the covery be allowed. knew about it Perhaps that contents were a drink. refreshing Neither are we about the of contract. Each greatly privity concerned of these sold, defendants intended the bottle of be and it was Pepsi-Cola that it and the alleged was sold consideration paid therefor.
621 Whiteman for the contend that appellant Counsel the second contract, argue cause of action is that predicated upon it is tort, such cause improper join of action with one for alleged Burks citing first v. Aldridge, cause & 121 P. 2d Distributing Co., and Frier Proctor Gamble P. 850. Neither of helpful these cases is appellant. the Burks case sued a highway contractor resulting alleged negligence of the contractor constructing highway, joined as a defendant the surety on the contractor’s bond. This court held that was improper reason that the bond in question was an indemnity bond as distinct from a liability bond.
In the Frier case the plaintiff sued the manufacturer and dis- of a tributor washing compound, the use alleged she caused injury her hands. Hеr testimony disclosed she used for several compound months the after learned she that it irritated injured otherwise her hands. The other witnesses she called testified that their hands had been irritated the compound, but they had ceased its on discovering use At that fact. the close of evidence, and when the case was being submitted to the court raised, merits, the on its question was whether the case was being prosecuted negligence, which plaintiff barred might her own conduct respecting use of the washing compound, or upon contract. Counsel for plaintiff they stated were proceeding contract, express and implied. court expressed view no there was privity contract between plaintiff and either of the defendants. Attorneys for the plaintiff concurred view. the trial court Thereupon rendered judgment for defendants. The trial court was justified ruling in its based this concession. *8 Whether counsel for plaintiff went too far in conceding there was privity no of contract the between parties suggested was not nor record discussed in the is opinion. There substantial authority the to which contrary, naturally was not referred into the opinion. The only point upon the case can be relied as an authority is that under some the plaintiff circumstances in such a case, in, after all the evidence is be called to upon make an he election as to whether is proceeding upon negligence or contract. The authorities it clear an make that implied warranty does not a necessarily I., Rest., involve contract. In A. L. Security, p. term is defined 82j, the as follows: § obligation by imposed warranty’ law where ‘implied an denotes “The term representation promise.” or is no
there “Aas implied warranty warranty defines Dictionary Law Black’s the the parties an inference from acts law as by the raised transaction,” giving the illustrations. of circumstances sales, it is as said: Dictionary, p. pertains Law In Bouvier’s being made, which, expressly warranty the law implied not im- is one “An given.) (Many plies illustrations are by of the sale.” the facts as S. the term is defined follows: In 77 C. J. they by оperation do “Implied of the law not warranties are created any agreement parties, they but created con- fact of the will not be arise from parties. principle
trary of war- manifest The to the intention exception emptor.” ranties is an to the rule of caveat Contracts, 5 Williston on reads: § “Warranty may, not, but based on contract. need now, course, promise, that a “There can be no doubt of con- seller him, purchase goods from he be answerable for sideration of the of will that or, indeed, present, open their future condition. Nor is it to doubt their for goods thereby enters a who in terms which he sells into that seller warrants making warranty a contract. But when a seller is held liable on a an such regard purchase, goods in order to affirmation of fact induce their hold speak language pure is an affirmation a contract is to of fiction. such that by positive the law the law not be and it is not a seller who should that buyer bargain liability escape a a affirmation induces to enter into cаn representation denying positive affirmation an offer to A his was contract. enough representation to render The fact which of fact is him liable. of induces Wilson, warranty. (Citing 191, 195, bargain a is a Foote v. P. truth, obligation 430.) imposed upon in such a case is seller im- posed agreement it, not him virtue of but because of a his assume irrespective applied agreement. obligation law of in such a rule of case contractual, represen- quasi falsity and at if the seller least of his knows also a tort. tation there is obligation a thought of seems the nature warrantor’s “The confusion of as to assumption great that the basic character measure to be in due to consequent same, always in modern obligation allowance times and to any warranty, assumpsit equivalent remedy whether breach representation. assumpsit constituting reality But a contract or warranty remedy near the close of the until allowed as a for breach special warranty century century. is older than eighteenth law warranty regarded assumpsit. as an action of deceit action on a as an action of Arid a declaration in of at the outset tort. was thus conceived regarded permissible. allegation generally is still as of scienter tort without not, holding supposed, following is sometimes a mere so The decisions exist; they authority earlier early after the reason for the rule has ceased to warranty hybrid recognition is a between tort involve fact contract. *9 only place express implied “Nor the law of sales the where or innocent misrepresentations may impose liability party making as a warrantor on the restaurant-keeper may principle them. A furnishing poor on this be liable for food, building and one who hires or construction work make liable himself adequacy plans (Our italics.) which he furnishes.” Torts, Ed., 422, Pollock on the Law 15th said: parties “Wherever the duty have come into a such relation that a to take proper care can any contract, be established without reference to there the duty by negligence tort, violаtion of that is a whether it consist in commission or omission, and whether there be in fact contract or not.” On page 417 of Pollock it is also said: “Wherever there something, is a obligation contract to do of the con- only tract obligation is the parties regard performance, between the to the duty whether there was a injury antecedent contract or not. But tort, would have been a duty existing law, as a breach of a at common if there any contract, not been is still a tort.”
This thought is not In 2 new. Wendell’s Blackstone after contracts, stating agreements and the author says: agreement may express implied. “This contract Express or be either or con- agreement openly tracts are where the terms of the are uttered avowed at making, ox, timber, time of the as to deliver an or pay ten load of or to price goods. Implied stated dictate, for certain justice are such as reason and which, therefore, presumes every the law perform.” man undertakes to (Giving examples.) And in volume after pаge speaking contract, express author says: express “From easy these contracts the transition is to those that are implied by justice dictate, law. Which are such as reason which, therefore, presumes every the law perform, man has contracted to presumption this persons makes him answerable to such as suffer his
non-performance.” And at page 162 it is said: “A second class of contracts such as do not arise from the ex-
press
any court,
positive
determination of
statute;
directions of
but
reason,
just
from natural
and the
construction of law. Which class extends to
presumptive undertakings
all
assumpsits;
.
.
.”
The same doctrine permeates
in MacPherson v. Buick
382, 390,
Motor
217 N. Y.
where it be. 465, 350, Co., 295 Mass. 4 N. E. 2d v. News In Schuler Union to been alleged poisoning for have caused action was death at The peti- defendant’s restaurant. a sandwich by eating turkey brought negli- in tort for The first was tion was three counts. was for result- The second count gently causing death. unimportant. held The third suffering, which' was ing conscious sandwich was warranty turkey count was upon implied n a count trial court directed verdict fit for food. On first defendant, and on the third plaintiff excepted, for which count $3,500, excepted. of to which defendant recovered verdict sustained judicial plaintiff’s court Massachusetts supreme In exceptions. opinion and overruled defendant’s exceptions the court said (p. 352): warranty properly was included in the decla- “The third count for breach tort, contract, action well as an
ration in an action of An action of tort. warranty. definitely by may upon This was laid down be maintained a false Gray, Doherty, 758], 372 [63 v. 3 Am. Dec. Chief Shaw in Norton Justice judgment defendant in such an action of for the tort was held bar where upon warranty.” (Citing many the same a later action of contract authorities gone holding jury further that the case should have on the first count.) v. Mahoney Square In late Shaker Beverages case (Ohio), 281, 2d an action for damages resulting 102 N. E. from the explo- ale, was based a claim bottle case sion warranty. Defendant demurred ground no much stated. was cause of was There discussion In the opinion citation of authorities. the court said (p.288): when the “It to be the law of this state that ultimate consumer seems may warranty, goods in tort one for maintain an action violation of the he pursue may join which the two causes of action in choose course complaint.” same &Con. Dist. Imp.
In Santa Maria Water v. Towery Equip. Co. S. it held W. 2d (241 755): App.), (Tex. right alternatively Party for breach of contract and for has to sue grow conveniently out both claims of same transaction and can tort where Procedure, together. litigated Civil rule Rules of 48. & Smith, 399, Assts. Union Ptg. Int’nl Pres’m’n v. 145 Tеx. 198 729, 730, held:
S. W. duty against corporations public service for breach of a In actions contract, provided imposed by the action be both law and is also “tort,” having regard complete which, to the most redress in “contract” and in stated, the facts can afford. law 101, In Buck 160 Misc. 289 N. Y. S. it was Bakery, Jones held: seeking damages allegedly through purchase consump- Plaintiff suffered impure complaint join tion of loaf held of bread entitled to one cause of action alleged negligence
based on in manufacture and sale of bread with one based on alleged warranty breach of where acts of manufacture and sale were identical (Civil Act, in each cause of action Practice as amended Laws § 339). c. Putnam, In Warren v. Div. 33 N. Y. S. 2d it was App. held: fraud, inducing making repre- 1. A cause of action for of a contract false *11 sentations, may complaint be united in the same with causes of action for contract,
breaches of such where the causes of arise out of the same transaction, subject connected with the same of action. permissible plead liability 3. It is on two different theories in the same complaint liability if arose in same transaction or series of transactions. 820, In Leoni v. 179 P. 2d it Delany (Cal.), was held: seeking recovery “4. Where a reasonable doubt exists as to whether one express implied contract, services rendered is entitled to recover may plead according proof. a claim he each and recover to the may phases “5. Different causes of action be stated to meet such fairly reasonably anticipated.” evidence as be and In Crops Cooperative Co., Cash v. Minnesota C. Valley 257 Wis. 619, 563, 44 N. W. 2d 2 of N. W. par. Syl., was held: “Where a cause of action in contract and a cause of action in tort were complaint, clearly united parties, in the same and affected the same and same parties partiés require constituted all the to the and did not different places separately trial and complaint, causes were stated in the same properly causes of action were united.” Co.,
In & 432, 441, 17 Kniess v. 734, 119 Armour 134 O. S. N. E. 2d 1348, L.A. R. plaintiff alleged he purchased from the pork grocer, which he had purchased Co., & Armour which in swine, fected with parasites peculiar to which he ate and became ill. Most of the deals with the question removal action to the federal court by Armour & Co. The court sustained & Armour Co.’s contention that the case should removed, said: only disposes “This not of that appellant, contention of Company, Armour &
but sets forth that Burmeister could be held liable on contract. liability might “However, Burmeister as a retailer sound in tort as well ‘warranty hybrid the action on a is a be- for as has been well said as in contract ” 4200, (Citing (Rev. Ed.) Williston on Contracts tween tort contract.’ 1505, authorities.) and other section Co., In Davis v. Van 189 Iowa 176 N. W. Camp Pkg. it was held: prepares puts upon “1. A manufacturer who the market sealed packages consumption, human held an article of food for to the highest degree article, preparing impliedly of care such but is also held to consumption. warrant to the ultimate consumer that thе article for human is fit consumer, article, purchasing It follows that the such an is not shackled emptor, and, injured, part, rule if of caveat without want of care on his article, by eating damages against such he maintain'an action for
manufacturer, (1) negligence (2) both for breach of war- ranty, though privity parties.” even there is no contract between tire v. Grand Union & Day Company F. M. Schaefer Brewing 304 N. Y. 109 N. E. 2d a customer brought an action against the operator store and brewing self-service recover for company injuries sustained by the customer beer, bottle of exploded as customer picked it off the counter grocery of self-service store. trial court dismissed complaint at close plaintiff’s evidence. The appellate division, 113 N. Y. S. 2d reversed the judgment ordered trial, a new the evidence holding established a prima facie case against storekeeper. He appealed the court of appeals and contended there was no evidence of his and that the facts did not establish a prima against facie case him and that there breach,of was no implied warranty merchantable quality of beer, bottle as neither sale nor a contract of sale had been *12 made. The decision of the court of appeals reads: judgment against “Order affirmed and appellant absolute ordered on the stipulation, prima with costs in all counts. Plaintiff established facie a cause of negligence. pass upon question.” action in We no other Kunkel, In K. P. v. Rly. Co. in which plaintiff re- covered a judgment against the railway company personal of injuries, questions one was whether tort, the action inwas in which case it was barred by the statute of limitations pertaining actions, to tort or whether it tjae contract and within statute of limitations pertaining actions In contract. syllabus 3 court said: petition alleges “A that carrier, the defendant is a common that carriage plaintiff, certain contract receiving
made a of pay its there- contract, pursuance for, upon such and that cars in of entered its that contract, stop place defendant, to which it did not at the of its violation beyond, by carry him, agreed and then a carried him some distance but attempting injured starting him him down and while sudden of its train threw arising orders, get state a cause of action the train in obedience to off ex contractu." In Erewer court opinion (p. 166) (Justice speaking), used this language: arising is, position “A second of counsel that the cause of action is not one contract, tort, from and therefore it was barred but is founded way, August injury. even if instead of March time of the This claim was the cannot be sustained. While the distinction between actions on contract broad, yet, Staley plain those for is well tort is said case Jameson, mainly rely, quite 46 Ind. on which counsel and in which is a question, always easy
full discussion of the it is not to determine from the allegations placed; in which class the action must be for con- alleged clearly tort, tracts are often actions which sound as often purely tortious acts and conduct of the are averred in defendant actions ex contractu. And often has his election same state facts, contractu, bring whether an action ex or one as ex delicto." .1098, 44, Tort, In 1 S. C. Contract and the black letter state- § J. ment reads: differs from an action ex delicto in that it involves contractu “An action ex contract, duty arising the action while ex delicto involves breach duty imposed law.” breach of of the discussion under the section embodies third paragraph Erewer in the language text the used
as a of the' part Justice as follows: case (17 145), Kunkel general actions in contract and tort distinction between “While the understood, clearly determine whether it is often difficult to and well defined other, system particularly under the code particular one or the action is the particular case pleading, under circumstances either and where might the distinction between maintained. A treatment of form action be involving aspect, a twofold on the one and in tort assumes actions in contract the cause of as for the the essentiаl nature of a consideration of hand only remedy, proper determining form purpose available which is clearly in the form or the other can be which is one whether maintained; hand, particularly where either form of action the other and on question plain- maintained, might as to which form a consideration of question cases both to. some features of this has in fact resorted tiff closely they may be, are, they properly involved, are so related together in 45-51.” §§ considered times, many case has been cited as shown the Kunkel While it cited twice on this in our own Citator, point find we our *13 628 899, Carlson, 657, In 148 Kan. 84 P. on Kipp page 2d
Reports. 660, following: we find the Rly. Kunkel, “In K. P. Co. v. it 17 Kan. was said: “ plain ‘While the distinction for tort is between actions on contract those broad, yet, easy always allega- . . . is to from the it determine petition placed; tions of the in class the which action must be for contracts are tort, alleged clearly often in actions which sound in as often tortious acts purely and conduct of the are defendant averred in actions ex contractu Pomeroy Remedies, ed., “In on Code 5th it is section stated: “ upon when implied, simply ‘But the contract relied is is fictitious promise themselves, may which the law infers from it the tortious acts be possible, principles doubted it is whether in with the accordance true pleading, petition complaint reformed to frame a in all which shall or cases bring show on its face that the has to elected his either in tort action certainly so; or on contract. possible one class of is liabilities it do representations namely, from the defendant’s fraudulent in those which result indispensable allegation of a scienter and deceits. The is action ex distinguishes upon liability, and it in a marked delicto based such a manner implied promises. based But the correlative action when the wrongful taking chattels, liability results from the or conversion of from tres- passes, negligences, wrongs, very or other similar kinds of which are facts alleged promise inferred; are the action of tort facts from is and, according theory pleading, to the true these facts must also be stated contractu, legal without in the action ex inferences conclusions. It follows, conclusively general liabilities, this class as the facts which each, the cause are constitute of action the same in the averments of the com- plaint petition action, must same in each kind if the essential principles°of with, system complied impossible the reformed so that it pleading the face of the alone the election indicate which tire has ”
made.’ The court continued: quasi doubt “When exists to whether the as action based on tort or con- tract, it appropriate has often been held this court that to an words action disregarded, petition interpreted counting tort will be and the bewill contract,” quasi citing 127 Kan. 78 Kan. 148 Kan. 388 pertinent syllabus 126. The reads: contract, “The nature of a cause of whether based on tort or allegations petition. is to be determined from the Where contract, states a cause of action in jury and the case was submitted to the theory, appropriate will, on that words to an action tort be considered as surplusage.” The case is again cited La Iola, Fuel Co. v. Harpe City 445, 448, 105 P. 900. In that case plaintiff to sell to agreed
defendant city and defendant agreed purchase a certain quantity gas period years. of five alleged the defendant failed and neglected to take the amount agreed take *14 447, failure at Beginning page to recover for to do so. damages was it was said: argument petition not “We are an that the confronted with elaborate upon theory. question usually doubt
framed That arises when there is definite (Sluss action v. Inv. whether the sounds in tort or Brown-Crummer contract. Co., 847, 965; Kipp Carlson, 899; 657, 137 Kan. 22 2d 2d P. v. 148 Kan. 84 P. Rly. 145, Kunkel, 166.) present K. P. Co. v. Kan. in contract. 17 action is upon theory.” was formulated a definite 338, R. in an an- 20 A. L. 2nd The case is also cited in annotation Also, in 157 Action—Limitation of time. notation on Passengers ex con- on to Person—Action Injury A. L. R. 782 an annotation tractu. 92, 227, said:
In 71 C. S. it is Pleading, § J. proceed single practice pleading requires on a “Good initial theory; but, pleading may systems, held and definite modem his under code cases, theory.” (Citing many any if it states sufficient a cause of on 183, 1059; including Wakefield, Prairie Grannell v. 169 217 2d Sinclair Kan. P. 540, Dellinger County Worcester, 947; Social Oil Co. v. 183 2d v. 163 Kan. P. County, 207, 513; Harper Board v. 155 124 P. 2d Kan. Welfare Lofland Croman, 312, 772; Campbell, 294, Fleming 152 Kan. 69 103 P. 2d v. 146 Kan. 718, 239, 588.) Scherger Bank, P. Nat. v. Union 138 Kan. 25 P. 2d Jones, v. the case Malone we note Turning to our own cases 92 815, 387, rehearing, opinion denying and the 91 Kan. 139 Pac. eating for from 708, 142 damages was an action Kan. Pac. 274. This this it reading opinion appears tainted meat. From the not for meat serving for an action brought simply consumption. suitable for human 202, Co., Pie 93 Kan. 144 Pac.
In the case Parks negligence upon action was predicated discloses that the opinion handling in the method of defendant in the manufacture dealer, sold it who retail who to plaintiff, which it to a sold pie, apparently placed ill from it. The decision was eating became 1 Syllabus of an reads: implied warranty. the doctrine consumption does so under food for immediate human sells who “A dealer purpose guaranty for that it is wholesome for the representation and an is sold.” Co., 53 P. 2d 143 Woolworth v. F. W. In Stanfield consideration, but the pertinent for two not available the petition read: the syllabus paragraphs provides compensation, who, food for immediate con- sells or One “2. This is true impliedly food to be wholesome. warrants the sumption another properly aspects classified as a sale. all of its is in transaction
whether whom, compensation, provided One for a food is sold or immedi- “3. consumption, poisoning consuming ate and who suffers food as a result of food, may upon implied warranty maintain an action of its wholesomeness alleging proving negligence preparation without in the selection or of the food provided the one who sold or it.” cites and comments on a number of cases. & In Swengel v. F. E. Wholesale Grocery P. 2d petition clearly upon discloses relied both implied warranty. The pertinent paragraphs n - read as follows: syllabus “1. case where a dealer sells articles of food for immediate human consumption, purchaser may rely implied warranty that such articles deleterious, injuries wholesome and in the event he sustains *15 consumption thereof, he waive tort there have been and maintain upon implied warranty. his cause of action such consumption “2. Where articles of food for human are manufactured or packed by packer, a manufacturer or a series of transactions reach a consumer, packer, retail dealer who sells to the the manufacturer each impliedly intermediate and the retail seller warrant that such articles of dealer consumption.” food are wholesome fit for immediate human Co., In Bradley Springs Conway Bottling 118 P. reads: syllabus opinion ipsa loquitur “Under the facts set out in the the doctrine of res upon properly by plaintiff personal injuries relied in an action for resulting explosion Pepsi-Cola.” of a bottle of There trial negligence. had been a The case predicated Defendant contend- agrеe. appealed, was unable to by jury, which demurrer evidence should have been sustained. ing cases it would seem that a may rely upon Under our own implied warranty, may plead alone or upon negligence or, both, warranty; if he pleads and recover on he implied may waive implied warranty. tort and recover on certain plaintiff From the received a petition severe injury If the proper parties without fault of her own. are made defendants the court should not be too about the particular theory upon which should be petition she recovers. considered as a whole. fact, so-called second cause of makes all of the first cause the seventh of it except paragraph, part by reference. seventh of the first cause of paragraph action is the one that the doctrine of ipsa res specifically pleads loquitur. The second of the second cause of action paragraph is the one that pleads a warranty. breach of Since the breach of an implied war- them, or some of of defendants from negligence ranty usually results fact plain- that defendants from resulting we see no detriment seven of she in paragraph relies tiff pleads negligence the fact true in view of is particularly the first of action. This cause alone viola- rely pleaded waive the tort plaintiff may & Whole- held in v. F. E. Swengel tion of implied warranty, sale supra. Grocery cause action does pleading The result is that second
. court not render demurrable. trial judgment is affirmed.
Smith, J., not participating. in part): Wedell, Limita- (concurring part dissenting J. tions of time and other duties an extended treatment of preclude questions involved.
This action was framed in two counts. The first was based on ipsa, the doctrine of res It loquitur. negligence, sounds in tort. The second count was breach based on It implied warranty. sounds in contract. the first count on the difficulty sustaining
I would have basis of involving ipsa the doctrine of res loquitur some of our decisions past I do so. has been and now is my and shall not endeavor to view toо narrowly we the doctrine some of our applied have parts I doubt the soundness of some of Although cases. I cited concur in jurisdictions from other opinions *16 the the court on first cause of action. the result reached count, stated, as is based on con- implied warranty, The second A is a contract. I cannot that count warranty agree tract. can be a action in breach by alleging “negligent tortured into an tort of war- a result the contract was breached as ranty.” negli- Whether is immaterial insofar the deliberately wholly as fundamen- gence nature is It tal of the cause action concerned. remained a cause breach of damages warranty. of action to recover for That plaintiff in an such as could the tort action this and sue on “implied waive v. warranty” definitely has been established F. & (Swengel E. Co., 555, Wholesale 77 P. 2d Grocery 930) my but in not transform the contract action into a she could tort action. opinion Moreover, on tort the count. already she sued first the on the ground
I have no doubt dеmurrers of misjoinder and tort of action on contract should have been causes sustained. 1949, challenging G. S. 60-705 authorizes the of a expressly petition joinder the improper demurrer for of causes of where See, 1949, also, on the face of misjoinder appears the G. S. petition. 60-601, on joinder of causes of action. It is extend unnecessary to a long holding list cases actions on contract and are distinctly tort and may joined. inconsistent not be See the numerous on subject cases listed under the last two statutes see, also, cited. addition thereto the recent case Frier v. Proctor & Gamble Distributing Kan. 252 P. which was an action a against manufacturer and the distributor of
“Tide” to recover for injuries to a dishwasher’s hands resulting from the use of product. The trial court there required elect whether suing she was “on a contract of warranty negligence.” here, Roth causes of as grew out of the same transaction. We said, held the ruling proper “The theories and of recovery bases are distinct and and re conflicting,” fеrred to Burks Aldridge, 154 121 P. 2d au cited. thorities there
isIt impossible me conceive of a case more directly point on the question misjoinder of actions on contract and tort tiran case, the Frier supra. To be sure the question there arose motion to elect after evidence was introduced but manifestly that does change question involved. on a demurrer to a ruling improper joinder of
causes action is order and is appealable expressly so in made order frame compelled before properly, trial, the commencement of issues which be tried to- To hold otherwise is to gether. nullify statute making ruling on demurrer appealable. readily conceded the practice are here various states differs. We concerned with our own code placed civil and the construction we have thereon.
It also is well to observe that under the pleadings now framed entirely would be for a possible jury render against verdict contract against one defendant on others on tort. I do not under 1949, 60-601, believe of G. permissible provisions S. and the cases cited thereunder.