Opinion
No. 26302.
September 24, 1928.
FOOD. Beverage manufacturer owes duty of preventing mixture of foreign substance with beverage through bottling, to general public as well as retailer.
Manufacturer, bottling and selling to retail trade beverage represented to be refreshing and harmless, was under legal duty to see that no foreign substance was mixed with beverage in process of bottling, and owes such duty to general public, for whom drinks are intended, as well as to retailer.
APPEAL from circuit court of Chickasaw county, First district; HON. T.E. PEGRAM, Judge.
James W. Cassedy, Jr. and Rush H. Knox, for appellant.
The case of Coca Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305, recognized the right to sue and to recover damages in a case similar to the one at bar. It was based only upon the breach of an implied warranty without reference to the right to recover on account of the negligence of such manufacturer.
It appears from the opinion rendered in this case, therefore, that where a consumer purchases a beverage from a retailer who in turn had purchased it from the manufacturer, that the title goes with the purchases so made, and that the implied warranty runs with the title. It is manifest, therefore, that the contention that there is no privity between the consumer and the manufacturer is without merit, and further that the manufacturer does, in fact, impliedly warrant that the bottle drink was pure and wholesome. The rule has been established in this state by the cases of Coca Cola Bottling Company v. Chapman, 105 Miss. 864, 64 So. 791; Rainwater v. Coca Cola Company, 131 Miss. 315, 95 So. 444; Grapico Bottling Works v. Ennis, 140 Miss. 502, 106 So. 97, 44 A.L.R. 124, that the manufacturer is liable upon an implied warranty that a bottle drink is pure and wholesome when it is manufactured and put upon the market by the manufacturer for the public, for the injury to the consumer because of foreign or harmful substances, regardless of whether the manufacturer was guilty of negligence or not.
From the authorities above reviewed, it appears well settled, that the declaration filed by the appellant against the appellee states a good cause of action and that the demurrer thereto should have been overruled.
Creekmore Creekmore, for appellee.
The judgment of the lower court sustaining a demurrer to the declaration should be reversed unless the cases of Coca Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305; Grapico Bottling Works v. Ennis, 140 Miss. 502, 106 So. 97; Rainwater v. Coca Cola Company, 131 Miss. 315, 95 So. 404; and Coca Cola Bottling Company v. Chapman, 106 Miss. 864, 64 So. 791, are overruled. The sole question in this case is whether the liability of a manufacturer of beverages to an ultimate consumer is based on negligence in the process of manufacture or on an implied warranty by the manufacturer that his beverage is wholesome. It is generally agreed that a manufacturer of beverages is directly liable to a consumer for an injury caused by the unwholesomeness of the beverage although purchased by the consumer from a retail dealer and not from the manufacturer or bottler; by some courts liability is placed on the ground of negligence while other courts base liability on the doctrine of implied warranty. By far the weight of authority in America is that there is no liability by reason of implied warranty, but any such liability is grounded solely on negligence in the preparation of the beverage by the manufacturer. This is the more reasonable rule, and, as was said by the supreme court of Tennessee in a recent case, permits the innocent to escape while exacting reparation from the negligent and careless manufacturer. We realize that it is an uphill undertaking to get the court to overrule the line of decisions beginning in 1914 with the case of Jackson Coca Cola Company v. Chapman, 106 Miss. 864, but believing that the rule announced by these cases is unsound and that the court in adopting the doctrine of implied warranty inadvertently fell into error and failed to appraise the full force and real effect of the case relied on as authority for this doctrine, we venture to analyze this line of cases together with the authorities from other jurisdictions on which these cases are bottomed, and to respectfully ask the court to reconsider the whole question and put the basis of liability of a manufacturer or bottler to the ultimate consumer on the ground of negligence.
The opinion in the Rainwater case is the first decision in which our court definitely committed itself to the doctrine of implied warranty in this type of case and that opinion is bottomed on the court's construction of the decision in Watson v. Augusta Brewing Company, from the supreme court of Georgia and Pillars v. Reynolds Tobacco Company, from the supreme court of Mississippi.
We respectfully submit that the court wholly misconceived the scope and effect of both of these decisions, and that while both of them bottomed the liability of the manufacturer or bottler entirely on negligence, yet they were cited as supporting the doctrine of implied warranty.
Many cases might be cited holding that there is no implied warranty by the manufacturer running to the ultimate consumer of food or beverages, but these cases will all be found collated in notes to cases heretofore cited, and in the note in L.R.A. to the case of Crigger v. Coca Cola Bottling Company, L.R.A. 1916B, page 877, and the rule will be found stated in paragraph 244 of Williston on Sales, where authorities from many states supporting the text are collected. The states holding that there is no implied warranty include Alabama, Arkansas, Maryland, Tennessee, Massachusetts, New York, Wisconsin, New Jersey, and others.
Believing that the rule announced by our court in the Chapman case and followed by subsequent cases, except the Pillar case was founded upon a misapprehension of the real holding in the case of Watson v. Augusta Brewing Company, and is contrary to the great weight of authority and sometimes works a great hardship on a manufacturer and believing that all wrongs done to and dangers suffered by ultimate consumers may be redressed by an action in tort, we respectfully urge that the court re-examine this whole subject, overrule the cases announcing the doctrine of implied warranty by a manufacturer running to the ultimate consumer, and return to the doctrine of the Pillar case which allows a recovery for negligence only, but puts upon the manufacturer a very high degree of care.
Argued orally by James W. Cassedy, Jr. for appellant, and H.H. Creekmore, for appellee.
Appellant sued appellee in the circuit court of Pontotoc county. The declaration alleges that appellee was engaged in manufacturing and bottling for human consumption as a beverage, a drink known as Coca Cola; that said Coca Cola is manufactured, bottled, and sold by appellee, under an implied warranty that it contains no foreign substance or matter that would be harmful or injurious to persons when drank as a beverage; and that appellant purchased from a local dealer a bottle of said drink so manufactured and sold by appellant, drank a portion thereof, when it was discovered that it contained some foreign substance or matter that made him sick, causing him to suffer, and necessitating the expenditure of money for medical attention.
Appellant demurred to the declaration, the main grounds being that there was no implied warranty of the manufacturer that at the time of consumption it would be wholesome and fit for human consumption; and, second, there was no privity of contract shown between the appellant and appellee as to the Coca Cola alleged to have been bought and consumed by appellant.
The demurrer was sustained by the trial court. Plaintiff (appellant here) declining to plead further, final judgment was rendered in favor of defendant (appellee here), from which this appeal was taken.
In the case of Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791, this court held that — "When a manufacturer makes, bottles and sells to the retail trade, to be again sold to the general public, a beverage represented to be refreshing and harmless, he is under a legal duty to see to it that, in the process of bottling, no foreign substance shall be mixed with the beverage, which, if taken into the human stomach, will be injurious."
In the same case it was also held that the bottler owes this duty to the general public, for whom his drinks are intended, as well as to the retailer, to whom he sells.
The doctrine of implied warranty by the manufacturer of a beverage to be free from deleterious substances, and fit for human consumption, was announced in Rainwater v. Coca Cola Bottling Co., 131 Miss. 315, 95 So. 444, and has been followed in Grapico Bottling Co. v. Ennis, 140 Miss. 502, 105 So. 97, 44 A.L.R. 124, and Coca-Cola Bottling Works v. Lyons, 145 Miss. 877, 111 So. 305.
Counsel for appellee concede that unless these cases are overruled the case at bar should be reversed. Able argument is made that the authorities cited in support of the Chapman and Rainwater cases do not support these cases. It may be true that the quotation in the Chapman case, supra, from Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A. (N.S.) 1178, 110 Am. St. Rep. 157, and adopted by this court, was taken out of its setting and not intended by the Georgia court to establish the doctrine of implied warranty for the state of Georgia The doctrine, however, is sound, and our court is so definitely committed to it that we decline to disturb it. It has for its aim the protection of health and human life, and squares with social justice.
We think the trial court was in error in sustaining the demurrer, and the judgment will be reversed and remanded, with leave to plead to the declaration.
Reversed and remanded.