Opinion
No. 34216.
September 23, 1940.
FOOD.
A person, who became ill when he ate fruit from a can which contained decomposed and decayed animal matter, could not maintain an action against wholesale distributor of canned goods where label on can showed that it was put out by wholesaler not as its own product but as a product prepared for and put out by a different corporation which was not joined in the action.
APPEAL from the circuit court of Yalobusha county; HON. JOHN M. KUYKENDALL, Judge.
Stone Stone, of Coffeeville, for appellant.
We have one case to cite and it does appear to us that this settles this lawsuit in favor of the complainant, the appellant. That case is the case of Swift Company v. Hawkins, decided September, 1935, 174 Miss. 253, 164 So. 231. If this case does not decide the case at bar and does not call for a reversal then we will give it up. We do not claim that the Grenada Grocery Company packed this goods but when they adopted the trade name of "Volunteer" and pushed this stuff all over the country they are just as liable as the people that did put out the stuff. There is no need of quoting the case; there is less than two pages in the writing of the opinion and it fits this case like a glove. Where the other people had adopted the trade name "Brookfield" the Grenada Grocery Company had adopted and was putting out and distributing the "Volunteer" products and they fall under the rule quoted by Judge Griffith, "One who puts out as his own a chattel manufactured by another is subject to the same liability as though he were its manufacturer."
I do not think that there is the slightest room for argument that our case was not proved, and we must remember that when a motion to exclude is sustained it must be taken as a case where everything proved by the plaintiff is true and also everything that the testimony reasonably tends to prove is true.
Cowles Horton, of Grenada, for appellee.
Appellee rests his suit in this case upon the claim that he is entitled to recover under the rule applied in Swift Company v. Hawkins, 174 Miss. 253. Upon the question whether that case applies four parties must be kept in mind. They are (1) the plaintiff who sues, (2) S.R. Geeslin, a merchant of Scobey, Mississippi, who owns and operates his own store and who sold the pineapple to the plaintiff, (3) Grenada Grocery Company, a Mississippi corporation domiciled at Grenada, Miss., which had no other connection with this case than to sell the pineapple as a wholesaler to the retail merchants, and (4) Volunteer Stores, Incorporated of America, Chicago, Illinois, an Illinois corporation doing business in all of the states.
In the Hawkins case, Swift Company occupied the exact position occupied here by the Illinois corporation — not the one occupied by the appellee. In that case the cheese was "put out" by Swift "as its own" product. In the case here this pineapple was "put out" by the Chicago company "as its own" product. Neither the Illinois company nor the appellee nor anyone else ever "put out" this pineapple as the product of Grenada Grocery Company. Neither on the label nor on anything else shown by this record is there anything upon which the learned court below could have held appellee, the wholesaler, as the implied warrantor of this article. In holding, therefore, that appellant had sued the wrong party the learned court below was merely adopting the rule laid down in the Hawkins case — an old, well settled principle of the law under which a party is always bound in the sale of any sort of article where the party "puts it out upon the market" as "its own" product. Otherwise the manufacturer even could never be successfully sued unless plaintiff could show actual manufacture by the one against whom the suit is based.
In the case at bar this pineapple was neither put up by or for the appellee. It did not bear its label nor anything else upon which a purchaser might draw any conclusion insofar as Grenada Grocery Company is concerned. It was sold by the appellee to Mr. Geeslin just as other things were done in the regular course of appellee's wholesale business. There is nothing in the record whatever upon which any similarity of the position of Swift Company in the Hawkins case and appellee in the case at bar may be drawn. On the other hand, the rule applied in the Hawkins case squarely excludes this wholesale merchant from the operation of that case. In so holding the learned court below was merely following the well settled rule in this state in regard to implied warranty of food for human consumption.
Argued orally by W.I. Stone, for appellant, and by Cowles Horton, for appellee.
Appellant, the plaintiff, brought an action against appellee, the defendant, for damages for an illness alleged to have been caused by decomposed and decayed animal matter in a can of sliced pineapple, which appellant had purchased from a local retail merchant and of the contents of which can, appellant had partaken before the discovery of the foreign substance. The retail merchant had purchased the can, along with others, from appellee, a domestic corporation, engaged as a wholesale distributor of many lines of groceries.
The can was labelled "Volunteer Sliced Pine Apple. Packed for Volunteer Stores Incorporated of America, Chicago, Illinois." The label also had on it a circular design containing within the circle the letter "V" and around this letter there is printed "Volunteer Food Stores." The name of no other person or company appeared on the can, and so far as the record discloses there was no wrapper or other representative matter beyond that already quoted.
It is sufficiently shown by the evidence that appellee grocery company is the exclusive wholesale distributor of Volunteer food products in the territory where the retail purchase was made in this case; that it advertises itself extensively as the distributor of Volunteer products, and will not sell any of the Volunteer foods except to stores which likewise advertise themselves as Volunteer stores. It is admitted that appellee company did not prepare or pack the pineapples; but the argument of appellant is that, by the course of dealing and of advertising aforementioned, appellee had put out these sealed cans as if its own product and would thereby come within the holding of this court in Swift Co. v. Hawkins, 174 Miss. 253, 164 So. 231.
The quoted label shows and plainly discloses that the canned pineapples were put out by appellee not as its own product, but as a product prepared for and put out by The Volunteer Stores Incorporated of America, a different corporation. The corporation last named was not sued here, and therein a sufficient distinction between the case now before us and the case of Swift Co. v. Hawkins, supra, will at once appear. Compare Kroger Gro. Co. v. Lewelling, 165 Miss. 71, 145 So. 726. We are of the opinion that the trial court was correct in granting the peremptory instruction in behalf of appellee grocery company.
Affirmed.