"(2) The right of action as set forth in subsection (1) above shall extend to and include actions ex contractu and ex delicto. It was adopted subsequent to the decision of this court in Whiteley v. Webb's City, Inc., 55 So.2d 730 (Fla. 1951), presumably to encompass a death action based on a cause of action for breach of implied warranty without fault recognized by this court in a limited area. See Sencer v. Carl's Market, Inc., 45 So.2d 671 (Fla. 1950); Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla. 1965), and cases cited therein.
Courts in other jurisdictions have determined that a breach of warranty action cannot form a basis for derivative recovery under a wrongful death statute. See Whiteley v. Webb's City, 55 So.2d 730 (Fla. 1951); Sugai v. General Motors Corp., 130 F. Supp. 101 (D.Idaho, S.D. 1955). In Whiteley, the supreme court of Florida dismissed a wrongful death action brought by the personal representative of a deceased person on grounds that the
The court, by this decision, ruled that the retailer impliedly warrants the product he sells even though it is sealed and he has no opportunity to examine it. Subsequently, the court decided the case of Whitely v. Webb's City, Fla. 1951, 55 So.2d 730, where it was held that the personal representative of a deceased person may not bring an action for breach of warranty under the wrongful death statute. The court then went on to say:
Defendants argue that an action based upon warranty is a contract action and not a "wrongful act or omission" as required by the act. They cite the following cases as authority for this proposition: Latimer v. Sears Roebuck and Company, 5 Cir., 285 F.2d 152, 86 A.L.R.2d 307 (1960); Sterling Aluminum Products v. Shell Oil Co., 8 Cir., 140 F.2d 801 (1944), cert. denied, 322 U.S. 761, 64 S.Ct. 1279, 88 L.Ed. 1588; Whiteley v. Webb's City, 55 So.2d 730 (Fla. 1951) and Hasson Grocery Co. v. Cook, 196 Miss. 452, 17 So.2d 791 (1944). To our knowledge, no Indiana appellate court has decided this issue.
The appellant contends that the purpose of this amendment was to allow just such a suit as he brought in this case. This contention in large part rests on an assumed legislative intention to overrule Whiteley v. Webb's City, Inc., Fla. 1951, 55 So.2d 730, 731. In Whiteley a divided court held that the personal representative of the deceased could not recover damages from a breach of an implied warranty of fitness.
The action for breach of implied warranty has been characterized by the Florida courts as ex contractu rather than ex delicto. This is made clear by Whitley v. Webb's City, Inc., 55 So.2d 730 (Fla. 1951). There, a wrongful death action for breach of implied warranty on a drug was not allowed to be maintained.
(P. 1583.) Among cases cited by the authors to sustain this statement were S.H. Kress Co. v. Lindsey, 5 Cir., 1919, 262 F. 331, 13 A.L.R. 1170; Sterling Aluminum Products, Inc. v. Shell Oil Co., 8 Cir., 1944, 140 F.2d 801; Whiteley v. Webb's City, Fla. 1951, 55 So.2d 730; Howson v. Foster Beef Co., 1935, 87 N.H. 200, 177 A. 656; Burkhardt v. Armour Co., 1932, 115 Conn. 249, 161 A. 385, 90 A.L.R. 1260. Both Florida and Connecticut, since the above decisions, have amended their statutes.
In Florida, a wrongful-death action based on breach of implied warranty of fitness for consumption was brought when a death was caused by a drug sold as a salt substitute. The court, in Whiteley v. Webb's City (Fla. 1951), 55 So.2d 730, held that a statute which permits a wrongful-death action based on a "wrongful act, negligence, carelessness or default" contemplates actions ex delicto, and not ex contractu. A vigorous dissent, however, urged that the statute should be construed to allow recovery on the basis that a breach of implied warranty is a wrongful act or a default.
We are asked to do this despite the absence of any basis for implying a warranty. The transaction here is not one out of which a warranty, even under most modern standards, would be implied. Whiteley v. Webb's City, Fla., 55 So.2d 730. Retail druggists in situations typified by the instant record are even excepted from the American Law Institute's strict liability rule which we have mentioned.
The Court of Civil Appeals in adopting this theory and in holding that Bloom should be held guilty, says that such a public policy is quite consistent with that declared by our Supreme Court in Griggs Canning Co. v. Josey, 139 Tex. 623, 164 S.W.2d 835, 840, 142 A.L.R. 1424. This case held 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 find no case in this or any other jurisdiction which applies this rule to a factual situation where, as here, all of the evidence establishes a complete unawareness of any wrongdoing. See Whiteley v. Webb's City, 55 So.2d 730 (Fla., 1951); Watkins v. Jacobs Pharmacy Co., 48 Ga. App. 38, 171 S.E. 830 (1933); People's Service Drug Stores v. Somerville, 161 Md. 662, 158 A. 12, 80 A.L.R. 449 (1932). In the case of Garner v. Texas State Board of Pharmacy, (1957) Tex.Civ.App., 340 S.W.2d 530 (err. ref.), which the Court of Civil Appeals distinguishes, the Board revoked the license of a pharmacist under the authority of Article 4542a, Sec. 12(f), V.A.T.C.S., which says that the Board may revoke such licenses when the holder thereof "directly or indirectly, aids or abets in the practice of pharmacy any person not duly licensed to practice under this Act."