Prince v. Smith

119 S.E.2d 923 (1961)

254 N.C. 768

Floy Louise PRINCE v. Merriwell T. SMITH and James O. Walden, D/B/A S & W Food Center.

No. 607.

Supreme Court of North Carolina.

May 24, 1961.

Butler, High & Baer, Charles E. Noell, Fayetteville, for plaintiff, appellant.

Quillin, Russ & Worth, Fayetteville, for defendants, appellees.

HIGGINS, Justice.

This differs from other exploding bottle cases which have been reviewed by this Court. Most prior actions were in tort against the bottling company for injury proximately caused by the company's negligence. Styers v. Winston Coca Cola Bottling Co., 239 N.C. 504, 80 S.E.2d 253; *925 Davis v. Coca Cola Bottling Co., 228 N.C. 32, 44 S.E.2d 337; Enloe v. Charlotte Coca Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Lamb v. Boyles, 192 N.C. 542, 135 S.E. 464, 49 A.L.R. 589; Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A.,N.S., 949.

This action is against the retailer who sold to the plaintiff. The action is in contract, based on alleged breach of implied warranty that the Coca Cola was fit for human consumption as a beverage, and safe for handling. Ordinarily, for breach of implied warranty, the seller is liable only to a party to the contract of sale. A cause of action by the injured party otherwise than against the seller must be based on negligence. Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21. Our court recognizes certain exceptions and variations to the general rule. The manufacturer may attach to the product a warranty to the ultimate consumer. Simpson v. American Oil Co., 217 N.C. 542, 8 S.E.2d 813. A manufacturer may be liable under certain circumstances if he sells an article likely to cause injury in its ordinary use because of its inherently dangerous character, if he fails to guard against hidden defects and to give notice of concealed danger. Tyson v. Long Mfg. Co., 249 N.C. 557, 107 S.E.2d 170. In some of the cases liability on the basis of breach of implied warranty and for negligence seem to shade into each other. See the many cases cited in Wyatt v. North Carolina Equipment Co., supra; Lemon v. Buchan Lumber Co., 251 N.C. 675, 111 S.E.2d 868; Tyson v. Long Mfg. Co., supra; N.C.Law Review, Vol. 30, p. 191, et seq., (1951-52).

Because of the danger to life and health, the manufacturer and packer of foods and the bottler of beverages intended for human consumption, by offering them for sale, impliedly warrant the fitness of their products for such use. As pointed out, however, the warranty extends no further than the parties to the contract of sale. Thomason v. Ballard & Ballard Co., 208 N.C. 1, 179 S.E. 30. For breach of the warranty, the injured party may sue his retailer who, in turn, may sue the wholesaler or jobber, and he the manufacturer, packer, or bottler upon whom finally rests the primary responsibility. N.C.Law Review, Vol. 32, 1953-54, p. 351 et seq.

"The deliberate policy of carrying the responsibility back to the manufacturer who is best able to meet it is indicated by a few decisions which have refused to find any warranty from a wholesaler to the consumer. Less comprehensible are the decisions of three courts which have confined the manufacturer's warranty to the food or beverage inside of a container, and have refused to find any warranty that the container itself will not explode in the customer's face." To the above is added a footnote: "The distinction of course makes no sense. One may speculate that these courts were uneasy about the proof that the plaintiff had not damaged the container himself." Prosser on Torts, 2d Ed., Ch. 17, p. 509; Loch v. Confair, 372 Pa. 212, 93 A.2d 451; Haller v. Rudmann, 249 App. Div. 831, 292 N.Y.S. 586; Mahoney v. Shaker Square Beverages, Ohio Com.Pl., 108 N.E.2d 281.

Implied warranty that beverage is fit for human consumption is not applicable to "a bottle or container which may become weakened by the manner and method in which it is handled." Soter v. Griesedieck Western Brewery Co., 200 Okl. 302, 193 P.2d 575, 580, 4 A.L.R.2d 458.

Research has not disclosed any case in which this Court has extended the implied warranty of fitness to a container in which the product comes from the producer. The wisdom of extending implied warranty beyond the present limit recognized by the Court is at least debatable. In this case the bottle had been in the hands of the plaintiff, first in cold weather, transported by automobile four miles to her apartment, then stored in the kitchen for 18 hours, after which it gave way while the plaintiff *926 was removing dust from it by rubbing it with a cloth. The facts leave the legitimate inference the explosion resulted from an increase in the pressure while it was in the plaintiff's possession. She had been familiar with bottled Coca Cola for years. Evidently she knew as much about the risk of breakage as the defendants.

A bottle filled with Coca Cola sells for less than ten cents. If implied warranty against breakage is attached to the sale, how long does it continue after the purchaser has taken complete control? When a customer buys food or beverage there is an implied warranty that it is not dangerous to health. Only the evil effect after use discloses the danger. Then it is too late to take precautionary measures. On the other hand, the danger that a glass bottle filled with Coca Cola under pressure may explode is obvious. The purchaser buys with that knowledge and must deal with it accordingly. We hold that under the facts of this case implied warranty did not attach to the sale.

The judgment of nonsuit is

Affirmed.