Whitethorn v. Nash-Finch Co. ( 1940 )

I agree to the reversal of the order entered by the Circuit Court overruling the demurrer. My reasons are based on the absence of allegations to the effect that respondent relied upon it as to skill or judgment. The pleadings are not sufficient to charge the appellant with implied warranty, and we must therefore assume that there is no liability of the appellant. There is no language in the complaint showing any contractual relationship between the respondent and appellant. Appellant therefore must be regarded as a mere stranger as there is not privity of contract between respondent and appellant. Gearing v. Berkson,223 Mass. 257, 111 N.E. 785, L.R.A. 1916D, 1006; Nelson v. Armour Packing Co., 76 Ark. 352, 90 S.W. 288, 6 Ann. Cas. 237.

See Theresa Pelletier v. Philip Dupont, 124 Me. 269,128 A. 186, 39 A.L.R. 972, as to implied warranties relating to manufacturer of food products running to the consumers who purchase from the middleman. SDC 54.0115 on implied warranties seems pertinent, and see Thomason v. Ballard Ballard Co.,208 N.C. 1, 179 S.E. 30, 32; Karger v. Armour Co., D.C.,17 F. Supp. 484; Cf. Minutilla v. Providence Ice Cream Company,50 R.I. 43, 144 A. 884, 63 A.L.R. 334; Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667.

The complaint does not state a cause of action based on negligence in the absence of an allegation or its equivalent, that the supposed negligent acts on the part of the appellant were the proximate cause of the injury to the respondent which by the weight of authority seems necessary to constitute good pleading. Sophie Ketterer v. Armour Company, 2 Cir., 247 F. 921, L.R.A. 1918D, 798; 21 R.C.L. 499, § 64; Secs. 2037 and 2038, pp. 3534-3537, 4 Bancroft's Code Pleading; 2 Bancroft's Code Pleading Practice and Remedies, 965, § 2044; and Linney v. Chicago, M., St. P. P.R.R. Co., 94 Mont. 229, 21 P.2d 1101.

In the case at bar it seems that it would place an undue hardship upon the packer to examine the candy for poisonous substances as it occupies a position between the manufacturer of the candy and is purely an intermediary. Clearly she ought to plead some grounds of neglect of duty or negligence in permitting the poisonous substance to contaminate the candy. This, in my opinion, she has not done. "It should appear in what respects the defendant was negligent, and that such negligence had causal connection with plaintiff's injury." Simons et al. v. Pacific Gas Electric Co., 64 Cal.App. 74, 220 P. 425, 426.

For the foregoing, it is my opinion that the complaint should be held defective and that the order overruling the demurrer should be reversed.