Judges: Thomas
Filed Date: 1/25/1946
Status: Precedential
Modified Date: 10/19/2024
Reversing.
The defendant, the Great Atlantic and Pacific Tea Company, operates a great number of retail grocery stores throughout the country, including this Commonwealth, one of which is located in Corbin, Kentucky.
On April 1, 1944, the appellant, A.L. Martin, as a customer of appellee's retail store in Corbin, purchased from it a sealed package of "chili con carne" to be consumed as food by himself and family. The package was opened by plaintiff after his arrival at his home, and a part of its contents was consumed by his family, including himself. According to the aver ments of the petition plaintiff and the other consumers of the purchased package became exceedingly nauseated, sustaining some pain, mental anguish and other damaging physical effects. The contents of the package were then emptied and in the bottom of it, as alleged, there was found a part of a leg of a dead rat which poisoned the entire contents and rendered it unwholesome, unfit, dangerous and not suitable for the purpose for which it was bought.
Plaintiff filed this action in the Knox circuit court, the county of his residence, against defendant alleging in more elaborate terms his purchase of the named product, its consumption by him and the members of his family, and the alleged resultant damages to himself personally which he fixed at the sum of $2,500, and for which he prayed judgment against defendant.
Defendant denied in general terms the material averments of the petition, and in other paragraphs it pleaded that it bought the sealed package sold to plaintiff from its manufacturer and wholesaler, Emmart Packing Company, located and operating its packing plant in the city of Louisville, Kentucky; that it bought large quantities of the same article, as so contained in sealed packages, and that if the one sold to plaintiff was contaminated and rendered unfit for human consumption — *Page 431 in the manner and for the cause stated in the petition — it (defendant) possessed no knowledge of such conditions and which could not be discovered by it except by opening the package and examining its contents, but which would destroy its salability to its customers. Before filing its answer defendant filed a general demurrer to plaintiff's petition and without waiving it answer was filed. Plaintiff demurred to the answer — except the paragraph denying in general terms the material allegations of the petition — and without waiving it filed its reply, which was a denial in general terms of the affirmative allegations in the answer. The case was then submitted to the court on the demurrers which each party had filed, and it sustained defendant's demurrer to the petition, with exceptions, and overruled plaintiff's demurrer to the affirmative allegations in the answer with exceptions. It then dismissed plaintiff's petition, to reverse which he prosecutes this appeal.
The entire list of authorities relied on by counsel for defendant, and appellee, in its brief filed in this court is: Peaslee-Gaulbert v. McMath's Adm'r,
The cited text, as well as the class of opinions referred *Page 432
to, were based upon the law as declared before the enactment in 1928 of our Uniform Sales Act, which it is vigorously argued by counsel for appellant prescribed for an implied warranty under certain conditions the pertinent part of which is contained in section
The section of the Uniform Sales Act says in its first subsection that where the buyer either expressly or by implication makes known to the seller the purpose for which the article is required "and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose." Subsection (2) says: "Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality." In subsection (3) it is enacted that. "If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed." Subsection (4) says: "In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose." The other two subsections of the same section need not be referred to, since they are not applicable under the facts of this case.
The Eiseman case, and the case of R. B. Tyler Co. v. Hampton Cracker Co., supra,
In the instant case defendant is clearly liable under subsection (1) of our Uniform Sales Act, supra. It was known to defendant (the seller) the particular purpose for which the package of chili con carne was purchased, which was to be consumed as food. It is likewise indisputably apparent that the buyer relied on the seller's skill and judgment as to the suitability of the article purchased as an article to be consumed as food. When so, and the purchase is in sealed packages, the court in the cases of Bonenberger v. Pittsburgh Mercantile Company,
Such interpretation of the statutes is also approved in annotations appearing in 64 A.L.R. 951; 90 A.L.R. 410, and 135 A.L.R. 1393. See also the case of Griggs Canning Co. v. Norman Josey,
It therefore follows that the court erred in sustaining the demurrer to appellant's petition, and likewise erred in overruling his demurrer to the affirmative paragraphs of defendant's answer, and in finally dismissing plaintiff's petition, because of which the judgment is reversed with directions to set it aside and for proceedings not inconsistent with this opinion.
Naumann v. Wehle Brewing Co. ( 1940 )
Nehi Bottling Company v. Thomas ( 1930 )
Liggett & Myers Tobacco Co. v. Rankin ( 1932 )
R. B. Tyler Co. v. Hampton Cracker Co. ( 1936 )
Gimenez v. Great Atlantic & Pacific Tea Co. ( 1934 )
Great Atlantic & Pacific Tea Co. v. Eiseman ( 1935 )