Thomason v. Ballard & Ballard Co. , 208 N.C. 1 ( 1935 )

CoNNOR, J.

Tbe only question presented by this appeal is whether there was error in tbe refusal of tbe trial court to allow defendant’s motion, at tbe close of all tbe evidence, for judgment as of nonsuit.

During tbe progress of tbe trial tbe plaintiff took a voluntary nonsuit on bis first cause of action. He thereby abandoned bis contention tbat tbe defendant was negligent with respect to tbe manufacture or packing of tbe flour which be bad purchased from tbe City Grocery Company. His contention thereafter was tbat tbe defendant was liable to him, as tbe consumer of the flour, on an implied warranty tbat tbe flour was wholesome and fit for consumption as a food, at tbe time tbe defendant sold and delivered tbe flour to tbe City Grocery Company. This was, in effect, an admission by tbe plaintiff, at least for tbe purposes of tbe trial of this action, tbat tbe presence of tbe rat in tbe sack of flour was not tbe result of any failure on tbe part of tbe defendant to exercise due care in tbe manufacture or packing of tbe flour from which tbe bread which be ate was made.

There are decisions in this jurisdiction to the effect that as between a vendor and his vendee there is an implied warranty that the personal property sold by the vendor and purchased by his vendee was fit for the use for which it was sold and purchased, and that the vendor is liable to his vendee for a breach of this warranty. Swift v. Aydlett, 192 N. C., 330, 135 S. E., 141; Poovey v. Sugar Co., 191 N. C., 122, 133 S. E., 12; Swift v. Etheridge, 190 N. C., 162, 129 S. E., 453.

There are no decisions, however, in this jurisdiction to the effect that there is any implied warranty as between a manufacturer and an ultimate consumer of a food product, which was purchased by the consumer from a retail merchant to whom the manufacturer had sold the food, for resale. It is true that in Ward v. Sea Food Co., 171 N. C., 33, 87 S. E., 958, it is said that the authorities are numerous, that there is an implied warranty that runs with the sale of food for human consumption, that it is fit for food and is not dangerous and deleterious. In that case, however, the defendant was held liable to the plaintiff upon the finding by the jury that the death of plaintiff's intestate was brought about by the negligence of the defendant with respect to food which the defendant had sold to the retail merchant from whom plaintiff’s intestate had bought the food.

In Corum v. Tobacco Co., 205 N. C., 213, 171 S. E., 78, it is said:

“There are many decisions to the effect that one who prepares in bottles or packages foods, medicines, drugs, or beverages and puts them on the market is charged with the duty of exercising due care in the preparation'of these commodities, and under certain circumstances may be liable in damages to the ultimate consumer. Broadway v. Grimes, 204 N. C., 623, 169 S. E., 194; Broom v. Bottling Co., 200 N. C., 55, 156 S. E., 152; Harper v. Bullock, 198 N. C., 448, 152 S. E., 405; Grant v. Bottling Co., 176 N. C., 256, 97 S. E., 27; Cashwell v. Bottling Works, 174 N. C., 324, 93 S. E., 901.”

In the absence of allegation and proof of negligence on his part with respect to the manufacture or preparation of a food product, the manufacturer is not liable as upon an implied warranty to an ultimate consumer for damages resulting from injuries caused by the condition of the food, which the consumer has purchased from a retail merchant to whom the manufacturer sold the food for resale. There is no contractual relation between the manufacturer and the consumer to which an implied warranty with respect to the food can attach. The manufacturer owes the duty of exercising a high degree of care in the manufacture and preparation of food for human consumption, and for a breach of this duty he may and should be held liable to the consumer. The law does not, however, make him an insurer of his products, or hold him liable solely upon an implied warranty to one with whom he had no contractual relation.

There was error in the refusal of the trial court to allow defendant’s motion for judgment as of nonsuit.

The judgment is

Reversed.