Webb v. Tobacco Co. , 121 W. Va. 115 ( 1939 )

The question here involved is a matter of first impression in West Virginia, and a review of the authorities discloses that there are two leading theories forming the basis of liability of a packer or manufacturer of what is to be classified as foodstuff. Part of the difficulty arises from the fact that there is no direct contractual relationship between the manufacturer or packer and the ultimate consumer of foodstuffs purchased in the original package from a retailer. We are not dealing with foodstuffs the original package of which is opened by the distributor or middleman.

A number of the decided cases rest the liability upon negligence, compensation for the result of which is recoverable in a tort action. I am impressed that this theory, coupled with the extent to which mass production has comparatively recently expanded, bases both the plaintiff's case and the defendant's proof upon what may be termed an inference or a presumption. As to direct proof of negligence on the part of the packer in the preparation of the specific article which caused injury to the plaintiff, it would seem obvious that, in other than exceptional instances, there is no means by which plaintiff could obtain that proof. Likewise, it would seem practically impossible for the packer to produce proof that the degree of care required had been exercised as to the specific article from which plaintiff received his injury. Of course, the packer could show his customary and habitual method which might or might not, in the mind of a jury, meet the burden of proof arising by the application of the rule res ipsaloquitur under the plaintiff's showing. It strikes me that with negligence the basis of recovery, both the charge and the defense, although theoretically either might rest upon a specific showing concerning the definite article causing the injury, as a matter of fact would rest upon the legal fiction termed a shifting presumption. The law creates the presumption, the upshot of which is the rule res ipsa loquitur, and the jury would be privileged to draw the inference that the packer's general showing of care was sufficient to cover the specific article causing plaintiff's injury. Yet the showing of general care would have little weight if the jury gave credence to the plaintiff's testimony as to the deleterious content of the specific package.

Applying the negligence rule seems to rest the verdict almost entirely upon whether the jury accords credence to plaintiff's testimony or does not. Should it do so, it is not consistent that the verdict should be for the defendant, but should it fail to do so, obviously, the finding could not be for the plaintiff.

As opposed to the application of the negligence theory there are a number of what I consider well-reasoned cases favoring the theory that the packer or manufacturer impliedly warrants to the consumer the wholesomeness of, and absence of harmful substances from, the article prepared by him. This rests upon the theory that the ultimate consumer enters into an implied contract with the packer induced by his assurances that the article he has for sale is fit for human consumption. This dispenses with the application of the rule of res ipsaloquitur, and rests the respective duties and obligations where the application of presumptions under the negligence theory rests them. Stating it differently, in either case, if the jury gives credence to the testimony produced by the plaintiff, a verdict for the plaintiff is inevitable. The consequences are equivalent, but to my mind, the negligence rule encounters the unnecessary application of legal fiction, which is to be avoided where the ends of justice may be arrived at without it.

Of course, it is unnecessary to comment upon the necessity for requiring a very high degree of care in the mass production and distribution of foodstuffs. It is unfortunate that there is no statutory law in West Virginia fixing the legal responsibility and reconciling, if possible, the divergent interests involved. Many of the manufacturers and packers, whose products are consumed in this state, are non-residents, and the care they exercise in their plants is susceptible of very little inquiry by the citizens of this state. At the same time, it must be realized that the circumstances surrounding food consumption, in most instances, can be shown only by the consumer. Between these points of view, I am impressed that what may be called a sound public policy which will work out best for the general welfare and at the same time will not inflict additional hardships upon the packer or manufacturer is to hold that he is an implied warrantor of the wholesomeness of the articles he prepares for the purpose of distribution to the ultimate consumer and his household through middlemen or distributors.

Under the rule definitely established in this state, a recovery may be had for breach of an implied warranty accompanying the sale of a chattel in either trespass on the case or assumpsit. Schaffner v. National Supply Co., 80 W. Va. 111, pt. 1 Syl., 92 S.E. 580. See also Cooley's Blackstone (4th Ed.), 976, et seq., and Shippen v. Bowen, 122 U.S. 575,7 S. Ct. 1283, 30 L. Ed. 1172, which clarify the basic reason for the rule. Examine also, Code, 56-4-24, which, among other provisions, vests plaintiff with the right, by amendment, to alter the form, though not the cause, of action.

Whether the implied warranty could be held to extend to the plaintiff or would be confined to the purchaser could well rest upon whether the action were in contract or in tort. The Court's holding makes it unnecessary to determine the question of whether a right to recover based upon contract would entitle plaintiff to sue or whether the absence of privity would preclude such an action.

I cannot follow the accuracy of the statement in the Court's opinion that the jury had the right to believe that thesystem used by the manufacturer was not sufficient to prevent the presence of a foreign substance in the article involved. That is exactly what I do not think the jury had a right to find. The entirety of the proof relating to the system used by the packer was adduced by defendant's witnesses, and was sufficient to establish an extremely high degree of care. As might be expected, there was no direct contradiction, defendant's plant being located outside of West Virginia and for all practical purposes no information being available to the plaintiff. Yet the article that caused plaintiff's injury, if plaintiff's testimony is given credence, passed through a plant run under the exacting system testified to and emerged with a deleterious substance causing plaintiff's trouble contained in it. It is conceivable, but not likely, that both versions are substantially accurate. I do not believe proof not relating to the specified article which caused plaintiff's injury, but simply establishing a system under which a high degree of care was exercised should defeat recovery when, in spite of such a method having been habitually used, an injury due to the unwholesomeness of a foodstuff, or its equivalent, results. It seems that the effect of the court's opinion, based upon what it is said the jury could regard as an insufficient system, inferentially would require the jury to disregard the defendant's proof in order that a recovery be justified. On the other hand, in order to justify a verdict for the defendant, the plaintiff's proof would have to be disregarded. I think that approximately the same result can be reached by a rule which bases a recovery simply upon the credence to be given the plaintiff's proof by applying the doctrine of implied warranty. In both instances, recovery rests upon the identical jury determination, i. e., crediting plaintiff's proof. The main difference is that under the negligence doctrine, a much more complicated legal problem is confronted than under the implied warranty doctrine. The latter, in most instances, would rest entirely upon whether the jury felt itself justified in treating the plaintiff's proof as worthy of credence; that is exactly where the negligence theory rests.

It is hardly useful to cite the decided cases, but the following annotations will be found of great assistance to those wishing to review this highly interesting question. 4 A.L.R. 1559; 17 A.L.R. 672; 39 A.L.R. 992; 47 A.L.R. 148; 63 A.L.R. 340; 105 A.L.R. 1039, 1502; 111 A.L.R. 1239.

Judge Hatcher is in accord with this memorandum.