Griggs Canning Co. v. Josey , 139 Tex. 623 ( 1942 )

I most respectfully dissent from the opinion of the majority in this case. The following expresses my views:

The opinion of the majority, speaking through Chief Pustice Alexander, holds that a retailer of food impliedly warrants that all food sold by him is free from contamination and fit for human consumption. Such opinion further holds that the retailer's implied warranty, as above expressed, is universal in its application, in that it applies even to food that is put up by a manufacturer or processor in sealed bottles, cans, or other containers, with the name of such manufacturer or processor fully disclosed on the container.

I agree that it is the general rule that the retailer of food sold for human consumption impliedly warrants that it is wholesome and fit for the purpose for which it is sold; but I think that the great weight of authority is to the effect that the general rule of implied warranty should not be applied in cases where the food sold by a retailer is put up in bottles, cans, or other sealed containers, with the name of the manufacturer or processor fully disclosed thereon. I think, further, that justice and fair play is better served by the application of the exception to the general rule just stated.

The general rule, which holds the retail dealer liable as on an implied warranty for injuries resulting from contaminated food sold by him, is based on the theory that such dealer has an opportunity to observe and inspect the appearance and quality of the food products which he offers for sale, — and, accordingly, he should be charged with knowledge of their imperfections. In cases where food is sold in sealed bottles, cans, or packages, appearing to be in good condition, the dealer has no knowledge of or opportunity to know their original or present condition. In fact, in such instances the consumer, who can see and inspect the food after the container has been opened, has a better opportunity to discover any contamination or imperfection than the retailer has. 22 Amer. Jur., p. 882, sec, 99, and numerous authorities there cited; 26 C.J., p. 783, and authorities there cited. I think the rule, as supported by the great weight of authority, is announced in American Jurisprudence, supra. I quote, as an expression of my views, as follows from that authority:

"Upon the question whether a dealer, in selling food or beverages in bottles, sealed cans, or sealed packages, impliedly warrants that it is wholesome and fit for food, there is some difference of opinion. The applicable provisions of the Uniform Sales Act, adopted in a majority of the states, are deemed by many courts to raise an implied warranty of the fitness of such foods or beverages. In the absence of any statutory provision, however, which may be construed to imply such a warranty, the majority of the courts passing upon the question have taken the position that the general rule implying warranty of wholesomeness or fitness of provisions for human consumption by a retail food dealer in favor of the purchasing consumer is not to be applied where the consumer purchased provisions put up by a manufacturer or packer in sealed can packages or containers from whom the retailer secures his stock. The reason given in support of this view that the rule of implied warranty between retailer and consumer is not to be extended to a sale by a retail grocer of canned goods which he purchased from the canner is that the doctrine of implied warranty proceeds on the presumption that the seller had some special means of knowledge as to the condition of the provisions which he sells. That rule was formulated upon the theory that the dealer had an opportunity to observe and inspect the appearance and quality of the food products which he offered for sale and was accordingly charged with knowledge of their imperfections. In the case of provisions in sealed cans, bottles, or packages appearing to be perfect, the dealer has, however, no knowledge of their original or present condition. Such provisions cannot be chemically analyzed every time they are used. It is said, therefore, to comport better with justice to hold that where a dealer sells to his customer an article in the original package in which it is put up by the manufacturer and the customer knows as much about the article as the dealer and buys it without any representation from the dealer or reliance upon his judgment, knowing that there has been no inspection of it by the dealer, there is no implied warranty, although the dealer knows that the customer buys it for food.

"Under this rule rejecting the theory of implied warranty between the manufacturer or packer of provisions and beverages in sealed cans, bottles, and packages, the situation of the retailer and consumer regarding injuries from using such products is governed by the rules of law of negligence. Under this theory of liability, the duty the retailer owes to the consumer is to supply goods packed by reliable manufacturers, and such as are without imperfections that may be discovered by an exercise of the care, skill, and experience of dealers in such products generally; and, if he discharges this duty, he will not be mulcted in damages because injuries may be produced by unwholesomeness of the goods. As to hidden imperfections, the consumer must be deemed to have relied on the care of the packer or manufacturer or the warranty which is held to be implied by the latter. However, some courts have pointed out that this does not mean that retail dealers, as a matter of law, are not liable for imperfections in provisions sold in sealed packages, packed by reputable manufacturers, regardless of whether the defects could have been discovered by the use of reasonable care on the part of the dealer. If the circumstances are such that the dealer knew of, or can be said to be negligent for failing to discover, patent imperfections which could have been detected without opening the package, he is liable. However, even under the modern common law a minority of the jurisdictions follow the rule under the statute and hold the dealer liable for injuries resulting from defective food sold in cans on the basis of implied warranty, refusing to draw a distinction between food and other provisions or between food in cans and that open for inspection. It has been held, without adhering to either of the above rules, that where the can containing the unwholesome food was so labeled as to conceal from the buyer the identity of the manufacturer, this conduct in legal effect put the retailer in the place of the manufacturer and rendered him liable upon an implied warranty to one who purchased the can and was injured by the eating of the contents."

The opinion of the majority grounds its holding that the retailer of food put up in sealed containers, with the name of the manufacturer or processor indicated thereon, occupies the position of an implied warrantor to the consumer, on the theory that public policy demands the application of such rule in order to conserve or protect the public health. The term "public policy" is a vague and indefinite one, and to my mind one not susceptible of an exact or precise definition. I think, however, it is a sound principle to say that a rule of law, not statutory, will not be grounded or based on public policy when the enforcement thereof will not accomplish any public good, and its nonenforcement will not result in any public injury. 50 C.J., p. 857, sec. 62. As applied to the sale of food put up in sealed containers, with the name of the manufacturer or processor indicated thereon, no practical benefit to the public health can be obtained by holding the retailer liable as an implied warrantor. There is no escape from this conclusion, because the manufacture or processing of such food is beyond the control of the retailer; and therefore mulcting him in damages can accomplish no benefit, to the public health. It is beside the point to say that the rule of implied warranty will conserve the public health, by making the retailer more careful in selecting the food he offers for sale; because if the retailer is negligent in that regard, he may be held as in a negligence action; and, besides, the opinion of the majority holds the retailer, regardless of what care he may exert in selecting his goods. In fact, such opinion holds the retailer even if the purchaser actually demands or selects the particular brand he wishes to purchase.

The opinion of the majority holds that the rule of implied warranty should be applied to the retailer in cases like the one under discussion, because in many instances the manufacturer or processor is far removed from the residence of the consumer and therefore difficult to sue. This can be nothing more than a rule of convenience, and, to my mind, no rule of convenience can ever justify mulcting one in damages who has done no wrong. No authority is cited in the opinion of the majority for such a rule, and I am convinced that none can be cited.

Finally, I wish to say that the Uniform Sales Act has never been enacted in this State; and I express no opinion as to its effect on the question here involved.

Opinion delivered July 22, 1942.