Dragone, Roy

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Maryland Law ReviewVolume 18 | Issue 2 Article 9Breach of Implied Warranty of Wholesomeness ofFood by Retailer - Great Atlantic & Pacific TeaCompany v. AdamsRoy DragoneFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Torts CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationRoy Dragone, Breach of Implied Warranty of Wholesomeness of Food by Retailer - Great Atlantic & Pacific Tea Company v. Adams, 18 Md.L. Rev. 156 (1958)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol18/iss2/9MARYLAND LAW REVIEW [VOL. XVIIIBreach Of Implied Warranty Of WholesomenessOf Food By RetailerGreat Atlantic & Pacific Tea Company v. Adams'Mrs. Adams purchased two heads of lettuce which sheserved in a salad two days later. All who ate the saladbecame violently ill. Her husband, one of those injured,brought this action against defendant food market forbreach of implied warranty that the lettuce purchased wasfit for human consumption when in fact it was allegedlycontaminated with bacteria. At the trial, expert testimonywas introduced indicating that the organism (shigellasonnei) causing the illness was found in the salad but thatraw lettuce was neither its natural habitat nor a favorablemedium for its existence. The organism in question isusually found in human fecal matter and may be trans-ferred to food by handling with contaminated fingers.The lower court entered judgment for the plaintiff cus-tomer on the jury's verdict after overruling the grocer'smotion for judgment n.o.v. On appeal, the case was re-versed on the ground that the customer was not entitled torecover where he had not met the burden of proving thealleged breach. The customer failed to establish that thelettuce sold did not, at the time of the sale, conform to therepresentations of an implied warranty, and in fact in-troduced evidence which made it clear that contaminationmay have occurred after it left the store.The importance of wholesomeness in food sold for im-mediate consumption was first recognized in an ancientEnglish criminal statute2 but later cases relied on an actionon the case for deceit." Toward the latter part of the eigh-teenth century, the contractual relation between the'buyerand the seller was recognized, bringing about the actionof breach of warranty in assumpsit.4 In 1893, the existinglaw was codified in the English Sale of Goods Act' whichlater served as a model for the Uniform Sales Act draftedin 1906 and adopted by Maryland in 1910.6This common law principle of implied warranty ofwholesomeness is apparently unaffected by the UniformSales Act provision requiring the buyer either expressly1213 Md. 521, 132 A. 2d 484 (1957).2 Statute of Pillory & Tumbrel and of the Assize of Bread and Ale, 51Hm. 3, Stat. 6, 1 STAT. at Large 47 (1266).8 3 BLAcxSTowim, CoMMNTAwtms, (Lewis ed. 1902) §166.' Stuart v. Wilkins, 1 Doug. 18, 99 Eng. Rep. 15 (1778).556 & 57 Vicxom, Ch. 71 (1893).'MD. CODm (1951), Art. 83, §§19-9&ATLANTIC & PACIFIC v. ADAMSor by implication, to acquaint the seller with the purposeof the purchase.7 It is generally acknowledged by thecourts that when an article of food is purchased from a re-tailer, the implication is that it is for human consumption.8Selection of individual articles by the buyer with refer-ence to size, weight, etc., as was done in the instant case,does not affect the question inasmuch as the buyer relieson the dealer to provide only wholesome food from whichto choose.9 Where, however, the buyer asks for and re-ceives a particular brand (normally in a sealed package orcontainer), no implied warranty of fitness arises under theSales Act.10 At the same time, a sale by description carriesan implied warranty that the goods are of merchantablequality" and this implied warranty has been applied tosales of food in sealed containers. 12 It would seem, then,that one or the other of these statutory warranties will beavailable to the customer on any food purchased. 3 Un-doubtedly, these specific statutory provisions together withthe difficulty of proving the merchant's negligence, explainthe development of breach of warranty as a commonremedy in these cases.14Although the cause of action in contract is more easilyestablished than one in tort the purchaser is not relievedof the burden of establishing the seller's liability. TheCourt, in the instant case, stated:1Ibtd, §33(1) :"Where the buyer, expressly or by implication, makes known to theseller the particular purpose for which the goods are required. and itappears that the buyer relies on the seller's skill or judgment (whetherhe be the grower or manufacturer or not), there is an implied warrantythat the gods shall be reasonably fit for such purpose."'Vaccarino v. Cozzubo, 181 Md. 614, 31 A. 2d 316 (1943), noted 8 Md. L.Rev. 61 (1943).'VOLD, SALES (1931) 464-5.'0MD. CODE (1951), Art. 83, §33(4)"In the case of a contract to sell or a sale of a specified article underits patent or other trade name, there is no implied warranty as to itsfitness for any particular purpose.""Ibid, §33(2):"Where the goods are bought by description from a seller who dealsin goods of that description (whether he be the grower or manufactureror not), there is an implied warranty that the goods shall be of mer-chantable quality.""Ryan v. Progressive Grocery Stores, 255 N. Y. 388, 175 N. E. 105, 74A. L. R. 339 (1931), holding a grocer liable for injury by a pin in a loaf ofbread of another's manufacture, in a sealed wrapper, where customer askedfor that particular brand.Ryan v. Progressive Grocery Stores, ibid; Burkhardt v. Armour & Co.,115 Conn. 249, 161 A. 385, 90 A. L. R. 1260 (1932) (where the containerwas sealed but the customer did not ask for a particular brand).1Warranties of Kind and Quality Under the Un4form Retied Sales Act,57 Yale L. J. 1389 (1948).19581MARYLAND LAW REVIEW [VOL. XVIII"The same principles as to proof apply whether theplaintiff is attempting to prove negligence or to provethe breach of an implied warranty. If the plaintiff'sown evidence shows two equally possible causes, forone of which the defendant would not be responsible,he cannot recover."15In an action for breach of either an express or impliedwarranty, the burden of proof is on the plaintiff to estab-lish that the article sold did not, at the time of sale, con-form to the representations of the warranty. 6In food poisoning cases, it has been suggested,' 7 thatto determine the principles involved, they be divided intotwo groups, namely, the trichinosis cases and the sealedcontainer cases, but a more accurate analysis should alsoinclude a third classification covering bulk or loose items.One author who feels that this distinction is often difficultto make would avoid it by holding the dealer liable inany case.'Trichinosis cases. In the trichinosis cases there is littlequestion that the trichinae nematodes which cause the dis-ease are present in the pork at the time of sale, since theseorganisms originate in the live animal."9 In Maryland, how-ever, as in most jurisdictions,2 ° the extent of an impliedwarranty of wholesomeness has been considerably limited.In Vaccarino v. Cozzubo,2' the Court stated:"However, no implied warranty arises either atcommon law or under the statute that meat, generallyfit to be eaten only when properly cooked, is whole-some when eaten raw or cooked in an unusual or im-proper manner."To recover in trichinosis cases, therefore, it would seemthat although the plaintiff is relieved of the burden of prov-ing the presence of trichinae at the time of sale, he mustestablish that the meat was properly cooked. But if theGreat Atlantic, Etc. Co. v. Adams, 213 Md. 521, 527, 132 A. 2d 484 (1957)."Ibid. See also McCeney v. Duval, 21 Md. 166 (1864); Fenwick v. For-rest, 5 H. & J. 414 (Md. 1822).I Supra, n. 15, 525.1Brown, The Liability of Retail Dealer8 For Defective Food Product8,23 Minn. L. R. 585 (1939).9 Supra, n. 15, 526. Where the Court stated: "Indeed it is a fact so com-monly known as to be judicially noticed."21Ibid; Cheli v. Cudahy Bros. Co., 267 Mich. 690, 255 N. W. 414 (1934);Silverman v. Swift & Co., 141 Conn. 450, 107 A. 2d 277 (1954) ; Feinsteinv. Daniel Reeves, Inc., 14 F. Supp. 167 (D. C. N. Y. 1936).181 Md. 614, 620, 31 A. 2d 316 (1943). See also dictum in Holt v. Mann,294 Mass. 21, 200 N. E. 403 (1926).ATLANTIC & PACIFIC v. ADAMSexpert opinion in the Vaccarino case is accepted, and thereis no reason why it should not be, trichinosis can be pre-vented by cooking pork thoroughly, so it follows almostnecessarily that pork which has caused trichinosis wasimproperly cooked.22 The New York Court of Appeals,refusing to adopt this reasoning which would preclude re-covery in most trichinosis cases, has held that the presenceof trichinae makes pork unwholesome and that a dealerwho sells pork thus infected has breached the implied war-ranty of fitness.28 The fact that a meat packer could notreasonably discover the presence of trichinae in his productis immaterial since the warranty is not based on negli-gence.24 Obviously, in a case where pork products preparedby the manufacturer or dealer to be eaten without cooking,are purchased by a consumer who develops trichinosis, themajority of the courts would join New York in finding abreach of implied warranty of fitness.25Sealed container cases. In the sealed container cases,the presence of a foreign substance or injurious ingredientin a sealed bottle or container raises a strong presumptionthat it was there at the time of sale and that the bottleror packer was negligent. 6 Whether or not the doctrine ofres ipsa loquitur can be invoked against the bottler orpacker"7 is immaterial in a contract action against the re-tailer. In any case, of course, the plaintiff would havethe burden of showing that injury or illness resulted fromthe presence of the foreign substance. From the standpoint0 The virtual impossibility of proving proper cooking is shown in theSilverman case, supra, n. 20, where although the plaintiff had cooked thepork over a spit for four hours, the Court held he had failed to followcommonly used precautions in preparing it.Rinaldi v. Mohican Co., 225 N. Y. 70, 121 N. E. 471 (1918) ; McSpedon v.Kunz, 271 N. Y. 131, 2 N. E. 2d 513 (1936). See also: Catalanello v. CudahyPacking Co., 27 N. Y. S. 2d 637 (1941), aff'd. 264 App. Div. 723, 34 N. Y. S.2d 37 (1942)."4 WrwasToN, CoNTRAcTs (1936), §991.2Vaccarezza v. Sanguinetti, 71 Cal. App. 2d 678, 163 P. 2d 470 (1945),where in holding for a consumer who developed trichinosis from eatingsalami purchased from defendant retailer, the main issue was not the im-plied warranty, but the evidence required to prove defendant's breach.2"Supra, n. 13; Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866 (1922);Armour & Co. v. Leasure, 177 Md. 393, 9 A. 2d 572 (1939) ; CloverlandFarms Dairy v. Ellin, 195 Md. 663, 75 A. 2d 116 (1950).21 In the Armour & Co. case, ibid, 410-411, the Court stated:"There is a conflict also in the authorities as to whether the doctrineof re8 ipaa loquitur applies where the harmful food was taken fromsealed and unbroken packages . . , but there too the conflict is moreoften due to the variance in the facts of different cases than to anyfundamental difference in principle . . 21But in the earlier Goldman case, ibid, the Court had broadened the "con-trol" element of harm producing agency to include control of the agencyat the time of the negligent act which caused the injury.1958]MARYLAND LAW REVIEW [VOL. XVIIIof ease of recovery, there appears to be a decided advantagein a contract action against the retailer on the basis ofhis strict liability independent of negligence over one intort against the bottler or packer. The overwhelming ma-jority s of cases now hold the retailer liable even wherethe goods are sold in sealed containers on the ground thatpackaged foods containing foreign substances are not ofmerchantable quality.29 Inasmuch as the action is in con-tract, the Maryland Court of Appeals has consistently heldthat in the absence of privity of contract, the benefit ofthe implied warranties do not inure to a subpurchaser sIn other words, the implied warranty does not run withthe goods."'In most of the Maryland cases, however, the customerhas shunned the contract action against the retailer andbrought his action against the bottler or packer. Absentthe required privity he has been restricted to tort.8 2 Theexplanation perhaps lies in the traditional efforts of law-yers to turn every breach of contract into tort, probablybecause of the more liberal tort rules as to damages."8Bulk cases. In cases involving bulk or loose foods, thereis less difficulty in holding the retailer under an impliedwarranty of wholesomeness because of his opportunity forinspection. In these cases the contract action would notbe exclusive and under Maryland's liberal rules of pro-cedure,8 the tort count could probably be included.Conclusion. There seems to be no question that a re-tailer grocer is liable for breach of an implied warranty of" For collected cases see Prosser, The Implied Warranty of MerohantableQuaUty, 27 Minn. L. Rev. 117 (1943).2 The justification of such policy was expressed In Ward v. The GreatAtlantic & Pacific Tea Company, 231 Mass. 90, 120 N. E. 225, 226 (1918),which allowed a customer to recover damages directly from retailer forinjury suffered in consequence of the presence of stones in a can of beans."It doubtless still remains true that the dealer is in a better posi-tion to know and ascertain the reliability and responsibility of themanufacturer than Is the retail purchaser. . . . [The law] places re-sponsibility upon the party to the contract best able to protect him-self against original wrong of this kind, and to recoup himself in caseof loss, because he knows or comes in touch with the manufacturer."Bracketed material added.80Flaccomio v. Eysink, 129 Md. 867, 100 A. 510 (1916); Vaccarino v.Cozzubo, supra, n. 21.SGearing v. Berkson, 223 Mass. 257, 111 N. E. 785 (1916), denying re-covery to a woman made ill by food which she purchased as agent for herhusband.Coca-Cola Bottling Wks. v. Catron, 186 Md. 156, 46 A. 2d 303 (1946);Armour & Co. v. Leasure, supra, n. 26; Bottling Co. v. Lowe, 176 Md. 230,4 A. 2d 440 (1939); Bottling Co. Inc. v. Sindell, upra, n. 26; CloverlandFarms Dairy v. Ellin, supra, n. 26.m PaossEz, LAw or Tours (2nd ed. 1955) 483485."Md. Rules of Procedure (1956), Rule 313, authorizing joinder of claims.CLINE v. FOUNTAIN ROCK CO.fitness and merchantability of food, and although it appearsthat such breaches are rather common occurrences, therehave been only three cases to date going to the MarylandCourt of Appeals utilizing this form of action.85 There isno apparent reason why the customer does not take advan-tage of this strict liability (independent of negligence) bybringing a contract action directly against the dealer,whether or not the manufacturer is identified. UnderMaryland's rules of procedure,86 it would seem that theretailer could file a third-party claim against the whole-saler with whom he is in privity, who in turn could impleadthe manufacturer. If recovery by an injured customer isto be restricted, as a matter of practice, to cases predicatedon negligence, particularly where a more adequate remedyis available, the desirable social interest of public healthand safety in matters of food may be seriously impaired.Roy DRAGoNEEffect Of Plea Of Limitation On Amended DeclarationCline v. Fountain Rock Lime and Brick Co., Inc.'This is the second appeal of this case to the Court ofAppeals.2 On January 11, 1952, plaintiff-appellee filed adeclaration in the Circuit Court for Frederick County con-taining the common counts and a special count that alleged:"'During the year 1949 the .. .defendant [Cline] agreedwith the plaintiff [Fountain Rock] to lease the plaintiff'sreal estate, plant and equipment and to pay the plaintiff forthe same a percentage of profit with guaranteed minimumamount...' "" The case was removed to Carroll County andwas tried before a jury which rendered a verdict in favor ofthe plaintiff for $7,000. On the first appeal, the Court of Ap-peals reversed and remanded for a new trial. The Courtrested its decision on the fact that the jury was permittedwGreat Atlantic, Etc. Co. v. Adams, 213 Md. 521, 132 A. 2d 484 (1957) ;Vaccarino v. Cozzubo, 181 Md. 614, 31 A. 2d 316 (1943), noted 8 Md. L. Rev.61 (1943) ; Dining Hall Co. v. Swingler, 173 Md. 490, 197 A. 105 (1938),where plaintiff was injured by a piece of tin in a sandwich served to himin defendant's restaurant. The Court held the serving of food in a restau-rant was not a sale of food and that therefore, breach of implied warrantywas not the appropriate action.N Supra, n. 34, Rule 315 - Third-Party Practice.1214 Md. 251, 134 A. 2d 304 (1957).The first appeal was 210 Md. 78, 122 A. 2d 449 (1956)."Supra, n. 1, 254.19581

Breach of Implied Warranty of Wholesomeness of Food by Retailer - Great Atlantic & Pacific Tea Company v. Adams

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