26 Implied Warranty

Mazetti v. Armour & Co., Supreme Court of Washington (1913)
(75 Wash. 622)

*623 The complaint alleges that the plaintiffs were operating a profitable restaurant in the city of Seattle, and dealing with the general public as their patrons; that defendant Armour & Co. is engaged in the business of manufacturing and selling to the public generally meats and products to be used as food; that it maintains a place of business in Seattle, Wash., from which it sells and distributes its goods, representing and holding out to the general public that its goods are pure, wholesome, and fit food for human beings; that on June 16, 1912, plaintiffs, in the usual course and conduct of their business, purchased from the Seattle Grocery Company a carton of cooked tongue, prepared and ready to be used for food without further cooking or labor; that such package had been manufactured and prepared by defendant Armour & Co.; that the carton or container bore its name, and that it was purchased to be sold to plaintiffs’ customers; that in making such purchase plaintiffs relied upon the representations of Armour & Co. that said food was pure and wholesome and fit for food; that Armour & Co. were guilty of negligence in manufacturing and preparing the foods purchased, in that in the center of the carton was a foul, filthy, nauseating, and poisonous substance; that in the due course of trade plaintiffs served to one of their patrons a portion of the tongue; that the patron ate of it; that he then and there became sick and nauseated, and did then and there in the presence of other persons publicly expose and denounce the service to him of such foul and poisonous food; that the incident became known to the public generally; that plaintiffs had no knowledge or means of knowing the character of the food served; that its condition could not be discovered until it was served for use—all to the damage of the plaintiffs, etc., for loss of reputation, business, and lost profits during the life of their lease. Defendants demurred to the complaint. The demurrer of Armour & Co. was sustained, and plaintiffs have appealed.

*624 It has been accepted as a general rule that a manufacturer is not liable to any person other than his immediate vendee; that the action is necessarily one upon an implied or express warranty, and that without privity of contract no suit can be maintained; that each purchaser must resort to his immediate vendor. To this rule certain exceptions have been recognized: (1) Where the thing causing the injury is of a noxious or dangerous kind. (2) Where the defendant has been guilty of fraud or deceit in passing off the article. (3) Where the defendant has been negligent in some respect with reference to the sale or construction of a thing not imminently dangerous.

Within one of these exceptions is to be found the reason for holding the manufacturer of patent or proprietary medicines to answer at the suit of the ultimate consumer. Direct actions are allowed in such cases because the manufacturer of medicines is generally shrouded in mystery, and sometimes, if not generally, they contain poisons which may produce injurious results. They are prepared by the manufacturer for sale and distribution to the general public, and one purchasing them has a right to rely upon the implied obligation of the manufacturer that he will not use ingredients which if taken in prescribed doses will bring harmful results. Reference may be had to the following cases which sustain, and in which many other cases are cited which sustain, this exception: Thomas v. Winchester, 6 N. Y. 397; Blood Balm Co. v. Cooper, 83 Ga. 457; Weiser v. Holzman, 33 Wash. 87.

Another exception—the doctrine is comparatively recent—is referable [sic] to the modern method of preparing food for use by the consumer, and the more general and ever-increasing use of prepared food products. The following are among the more recent cases holding that the ultimate consumer may bring his action direct against the manufacturer: *625 [***] The contrary is held in the case of Nelson v. Armour, 76 Ark. 352. This case, though well reasoned along the lines of those causes which hold that the rule of caveat emptor applies, is not in touch with the modern drift of authority. Some of the cases hold that the action is for breach of warranty; others that it is to be sustained upon the ground of negligence. A few courts have attributed the growth of this exception to the general public policy as declared in the pure food laws [c], while others say that the liability for furnishing provisions which endanger human life rests upon the same grounds as the manufacturing of patent or proprietary medicine. [cc].

In the case of Weiser v. Holzman, this court said: ‘The rule does not rest upon any principle of contract, or contractual relation existing between the person delivering the article and the person injured, for there is no contract or contractual relation between them. It rests on the principle that the original act of delivering the article is wrongful, and that everyone is responsible for the natural consequences of his wrongful acts.’ Although the cases differ in their reasoning, all agree that there is a liability in such cases irrespective of any privity of contract in the sense of immediate contract between the *626 parties.

Indeed, we understand that respondent does not claim that the ultimate consumer, the person who ate the unfit food, would be denied a right of recovery under modern authority; but it is strenuously contended that such actions are sustained because the consumer has been injured in health and comfort, that the exception should not be carried to the extent of allowing a retailer of the goods to sue direct and recover for injury to his business and loss of reputation, that in such cases there must still be privity of contract. It seems that the test should not rest in finding the plaintiff’s damage in health or business, but in answering the question whether there has been a damage which may be justly attributed to the negligence or a breach of duty on the part of the one who had power and whose duty it was to prevent the wrong.

Counsel on either side have been zealous in searching the books, but only one case is submitted that goes directly to the right of the retailer or middleman to sue in the first instance—Neiman v. Channellene Oil & Mfg. Co., 112 Minn. 13. The right to recover for loss of trade consequent upon the selling of impure food was sustained; the court saying, ‘A company which advertises itself as a manufacturer and seller of pure articles of food must be deemed to have knowledge of the contents of the articles offered for sale.’ The court held to the doctrine of implied warranty. The suit was brought by the retailer against his immediate vendor, so that we still have to meet the question of whether the retailer who has lost his trade can sue over the head of his immediate vendor, or join him with the manufacturer as in this case. In the light of modern conditions we see no reason why he should not. He has been damaged. He and all others who in the course of trade handled the unwholesome goods purchased them relying upon the name and reputation of the manufacturer. The goods were designed for ultimate consumption by an individual patron, and packed to facilitate *627 and make convenient such resales as might be made pending ultimate consumption.

Every tradesman, whether wholesaler or retailer, is in a sense a consumer, for he buys to resell. In a way he risks his reputation. He stakes it upon either an express warranty, as printed on the package, or an implied warranty that the goods are wholesome and fit for food. He is injured by the fault or a breach of duty of the manufacturer, for his immediate vendor, like himself, has no way to test every sealed package. ‘Remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales.’ The obligation of the manufacturer should not be based alone on privity of contract. It should rest, as was once said, upon ‘the demands of social justice.’ Ketterer v. Armour, supra.

We may judicially recognize that the contents are sealed up, not open to the inspection or test, either of the retailer or of the customer, until they are opened for use, and not then susceptible to practical test, except the test of eating. When the manufacturer puts the goods upon the market in this form for sale and consumption, he, in effect, represents to each purchaser that the contents of the can are suited to the purpose for which it is sold, the same as if an express representation to that effect were imprinted upon a label. Under these circumstances, the fundamental condition upon which the common law doctrine of caveat emptor is based—that the buyer should ‘look out for himself’—is conspicuously absent. Tomlinson v. Armour, supra, 75 N. J. Law, 748.

In Pantaze v. West (Ala. App.) 61 South. 42, the suit was brought against the retailer. In discussing the obligations of the retailer, the court treats him as a consumer within the law, saying: ‘The fact was established without controversy that the defendant was the keeper of a public eating place, engaged in the business of serving food to his customers, the public, and, being thus engaged, and holding himself out as a public purveyor, he was bound to use due care to see that the foodstuffs served at his place of business to his customers were fit for human consumption, and could be partaken of without *628 causing sickness or endangering human life or health because of their unwholesome and deleterious condition, and, for any negligence in this particular in failing to observe this duty which proximately resulted in injury to one of the patrons of the place, the defendant would be responsible.’

Now, under all authority the immediate vendor would be liable upon one theory or another to the consumer. This being so, it should not be held that the vendor could not sue the manufacturer except to recoup against a judgment. He might thus be left without remedy. In denying the right to sue an immediate vendor, Spear, J., in Bigelow v. Maine Central Ry. Co., 110 Me. 105, observed the wonderful discoveries of the past century and the amazing progress in perfecting known devices. He recalls the boast of the common law that it was able to adjust itself to the inevitable vicissitudes and changes that occur in the development of human affairs.

The principles of the common law have adapted themselves so aptly as to render almost imperceptible the radical transitions that have taken place. Of little less importance than the appearance of the great achievements referred to is the establishment and development of the canning industry in this country and in other parts of the world. It may be said that the art of canning, if not invented within the last century, has, at least, assumed the vast proportions which it has now attained within a comparatively few years. It involves a unique and peculiar method of distributing for domestic and foreign use almost every product known to the art of husbandry. The wholesaler, the retailer, and the user of these goods, whether in the capacity of caterer, seller, or host, sustain an entirely different duty, respecting a knowledge of their contents and quality, than prevails with regard to knowing the quality of those food products which are open to the inspection of the seller or victualer. With reference to these it may well be considered, as has been held, that, having an opportunity to investigate and thereby to know the quality of their merchandise, they are charged with a responsibility amounting to a practical guaranty. The early rules of law were formulated upon the theory that *629 the provision dealer and the victualer, having an opportunity to observe and inspect the appearance and quality of the food products they offered to the public, were accordingly charged with knowledge of their imperfections. [cc] But, upon the state of facts in the case at bar, a situation arises that cannot in the practical conduct of the canning business fall within these rules. No knowledge of the original or present contents of a perfect appearing can is possible in the practical use of canned products. They cannot be chemically analyzed every time they are used. Accordingly, the reason for the rule having ceased, a new rule should be applied to the sale and use of canned goods that will more nearly harmonize with what is rational and just.

To the old rule that a manufacturer is not liable to third persons who have no contractual relations with him for negligence in the manufacture of an article should be added another exception, not one arbitrarily worked by the courts, but arising, as did the three to which we have heretofore alluded, from the changing conditions of society. An exception to a rule will be declared by courts when the case is not an isolated instance, but general in its character, and the existing rule does not square with justice. Under such circumstances a court will, if free from the restraint of some statute, declare a rule that will meet the full intendment of the law. No case has been cited that is squarely in point with the instant case; but there is enough in the adjudged cases to warrant us in our conclusion.

The facts stated in the complaint are admitted by demurrer. Plaintiffs have been injured. No other person or firm had an opportunity to check the offensive package after it was sealed and sent on its way. Right and reason demand that any party injured should have a right of recovery against the first offender without resorting to that circumlocution of action against intervening agents (a doubtful right at best, Bigelow v. Maine Central, supra), which is demanded where the product as well as the market *630 is open, and the rule of caveat emptor should in justice apply.

Plaintiffs’ argument is also based on the pure food law. It is contended that the negligence of defendant is presumed if a violation of the pure food law be shown. This is admitted as a general proposition by defendant; but it says that the rule applies only where the statute was intended for the benefit of the party who brings the suit; that the pure food laws are intended for the benefit of the consumer alone. [***] The consumer purchases prepared food products to sustain life and health. The retailer purchases the same products, depending upon established brands to sustain his reputation as a dealer in clean and wholesome food. We would be disposed to hold on this question that, where sealed packages are put out, and it is made to appear that the fault, if any, is that of the manufacturer, the product was intended for the use of all those who handle it in trade as well as those who consume it. Our holding is that, in the absence of an express warranty of quality, a manufacturer of food products under modern conditions impliedly warrants his goods when dispensed in original packages, and that such warranty is available to all who may be damaged by reason of their use in the legitimate channels of trade.

We regard this case, in so far as the dealer is permitted to sue the manufacturer, as one of first impression. We think the complaint states a cause of action. If there is no authority for the remedy, ‘it is high time for such an authority.’ Ketterer v. Armour, supra.

The judgment is reversed, and the cause remanded, with instructions to overrule the demurrer.

Note 1. Exceptions to the Requirement of Privity. The court states that the rule at common law up until that point has been that “a manufacturer is not liable to any person other than his immediate vendee; that the action is necessarily one upon an implied or express warranty, and that without privity of contract no suit can be maintained.” It identifies three existing exceptions: (1) Where the thing causing the injury is of a noxious or dangerous kind. (2) Where the defendant has been guilty of fraud or deceit in passing off the article. (3) Where the defendant has been negligent in some respect with reference to the sale or construction of a thing not imminently dangerous.

The first category often involved cases of mislabeling poisons or mistakes by chemists or others handling substances that had the power to injure or kill (as you saw in Thomas v. Winchester, supra). The second clearly marks off any actors seeking to dupe others and eliminates the privity requirement for bringing actions against them; this is the action for fraud, however, not negligence. The third allows a negligence action in cases in which an actor makes or sells something not imminently dangerous (but inherently dangerous, or likely to become injurious when negligently made). This third category was not widely accepted across the nation (as you will see in MacPherson v. Buick, infra) but it had begun to be tested in various courts and still required a showing of negligence. Mazetti adds a fourth exception, explaining that tort law must evolve in the face of “the changing conditions of society”:

[I]n the absence of an express warranty of quality, a manufacturer of food products under modern conditions impliedly warrants his goods when dispensed in original packages, and that such warranty is available to all who may be damaged by reason of their use in the legitimate channels of trade.

Can you restate the Mazetti rule, above, to identify who may, and who may not use it to recover if injured by a food product? What culpability standard appears to apply?

Note 2. Which of tort law’s purposes seems (or seem) to be driving the court’s reasoning? Where in the opinion do you see language in support of your conclusion?

Note 3. Review of Negligence Per Se’s Requirements and Limits. The majority refers to the pure food laws and, implicitly, to a theory of negligence per se based on a statutory violation. However, the various statutes appear to be limited to the consumer’s benefit, and the negligence per se doctrine, in defendant’s argument, pertains to the party bringing suit. In this case, the party bringing suit was not the consumer but a vendor. Thinking back to negligence per se, can you recall why this would matter? How do you explain the court’s working around this limitation?

Note 4. What does the court mean when it writes: “Every tradesman, whether wholesaler or retailer, is in a sense a consumer, for he buys to resell. In a way he risks his reputation”? Does the court seem to be pointing to a regime of strict liability or negligence? Why might one regime or another be normatively desirable here?

Coca-Cola Bottling Works v. Lyons, Supreme Court of Mississippi, Division B. (1927)
(145 Miss. 876)

The Coca–Cola Bottling Works appeals from a judgment for $2,500 recovered by the appellee, Mrs. Fred Lyons, as damages for personal injuries received by her on account of drinking a portion of a bottle of Coca–Cola which contained a quantity of broken glass.

We shall state only such of the facts as are necessary to an understanding of the decision of the case. The appellee, Mrs. Lyons, in company with her friend, Mrs. Jackson, drove in an automobile, to the Belen Drug Store, at Belen, in front of which they parked, and ordered drinks to be brought to them. The exact testimony on this particular point is that, “We drove up in front of the drug store, and ordered cokes.” A clerk in the drug store brought two bottles of Coca–Cola to the ladies, which they proceeded to drink, and Mrs. Lyons swallowed a quantity of broken glass which was in the bottle of Coca–Cola she drank from. The bottle of Coca–Cola in question in this case had been manufactured, bottled, sealed, and delivered to the drug store to be sold to the public in the retail trade. The bottle was unsealed, or we may say uncapped, by the clerk in the drug store just before he delivered it to Mrs. Lyons. The above–stated testimony in the record is undisputed.

When the two ladies drove up and stopped in front of the drug store, Mrs. Jackson was the one who ordered the drinks, and she also paid for them; but the drinks were ordered for both of the ladies, and a bottle was delivered to each of them.

Mrs. Lyons suffered severe internal injuries on account of swallowing the broken glass in the Coca–Cola, and she testified that she suffered for many months from the effects of the glass in her stomach. There was about a tablespoonful of the broken glass in the bottle.

The recovery is based solely upon the theory that the Coca–Cola company was liable upon an implied warranty that the bottled drink was pure and wholesome, and that the fact that there was glass in the bottle when it was sealed and put upon the market for the public created liability for the injury to the one who drank it, regardless of whether the manufacturer was guilty of negligence or not. This rule is established in this state by the cases of Coca–Cola Bottling Co. v. Chapman, 106 Miss. 864; Rainwater v. Coca–Cola Co. 131 Miss. 315; and Grapico Bottling Works v. Ennis, 140 Miss. 502.

This being a case, then, grounded upon the theory of the breach of an implied warranty, we may discard any question arising in the record with reference to the right to recover on account of the negligence of the bottler, and proceed to ascertain whether or not recovery upon the other theory, that is, the breach of an implied warranty, can be maintained in the case. In such a case as the one before us three things only are to be ascertained, namely:

(1) Was the glass in the bottle when it left the factory and was offered to the public?
(2) Did the consumer have title and rightful possession of the bottle?
(3) Did the consumer receive injury from drinking the Coca–Cola with the glass in it?

The main point presented for reversal of the judgment is that, since the right of recovery depends upon the breach of an implied warranty on the part of the manufacturer that the bottled goods were pure and wholesome, there can be no recovery in the case because there was no implied warranty of the purity of the drink for the reason that there was no contractual relation between the injured party, Mrs. Lyons, and the Coca–Cola company, or the retailer, Belen Drug Company.

It is contended that Mrs. Lyons had no contract with the clerk at the drug store who sold and delivered the Coca–Cola, for the reason that Mrs. Jackson, the lady friend with *307 her, ordered and paid for the drinks for both of them. It is urged that, therefore, there was no contractual relation between Mrs. Lyons and the manufacturer of the Coca–Cola; that the bottle of Coca–Cola was not purchased by Mrs. Lyons, but was given to her by Mrs. Jackson; that, consequently, Mrs. Lyons cannot recover upon the theory of a breach of warranty; and that since she has made no effort to recover upon the theory of negligence the case must fail.

We have carefully considered the question, and it appears to be a new proposition in this state, so far as we are able to discover, and we are of opinion that the position of appellant is not maintainable, because, as we see it, the bottle of Coca–Cola which Mrs. Lyons drank was at least a gift to her by her friend, Mrs. Jackson, and since the gift carried with it the title, and the implied warranty runs with the title, Mrs. Lyons was the owner, and rightfully in possession thereof as one of the public when she drank the Coca–Cola, and that the manufacturer impliedly warranted the purity of the drink to such of the public as became the rightful possessor and owner of the Coca–Cola. Therefore, if the drink was injurious by reason of having glass in it, the bottling company was liable to the consumer.

There is another theory which might be offered to sustain our view just expressed, and that is that the purchase of the two bottles of Coca–Cola by Mrs. Lyons and Mrs. Jackson was a joint purchase; that is, that the sale by the drug clerk was to both of these ladies, regardless of which one ordered or paid for the drinks, the idea being that it would make no difference which one of the parties ordered the drinks, they were sold to both of the ladies, and it would not be material which one paid for them, because the contract of sale had already been made between the seller and the two purchasers, and the payment for the drinks was merely the settlement of the obligation or debt incurred by both. However, we feel that it would be better to rely upon our first view than upon the latter, because it seems that the first one is the soundest.

Complaint is made by the appellant that a certain instruction granted the appellee presented an erroneous theory to the jury, in that it told the jury that–

“If the defendant manufactured or bottled and placed upon the market the bottle of beverage called ‘Coca–Cola’ in question in this case, for human consumption, and that the plaintiff, Mrs. Lyons, purchased the said bottle of beverage in due course of trade, *** and that the said bottle of Coca–Cola so purchased contained a quantity of small particles or pieces of glass therein, *** and plaintiff was thereby damaged, it is your duty to return a verdict for the plaintiff.”

The evil claimed to exist in this instruction is that it told the jury they should find for the plaintiff if the defendant manufactured and placed on the market the bottle of beverage in question, regardless of whether the glass got into the bottle after it left the factory, or regardless of whether the method of bottling employed by the manufacturer was such that the glass could not have gotten into the bottle until after it left the manufacturer.

We do not think the instruction was erroneous because it referred to the bottle of Coca–Cola in question, and, as the testimony was undisputed that this bottle came from the manufacturer sealed, the glass must have been in the bottle before it left the factory. There is no conflict in the evidence on this point. Consequently the only thing left to the jury to decide was whether or not there was in fact glass in the bottle of Coca–Cola which Mrs. Lyons drank; and as the undisputed testimony shows that the glass was in the bottle of Coca–Cola which she drank, and that it damaged her, the instruction was correct, even though it may be considered equivalent to a peremptory instruction to find for the plaintiff. If the suit had been predicated on the theory of negligence instead of the theory of implied warranty, then our conclusion as to its correctness would be otherwise.

In the Chapman Case, supra, the court said:

“There is evidence for appellant that its system for cleansing and filling bottles is complete, and that there is watchfulness to prevent the introduction of foreign substances. Nevertheless, the little creature [mouse] was in the bottle.”

So, if the broken glass was in the bottle when it left the factory, the manufacturer is liable for the damage done the consumer, even though the method of bottling was complete and perfect.

But the appellant contends that, when the manufacturer shows that the method of bottling is so efficient and perfect that a foreign substance cannot get into a bottle, then a question of fact arises for the determination of the jury as to whether or not the foreign substance got into the bottle after it left the factory, and that the court in the case before us erred in not permitting the appellant to submit that question to the jury.

The point is interesting, but we do not decide now whether such proof on the part of the manufacturer as to the perfect and efficient method of bottling would raise a question of fact as to whether or not the foreign substance got into the bottle before or after it was sealed and placed upon the market, because the record in this case does not show any such perfect and complete method of bottling as would be sufficient to raise the question as contended for by the appellant; and this being true, we decline to decide it at this time. The Chapman Case, supra, seems to be different in this regard.

*308 This record shows that there were inspectors to inspect the bottles of Coca–Cola after they were sealed and before they left the plant to see that they contained no foreign substance. The Coca–Cola company failed to put these inspectors on the witness stand to show an inspection. The persons said to be employed to inspect were not experienced or competent, so far as the evidence shows.

The testimony offered, but refused by the court, to show the sanitary condition of the bottling plant, was properly refused, because the sanitary condition might have been all right and yet the method of bottling improper or defective to the extent of permitting foreign substances to get into the bottles of Coca–Cola before they were sealed and sent out for the use of the public.

We are not prepared to say that, if the Coca–Cola company had shown that the method of bottling was perfect, and that it was impossible for the foreign substance to get into the bottle while it was being filled and sealed, then the question of fact for the decision of the jury—whether the foreign substance got into the bottle after it left the factory—would not thus be raised; but, as we have said, the point is not presented by the record, because a perfect method of bottling was not there shown, for the reason mentioned. [***]

Counsel for appellant contend that the verdict of $2,500 is excessive. We have reviewed the testimony on this phase of the case, and while the testimony of the plaintiff may have the marks of exaggeration or honest but unnecessary fear in it, yet it was positive, and the jury had the right to believe it. And if what the plaintiff testified to with regard to the extent of her injuries and suffering for nearly a year on account of the glass being in her stomach is true, we do not think $2,500 is an excessive amount to be allowed for the injury. It is true that probably she ought to have offered more expert medical testimony as to the extent of her injuries than she did; however, there are some injuries and internal troubles that the injured party is fully competent to testify about. In fact, the injured person here knows more about the pain she suffered from the character of injury involved than the attending physician could possibly know. The doctor, in such a case, generally knows only what the patient tells him, and he testifies as to the condition of the patient from what she has told him, and possibly some other slight corroborative symptoms.

The jury thought that $2,500 was a reasonable amount for the injuries received in this case and we see no good reason for disturbing the verdict.

The judgment of the lower court is affirmed.

Note 1. Formalist versus Functionalist Legal Reasoning. The court announces that it is grounding the case in a theory of breach of implied warranty rather than negligence. It states that implied warranty will require three elements: 1) the glass must have been in the bottle when it left the factory and was offered to the public; 2) the consumer must have had title and rightful possession of the bottle; and 3) the consumer must have suffered injury from drinking the soda which contained glass. Unlike negligence, the claim for implied warranty does not require fault by the defendant. In that sense, it resembles strict liability. The court attempts to limit the scope of the tort action by insisting on a tight causal nexus (ensuring that the glass was in the bottle when it left the factory suggests nobody else could have been responsible); it then also points to the requirement of “title or rightful possession.” This provision seeks to limit the possible scope of liability by insisting on privity or a “contractual relation between the injured party” and either the manufacturer or the retailer. However, the court treats the privity requirement here as a formal technicality. It considers two means of surmounting the factual challenge present on these facts, namely that the injured party did not buy the bottle herself.

What are the two theories it considers, which does it settle on, and why? In its reasoning, it can be seen as disregarding a formalist theory that would insist on technically mapping the facts onto privity, even if the theory strained the concepts to do so. Instead, it opts for a functionalist theory that seeks to make the injured party whole and better captures the behavior and intentions of the party as well as aligning better with the purposes of the law.

Note 2. What was the defendant alleging had been erroneous about the way the jury was instructed? The court rejected this argument and agreed that it was proper to exclude the evidence defendant proffered to show the sanitary condition of the bottling plant. Can you summarize the court’s reasoning? What did it leave room for in future cases?

Note 3. Many early products liability cases were oriented in theories drawn from contract law, such as theories of warranty (express or implied) or from the law of sales. Based on what you have learned about express waivers of liability (in Module 4, in connection with Assumptions of the Risk), what do you imagine might be the costs, benefits, and limits of an approach to consumer protection that is grounded in contracts, versus torts? What theories does the court entertain in Coca-Cola Bottling Works to circumvent the formal bar to recovery that would be imposed if the lack of privity here were dispositive?

Note 4. The court’s discussion of damages reveals the sense of uncertainty that often attached to damages awards based on medical evidence or testimony. Because there were fewer available and fewer sophisticated methods of tracking and verifying patient’s symptoms, courts often had to make determinations based on witness credibility (and, as in cases like this, the view that the doctor could verify, at least, that the plaintiff had been complaining of these symptoms during the time period she claimed before the court). These evidentiary difficulties, and the accompanying judicial suspicions, may help you understand the limits on allowing recovery for emotional distress, as well as their partial erosion over time as medical and psychiatric science advanced.

Note 5. The court refers to a case (Coca-Cola Bottling Co. v. Chapman) in which a mouse was discovered in a soda bottle. A famous case in the United Kingdom, Donoghue v. Stevenson, featured digestive injuries and shock when a Scottish woman discovered a decomposing snail in her ginger beer after she had already consumed most of the contents of the bottle. She brought a now-infamous lawsuit after suffering from the physical and emotional stress of the experience. The litigation was ultimately successful for the plaintiff and reshaped the British law of consumer protection by allowing a consumer to recover for injuries suffered due to a defective product even when it was not inherently dangerous and even when her friend had purchased it (which would ordinarily cause the plaintiff to fail to meet the privity requirement). While she triumphed in court, Ms. Donoghue endured public critique and character assassination for bringing the lawsuit (and it was even suggested that her “friend” was an extramarital lover). Many accounts tell the story of the lawsuit and provide details that help frame the issue:

Donoghue spied the decomposing gastropod, mixed with bits of ice cream, bobbing in a glass of ginger beer…. The sight of it would continue to haunt the Scottish woman for years to come. …Three days after finding bits of dead mollusk in her drink, Donoghue visited a doctor for sharp pains shooting in her stomach. Three weeks later, she was hospitalized at the Glasgow Royal Infirmary with severe gastroenteritis and shock. Donoghue’s next steps — seeking out a lawyer and filing a claim against both Minghella and David Stevenson, the owner of the company that made the ginger beer — were not exactly typical for people of her background. Lawyers were for wealthy people. Donoghue, the daughter of a steelworker, was the second youngest of six and worked as a shop assistant. [S]he found the snail on August 26, 1928 — long before high-profile personal-injury lawsuits against companies like McDonald’s and Ford were the norm rather than the exception. Personal-injury laws only applied to the person who had purchased the defective product, and it was Donoghue’s friend, not her, who had paid for the ginger beer. The only exceptions were if the product was inherently dangerous or if the producer had misled the customer into thinking it was safe while knowing that it wasn’t. In either case, the ginger beer did not qualify. [A] solicitor, Walter Leechman, … agreed to represent Donoghue pro bono. After nearly a year of preparing documents and going through legal books, Leechman and Donoghue filed a lawsuit asking for £500 in damages and £50 in court fees. The sum, worth approximately £35,000 ($45,000) in today’s money, was considered extravagantly large. As with many personal-injury cases today, the matter became about much more than the incident itself — and it came at great personal cost to Donoghue.

If you’re curious to read (or listen to) more, you’ll find it here https://narratively.com/the-woman-who-found-a-snail-in-her-soda-and-launched-a-million-lawsuits/

Note 6. Should it matter what is found in the cola bottle so long as it isn’t Coke? Should worse things give rise to higher damages? Or lower requirements of proof of negligence? Should it be material if the item is particularly objectionable, such as an “unpackaged prophylactic” (i.e. a used condom)? Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117, 121–22 (Me. 1970), overruled on other grounds by Culbert v. Sampson’s Supermarkets Inc., 444 A.2d 433 (Me. 1982) (upholding a jury verdict for plaintiff when “defendant negligently caused or permitted a foreign object to enter a bottle of Coca-Cola it had processed. The foreign object was of such a loathsome nature it was reasonably foreseeable its presence would cause nausea and mental distress upon being discovered in the place it was by a consumer who was in the process of drinking from the bottle. The mental distress was manifested by vomiting.”)

The next case became the foundational case in the United States for the idea that privity would no longer be necessary for recovery under tort law, at least in cases where injury was caused by an inherently dangerous product.

The Collapse of Privity

MacPherson v. Buick Motor Co. Court of Appeals of New York (1916)
(217 N.Y. 382) Justice Cardozo

The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car it suddenly collapsed. He was thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully concealed it. [***]The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser.

[The court here reviews earlier cases that diverge. Some cases had held that the manufacturer owed a duty to ultimate purchasers when the product was “inherently dangerous.” Other cases narrowed this rule so that the inherently dangerous classification would be limited to guns, poisons or other products intended or likely to injure or destroy. A third set proposed a rule that imposed liability for products that became injurious when negligently made; Cardozo followed this third line.]

If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case.

There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow.

We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law. [***]

In this view of the defendant’s liability there is nothing inconsistent with the theory of liability on which the case was tried. It is true that the court told the jury that “an automobile is not an inherently dangerous vehicle.” The meaning, however, is that danger is not to be expected when the vehicle is well constructed. The court left it to the jury to say whether the defendant ought to have foreseen that the car, if negligently constructed, would become “imminently dangerous.” Subtle distinctions are drawn by the defendant between things inherently dangerous and things imminently dangerous, but the case does not turn upon these verbal niceties. If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent. In varying forms that thought was put before the jury. We do not say that the court would not have been justified in ruling as a matter of law that the car was a dangerous thing. If there was any error, it was none of which the defendant can complain.

We think the defendant was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer. It was not merely a dealer in automobiles. It was responsible for the finished product. It was not at liberty to put the finished product without subjecting the component parts to ordinary and simple tests [c]. Under the charge of the trial judge nothing more was required of it. The obligation to inspect must vary with the nature of the thing to be inspected. The more probable the danger the greater the need of caution. [***]

The judgment should be affirmed with costs.

Note 1. Privity. Identify the rationales for the original doctrine. How and why does Cardozo choose to limit privity? How does his opinion seem to serve the various purposes of tort law? Does it strike you as being at odds with his ruling in Palsgraf?

Note 2. Contrary views. A vigorous dissent in MacPherson by Justice Bartlett began by reciting the traditional rule of privity: “[A] contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of such article.” (2 Cooley on Torts [3d ed.], 1486.) MacPherson v. Buick Motor Co., 217 N.Y. 382, 397, 111 N.E. 1050 (1916). He noted the exceptions to the rule, which in his opinion, failed to apply here: “The exceptions to this general rule which have thus far been recognized in New York are cases in which the article sold was of such a character that danger to life or limb was involved in the ordinary use thereof; in other words, where the article sold was inherently dangerous. As has already been pointed out, the learned trial judge instructed the jury that an automobile is not an inherently dangerous vehicle.” Id. He forcefully rejected the idea that privity could be dispensed with here, short of overruling venerable precedents from England as well as New York.

I do not see how we can uphold the judgment in the *400 present case without overruling what has been so often said by this court and other courts of like authority in reference to the absence of any liability for negligence on the part of the original vendor of an ordinary carriage to any one except his immediate vendee. The absence of such liability was the very point actually decided in the English case of Winterbottom v. Wright, and the illustration quoted from the opinion of Chief Judge RUGGLES in Thomas v. Winchester assumes that the law on the subject was so plain that the statement would be accepted almost as a matter of course. In the case at bar the defective wheel on an automobile moving only eight miles an hour was not any more dangerous to the occupants of the car than a similarly defective wheel would be to the occupants of a carriage drawn by a horse at the same speed; and yet unless the courts have been all wrong on this question up to the present time there would be no liability to strangers to the original sale in the case of the horse-drawn carriage. Id. at 399–400.

Justice Bartlett’s concerns can be captured concisely in his citation to an early English case, Winterbottom v. Wright, quoting from Lord Abinger: “Unless we confine the operation of such contracts as this to the parties who enter into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.” Id. at 396-397.

Are these concerns overblown? Why or why not?

Note 3. Scope. Can you tell from this opinion how far the court wishes to extend the possible field of liability for products bearing extra risks or defects that the customer will not have an opportunity to inspect?

Note 4. The Pace and Nature of Common Law Change. MacPherson is often cast as the case that toppled the “citadel” of privity, or the longstanding limitations it represented. See William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791, 799 (1966). Yet the holding of the case was often limited in ways that continued, effectively, to serve as barriers to recovery. Consider again, Redmond v. Borden’s Farm Products Co. (245 N.Y. 512, 1927), mentioned as a note case supra under “Federal Regulation and the Slow Changes in State Tort Law”). Redmond held that a fourteen-month-old infant who lacked privity with a dairy farm could not recover for injuries sustained while she was drinking milk out of a glass bottle purchased by her parent). If MacPherson truly “toppled” the citadel of privity, how could a case decided almost a decade later still find that privity barred recovery for innocent injury? Is an automobile sufficiently different from a bottle of milk? Was there a difference in the manufacturers’ duties to inspect? Is there some other way to distinguish or reconcile the cases?

In fact, privity released its grip on the common law over decades rather than overnight. Even in New York, which was bound by MacPherson’s decision, and even as late as 1961, the Court of Appeals wrestled with how to resolve a case of injury in which the victim lacked formal privity with the defendant. In Greenberg v. Lorenz, a fifteen year-old, Sheila, was injured by a sharp metal object in a can of salmon purchased by her father. While the court did permit the plaintiff to recover despite the lack of privity, the court seemed to feel obliged to defend its reasoning.

In our view, the father’s purchase of the can of salmon to be eaten not by himself alone, but by the members of his household, including the plaintiff Sheila as well, was clearly one made by him for the entire household. [***] *885 It is not without interest in this case, though we need not test our decision on the incident, that the salmon was bought at Sheila’s own request, because she preferred it to tuna fish which her mother had originally intended to serve at the evening meal. Greenberg v. Lorenz, 12 Misc. 2d 883, 885 (App. Term 1958), aff’d as modified, 7 A.D.2d 968, (1959), aff’d and modified, 9 N.Y.2d 195 (1961).

In the passage above, the court pointed out the father’s intent to provide for the whole household as well as Sheila’s request for this particular food, as though suggesting that her intent ought to be relevant in considering privity. It offered these factors to supplement an argument that the lack of privity should not be determinative on these facts.

It also turned to policy considerations. Food manufacturers necessarily contemplate a set of consumers broader than the purchasers, especially when advertising to parents who buy and prepare food for children:

In the case of highly advertised ‘baby foods,’ for instance, what can be fairly and reasonably urged to deny a tender infant recovery because it cannot claim that an umbilical cord of privity attaches it to a monolithic ‘chain store?’ TV, radio, billboard, magazine and newspaper advertising zoom forth strident ballyhoo and urgent ‘invitations to deal,’ addressed to fathers and mothers, to be sure but actually intended for the special benefit of their infants—for whom the foods have been primarily processed. As between weakening of privity in these food cases and diminishing consumer protection, common sense, as well as good conscience, permit no choice. ‘It is a melancholy state of affairs to witness courts more preoccupied with privity than consumer protection.’Id.

The court states its values plainly in prioritizing protection over privity but it does not do so lightly.It bolsters its arguments by noting the “constantly mounting criticism leveled at the requirement of strict contractual privity in this type of case” and concludes that privity can longer be understood to “confin[e] the right of recovery to the very individual who made the purchase.” Id. at 886.

In the light of today’s conditions it is fair to say that the rule is all but an anachronism—weighed on the scales of reality, it is found wanting. And, indeed it has been rejected outright in some jurisdictions, and denigrated in others in ‘domestic meals’ cases. This process has been supported on different bases: ‘household agency’, ‘agency for the consumer’, or ‘third party beneficiary’. The activating dynamic, however, has been constant, although variously called: ‘public policy’, ‘breach of duty’, ‘privity imposed by operation of law’, and simply ‘social justice’. Id.

Finally, it is noteworthy that the court could not identify precisely the theory underlying the right of recovery in the absence of privity but articulated strong views in favor of it nonetheless:

If it is not altogether clear whether it is on the theory of implied agency or third party beneficiary doctrine, or because it is a ‘wrongful act, neglect, or default’ (Greco v. S. S. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 560, 115 A.L.R. 1020), it is manifest, nevertheless, that in these cases of the breach of an implied warranty of fitness for use in connection with the sale of foodstuffs, the traditional concept of privity no longer constrains the courts to an absurd as well as unconscionable result. Id. at 887.

Given what you understand about the common law, how would you explain the persistence of privity after MacPherson, even in cases like Redmond (almost a decade later) and Greenberg (45 years later)? What valuable role did privity serve? Why did the court not find it applied here? Which parts of the opinion are descriptive, and which parts are normative?

Note 5. Torts versus Contracts. What are the implications for Macpherson’s (famous) dicta below, from the perspectives of consumers and the various stakeholders affected by tort law?

We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.

Why does it matter whether contract or tort law provides the basis for recovery? What is the difference between a warranty and a contract? Does MacPherson feel like a natural extension of Mazetti? In what ways do these two cases diverge (descriptively) and to what extent (normatively), should they diverge or adopt parallel reasoning?

The next case explores express warranties and representations made to the buyer of a car.