In this nonjury case, a retailer is being sued by the plaintiff individually and as guardian ad litem of her two infant daughters, for both negligence and breach of warranty. All three claim personal injuries as a result of eating jam which allegedly contained foreign deleterious substance.
The plaintiff mother purchased the jam (a sealed jar) from the defendant.
In the absence of any proof that the defendant, as retailer, was negligent in any manner in the handling of the product from the time of its receipt to the time of sale, that branch of defendant's motion seeking dismissal of the cause of action based on negligence is granted. The product was in sealed jars. The defendant was neither the manufacturer nor the packer.
The motions to dismiss the warranty actions of both infants as a matter of law on the ground that there is no contractual relationship between the infants and the defendant seller, pose a different and most significant issue which has not been squarely presented to the Court of Appeals since 1927 (Redmond v. Borden's Farm Prods. Co., 245 N.Y. 512): "May a child
The privity issue raised here is of broader significance than in Conklin v. Waldorf, Astoria Corp., decided by this court (5 Misc.2d 496), where the injured plaintiff (as here) was not the "buyer", but the guest of her friend who paid the check, and it was likewise claimed that the privity element was lacking between the plaintiff and the defendant restaurant. Obviously, since store food sales by far exceed restaurant food sales and directly affect the rights of every individual as a consumer, as well as the rights of every retailer and manufacturer, the decision on the question presented here is of deeper impact and will have more general application.
The defendant (represented by one of the most noted and respected law firms in the country) strenuously argues that New York still observes the strict privity requirement. It is stoutly maintained that the infants cannot sue for breach of warranty in the absence of a contractual relationship between the infants and the defendant. It is claimed that "there is no privity since the mother made the purchase", and the holding in Chysky v. Drake Bros. Co. (235 N.Y. 468 ), that: There can be no breach of warranty unless there is privity of contract, still represents the law of this State, and has been followed in Redmond v. Borden's Farm Prods. Co. (245 N.Y. 512, supra); Turner v. Edison Stor. Battery Co. (248 N.Y. 73 ); Ryan v. Progressive Grocery Stores (255 N.Y. 388 ); Gimenez v. Great Atlantic & Pacific Tea Co. (264 N.Y. 390 ); Bourcheix v. Willow Brook Dairy (268 N.Y. 1 ); Smith v. Hanson (228 App. Div. 634 ); Zotto v. Merkel Bros. (229 App. Div. 793 ); Block v. Empire State Doughnut Corp. (233 App. Div. 774 ); Massey v. Borden Co. (265 App. Div. 839 ); Hopkins v. Amtorg Trading Corp. (265 App. Div. 278 ); Salzano v. First Nat. Stores (268 App. Div. 993 ); Dickinson v. Sperling (158 Misc. 905 ).
This court was greatly disturbed by the inanity of the strict application of the privity doctrine when the subject arose in the Waldorf case (5 Misc.2d 496, supra). As a result, the Waldorf case (supra) represents the first direct and concentrated judicial attack in New York upon the citadel of privity. The court was roused into investigating the entire privity problem far beyond the precise question in the case, and made an exhaustive research and study of the subject. That which went beyond the decisional need for the Waldorf case (supra) was submitted in the form of articles to the New York Law Journal and
In New York City, among subsequent decisions supporting the view and principles expressed in the articles, Mr. Justice SCHWARTZWALD, in Welch v. Schiebelhuth (11 Misc.2d 312) permitted the plaintiffs, who were not the purchasers, to amend their complaints to allege breach of warranty against the retailer. The plaintiffs, who sought and obtained the amendment, were the husband of the purchaser and two guests — the husband's brother and mother; and in another New York City case (May 28, 1957), Mr. Justice MANGAN used the articles as the basis for permitting a plaintiff, who purchased a bar of candy from a retailer, to amend his negligence action against the manufacturer to breach of warranty, and to charge the jury accordingly (Lardaro v. M B S Cigar Corp., 10 Misc.2d 873).
On the other hand, there have been decisions to the contrary, such as the most recent one of Zampino v. Colgate-Palmolive Co. (10 Misc.2d 686 [April, 1958]), where the court used the language of the Chysky (235 N.Y. 468, supra) and Gimenez (264 N.Y. 390, supra) cases (p. 690): "A cause of action for breach of warranty rests on contractual relations and hence there is no warranty except to the person to whom the sale is made".
Since the Waldorf (5 Misc.2d 496, supra), Lardaro (supra) and Welch (supra) cases were not taken up on appeal, a state of confusion presently exists. It is hoped that, because the privity problem is of vital concern, the higher courts will clarify the legal atmosphere clouding the subject. As Lord MANSFIELD said: "Lawyers and litigants are entitled to know where they stand as to what their rights are and what the law is."
THE NEW YORK TREND
The court disagrees with the defendant's interpretations of the Blessington (Blessington v. McCrory Stores Corp., 305 N.Y. 140) and Bowman (Bowman v. Great Atlantic & Pacific Tea Co., 284 App. Div. 663) cases (discussed later) and places a different construction on them as well as upon some of the earlier cases cited, such as the Ryan (255 N.Y. 388, supra) and Hopkins (265 App. Div. 278, supra) cases. In addition, the defendant has entirely overlooked the recent (1956) case of Mouren v. Great Atlantic & Pacific Tea Co. (1 N.Y.2d 884). An analysis of these cases reveals a realization that thinking along strict
Fortunately, the court finds that New York has in some respects discarded the requirement of privity altogether by finding makeweights to offset the illogical and unrealistic notion that a warranty does not run to a consumer unless the consumer paid the purchase price. While not rejecting it completely as other States have (California, Florida, Illinois, Iowa, Kansas, Louisiana, Michigan, Mississippi, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Washington) New York has been liberal in discerning privity where less imaginative courts might not, and its findings have been warmly received even by those States which still cling to the strict privity requirement (Massachusetts, New Hampshire, New Jersey and Maryland).
The New York trend definitely indicates an enlightened movement toward the relaxation of the totally strict and unsound doctrine of privity (especially in food cases, since public health is involved). The court is therefore not confronted with the problem of whether stare decisis commands blind adherence to an outmoded doctrine which insofar as it rests on principle, fails in reason. And so the question is presented: "Is it conceivable in this modern day and age that New York is frustrated by and bound to an archaic and senseless privity rule which bars an infant's recovery where the mother purchases the unwholesome food?" If that be the law, it amounts to the court saying to the infant: "You cannot recover for your injuries because you didn't buy the food. Only the purchaser can sue because only the purchaser has privity with the seller. Therefore, your mother is the only one who can sue. And she can only sue for her own injuries, not for yours, because she was the buyer — even though you were both injured by eating the same unwholesome food, which she bought for both of you to eat."
THE EFFECT OF THE AGENCY AND THIRD-PARTY BENEFICIARY DOCTRINES ON PRIVITY
We now turn to the appellate cases which represent judicial makeweights to offset the built-in inequity of the privity requirement.
In Bowman v. Great Atlantic & Pacific Tea Co. (284 App. Div. 663 , supra, affd. without opinion 308 N.Y. 780 ), the Appellate Division (3d Dept.) held that the plaintiff, who was not the purchaser, was entitled to recover although her sister made the purchase. The court justified the finding by
Actually, the decision was based on the reasoning in the Ryan case (255 N.Y. 388 , supra) where Chief Judge CARDOZO was the first to skirt the strict privity requirement by holding that the husband might sue since the wife acted as his "agent" in making the purchase.
The warranty right was therefore extended to the husband where the wife was the purchaser. The court presumed from the relationship of husband and wife that the husband furnished the money for the purchase. Thus Chief Judge CARDOZO fought artificiality with part truth.
A fortiori, it is fair to deduce from the Bowman (284 App. Div. 663, supra) and Ryan (255 N.Y. 388, supra) cases that where the buyer can be shown or presumed to have been the agent of the injured person in making the purchase, the nonbuyer consumer may indeed recover for breach of warranty.
However, logic dictates that the third-party beneficiary doctrine is even more appropriate than the joint "household" funds agency theory. Where the child's money is not being used for the purchase, the mother is not actually acting as the child's agent. In reality, she is making the purchase (executing the contract) for the child's benefit.
The defendant disagrees with this court's statement in the New York Law Journal articles (supra) citing Blessington v. McCrory Stores Corp. (305 N.Y. 140 , supra) — "Today the benefit of an implied warranty of quality under the Sales Act has been extended by our Court of Appeals to an infant where the parent is the purchaser" ("Implied Warranties of Quality and Wholesomeness in the Sale of Food", N. Y. L. J., April 18, 1957, p. 4, col. 2).
The defendant argues that this case is not authority for the proposition that an infant may recover in warranty where the mother purchases the food and that the question of privity was not presented directly and squarely as such to the Court of Appeals; that the case involved one question and one question only, namely — "what statute of limitations applies to a breach of warranty action"; that the holding that the six-year contract Statute of Limitations applied to a warranty action is strong proof that the "privity of contract" rule is applicable.
In the Blessington case (supra) the plaintiff father as the administrator of his infant son, sued the retailer for the boy's death from burns when a "cowboy suit" he was wearing came
Since the court permitted the breach of warranty action to stand, the only possible conclusion to be drawn is that an infant obtains the warranty right where the mother purchases the product for the infant's use or benefit.
It is suggested that the court may have allowed the warranty action because it was obvious that the mother did not buy the "cowboy suit" for herself and that the retailer, at the time of the sale, therefore had knowledge that she was making the purchase for someone else's benefit.
If we apply this reasoning, then the test would be whether the parent specifically discloses to a retailer that the purchase is being made for the benefit of the infant.
The court cannot conceive the law to be that in order for the nonbuyer consumer (the infant) to maintain a warranty action, it is necessary for the purchaser (the housewife) to disclose to the retailer at the time of the purchase of ordinary household foodstuffs (or of any goods for that matter) that she is not buying the goods for herself but for the benefit of her infant, a member of the family, a relative or even a guest who has been invited to partake of a meal.
The suggestion has also been made that the only reason the third party was permitted to sue for breach of warranty where the goods were purchased by someone else was because it was a death action and the court was emotionally moved thereby. The Blessington case (305 N.Y. 140, supra) was strictly a breach of warranty action. The father, as administrator, sued for personal injuries and pain and suffering during the infant's lifetime. It definitely was not, the court distinctly said, an action under the death statute. At any rate, this court does not subscribe to that reasoning, because to do so would mean the Court of Appeals prescribed that "death" alone would be the determinative factor in deciding whether the nonbuyer consumer may sue for breach of warranty.
In allowing the warranty action to stand, the implications and unmistakable inferences are that the court did so either on the
The effect of giving importance to the matter of determining "whose money was used" and "who was the buyer (within the meaning of the statute)" indicates the genuine unsoundness of the strict application of the privity rule and the strained effort to hurdle the privity barrier. It caused one writer (Prof. Miller of Syracuse, N. Y. State Bar Bull. Oct., 1952, p. 331) to properly remark: "Mental gymnastics may be required in answering the simple question, `who was the purchaser'? [In] Gimenez v. Gr. Atl. & Pac. Tea Co., 264 N.Y. 390, 191 N. E. 27 (1934), [the] wife, who went to the store, [was] deemed the purchaser irrespective of evidence that she lived with and was supported by [the] husband; [in] Ryan v. Progressive Stores Inc., 255 N.Y. 388, 175 N. E. 105 (1931), [the] wife who went to the store [was] deemed the agent of her husband who was rendered ill by the food; [in] Kurriss v. Conrad & Co., 312 Mass. 670, 46 N.E.2d 12 (1943), plaintiff, who contracted dermititis from a dress she selected at a store but which she charged to her sister's account, [was] deemed the purchaser; [in] Raymond v. J. R. Watkins Co., 184 F.2d 925 (8th Cir. 1950), plaintiff, who gave the money to a friend to purchase shampoo direct from the manufacturer's salesman, [was] deemed the purchaser."
Prof. Miller's query was answered by the Bowman (284 App. Div. 663, affd. without opinion 308 N.Y. 980, supra) and Blessington (305 N.Y. 140, supra) cases and the case of Mouren v. Great Atlantic & Pacific Tea Co. (1 N.Y.2d 884 , supra) where the Court of Appeals affirmed without opinion the Appellate Division decision (1 A.D.2d 767 [1st Dept., 1956]) which had affirmed but modified the judgment by reducing the award.
In the Mouren case (supra) the trial court (McCULLEN, J.) held (139 N.Y.S.2d 375 ), that the implied warranty extended to the wife though the husband was the purchaser. The agency theory formed the basis of its nationale (p. 377):
The memoranda decision (1 N.Y.2d 884, 885) states: "In the Court of Appeals defendant argued that a prima facie case had not been established; * * * and that, as a matter of law, plaintiff wife may not recover for a breach of warranty." (Italics supplied.)
An examination of defendant's brief reveals that the defendant presented this argument: "There was no privity of contract between Alice (the wife) and the A. & P. and she cannot recover on a contract claim for breach of warranty (where the husband was the purchaser)". In affirming, the Court of Appeals pierced the privity veil by employing either the agency or third-party beneficiary theories. If the wife's funds or joint household funds were used, then the husband acted as "agent" for his wife. If the husband's money was used, then he made the purchase for the benefit of his family consisting of his wife and infant (the infant was not injured). Again, common-sense justice outranks technicality. Whatever method of construction is used it seems apparent that the judicial concern is primarily with eroding away an artificial concept.
HISTORICAL BACKGROUND AND ERROR
Dissecting the Chysky (235 N.Y. 468, supra) and Gimenez (264 N.Y. 390, supra) cases reveals that the sole reason for
The fact of the matter is, however, that the breach of warranty action is a hybrid. It starts out contractually but in reality emanates from the failure to either perform a duty to provide food which is wholesome, or to carry out an implied representation that the food is wholesome. Thus, it is actually suis juris, a combined tort and contract action — commencing in contract and resulting in tort where the seller has violated his obligation and the tacit representation that the food is wholesome. The warranty is imposed by law, in the name of public health and public policy, and not because of any express or implied-in-fact understanding of the parties. (Prosser, The Implied Warranty of Merchantable Quality, 27 Minn. L. Rev. 117; James, Products Liability, 34 Texas L. Rev. 192; 2 Harper & James, Law of Torts, § 28.15 et seq.; 34 Ore. L. Rev. 59; 8 Vand. L. Rev. 149; 1 Williston on Sales [Rev. ed.], § 197.)
The fact that a warranty is a phase of a contractual arrangement does not mean that the warranty must be treated as having only contractual significance. In its last analysis, "The word `contract' indicates the source from which the obligation to act is derived, while the word `tort' is used to indicate the wrongful act upon which liability is predicated." (1 Street, Foundations of Legal Liability, p. xxix .)
The implied warranty sounds in tort as well as in contract (41 Harv. L. Rev. 263; 29 Yale L. J. 762; 23 Calif. L. Rev. 621; 4 Fordham L. Rev. 299; 9 St. John's L. Rev. 216; Vold on Sales, p. 476). "Whether the action be one on warranty or negligence, it comes to the same thing. It sounds in tort." (Davis v. Williams, 58 Ga.App. 274, 278.)
Historically, there is no justification for the notion that privity of contract is essential to support an action for breach of an implied warranty. Originally the remedy for breach of such warranty was an action on the case for breach of an assumed duty, a tort action in the nature of deceit but in which scienter or intent to deceive did not have to be alleged. Warranty was viewed as a form of misrepresentation and the gravamen of the action was the warranty and not conscious deception. It was not until the development of assumpsit and its application
It has been suggested that privity became a requirement only because the early cases happened to satisfy it. (21 Minn. L. Rev. 315, 323.) Another explanation is that assumpsit was more convenient because it permitted the addition of common counts for money "had and received". (18 Cornell L. Q. 445, 446.) Dean Prosser points out that the tort element in warranty furnishes a strong argument for extending implied warranties from the manufacturer to the ultimate consumer, in the absence of any privity of contract (27 Minn. L. Rev. 117, 119) and to hold that a warranty is strictly contractual is "`to speak the language of pure fiction'" (Prosser on Torts [2d ed.], p. 493 ).
Prof. Williston, in his article "The Progress of the Law" (34 Harv. L. Rev. 741, 762 ) says: "The difficulty in theory, however, which most courts seem to feel, that the liability of a warrantor is contractual, and, therefore, can only run directly between a purchaser and his immediate seller, does not seem impressive. A warranty is in many cases imposed by law not in accordance with the intention of the parties; and in its origin is enforced in an action sounding in tort, and based on the plaintiff's reliance on deceitful appearances or representations rather than on a promise."
Vold on Sales (p. 476; 30 Ill. L. Rev. 398) states: "A warranty obligation is not necessarily promissory but may often be independently imposed by law where found socially advantageous".
Prof. Perkins states, in his article "Unwholesome Food as a Source of Liability" (5 Iowa L. Bull. 86, 96 ): "If the right is limited to the vendee of the unwholesome food it is because of technicality rather than reason. The peculiar responsibility imposed upon the dealer of foods is a form of `insurer's liability'. Because it happened by accident to go under the name of implied warranty, it has so far been limited in favor of the actual buyer". (Italics supplied.)
The error, therefore, took place originally when the courts mistakenly considered breach of warranty strictly as a contract action and held, as the court did in 1842, in Winterbottom v. Wright
And recently, in Rogers v. Toni Home Permanent Co. (167 Ohio St. 244 ) the court held that it was a mistaken notion that the term "warranty" implies a contractual relationship only. This idea, the court stated, was without historical foundation, for originally an action for breach of warranty was but an expansion of trespass on the case to include deceit, a remedy sounding in tort and requiring no privity.
In Hertzler v. Manshum (228 Mich. 416, 423) the court held: "The implied warranty, so-called, reaching from the manufacturer of food stuffs to the ultimate purchaser for immediate consumption is in the nature of a representation that the highest degree of care has been exercised and a breach of such duty inflicting personal injury is a wrong in the nature of a tort".
Our Court of Appeals has recognized the hybrid character of the breach of warranty action, for it said, in Greco v. Kresge Co. (277 N.Y. 26, 34 ): "The duty rested on defendant (retail dealer) to see, at its peril, that the food was fit for human consumption and it is based on considerations of public health and public policy * * * the breach is a wrongful act, a default and, in its essential nature, a tort."
And in Blessington v. McCrory Stores Corp. (305 N.Y. 140 , supra), the court said (p. 147): "While an action for breach of a statutorily implied warranty of fitness may involve, incidentally, some showing of negligence, the contract breached is not merely one to use due care, but is a separate (implied) contract of guaranty that the goods are fit for the purpose for which they are sold and bought".
In a breach of implied warranty action, the elements of a warranty by representation are present, and in a practical world there should be no magic in the esoterics of privity of contract. The principle imposing liability for damages sustained by this false representation is essentially a part of the doctrine of torts. (42 Harv. L. Rev. 415-417.)
The breach of warranty of fitness stems from a representation generally implied in fact, rather than a promise. The breach, therefore, smacks more of deceit and tort than it does of contract, despite the fact that it developed after assumpsit was accepted as the appropriate form of action for all breaches of warranty. If so, the warranty of fitness may be characterized as a "warranty of law". If the courts, through mistake or otherwise, generally consider the implied warranty as contractual rather than representational in character, it would be fatuous not to take into account the prevalence of that assumption. Even so, it should not be forgotten that the implied warranty is in large part an invention of law, irrespective of what is actually promised or represented by implication in the particular case. The moral of this analysis is not so much that a court should feel obliged to consider the breach of an implied warranty of fitness or merchantability a tort as that it should not feel obliged by logic and history to consider it an unalloyed breach of contract, with the normal consequences and limitations of such an approach. Results the court may believe desirable can frequently be founded on the tort theory (whether breach of actual representation or duty raised by law) or on a tort-contract hybrid, and it such not be inhibited in reaching those results by false notions of legal history or by other inappropriate assumptions. (Dickerson, Products Liability and the Food Consumer, pp. 42-44.)
WHY THEN THE PRIVITY BARRIER IN WARRANTY ACTIONS?
There is no earthly reason why the pernicious life of the privity requirement (Miller, N. Y. State Bar Bull., Oct. 1952, p. 315) persists insofar as warranty actions are concerned when, as far back as 1916, it had been removed from the negligence action (MacPherson v. Buick Motor Co., 217 N.Y. 382) other than the statement in the Chysky (235 N.Y. 468, supra) and Gimenez (264 N.Y. 390, supra) cases that breach of warranty rests strictly upon contract and therefore privity in an essential.
The hybrid tort-contract warranty action arises simultaneously with the pure negligence action in products liability cases. Both the negligence and warranty actions are for personal injuries resulting from the breach or default in the performance of a duty or the failure to live up to an implied representation. The only distinction is that the negligence action requires proof of failure to use due care, whereas breach of warranty is liability (without negligence) for the fitness of the product.
The measure of damages in breach of warranty actions is exactly the same as in negligence. If the warranty action is construed strictly on contract (so that privity is an essential), it is indeed strange that the measure of damages differs so vastly from that which is awarded in breach of contract actions. This differential should certainly trouble the purists for an explanation.
Furthermore, although negligence plays no part in a breach of warranty action, contributory negligence may be asserted as a defense to the breach of warranty action (Fredendall v. Abraham & Straus, 279 N.Y. 146; Coca-Cola Bottling Co. v. Barksdale, 17 Ala. App. 606; Kraft-Phenix Cheese Corp v. Spelce, 195 Ark. 407; Great Atlantic & Pacific Tea Co. v. Eiseman, 259 Ky. 103; Kelley v. Daily Co., 56 Mont. 63; Rudolph v. Coca-Cola Bottling Co., 4 N. J. Mis. Rep. 318; De Groat v. Ward Baking Co., 102 N. J. L. 188; Coca Cola Bottling Works v. Kennedy, 13 Tenn. App. 199; Catalanello v. Cudahy Packing Co., 264 App. Div. 723; Kurth v. Krumme, 143 Ohio St. 638; Great Atlantic & Pacific Tea Co. v. Hughes, 131 Ohio St. 501, affg. 53 Ohio App. 255; Cordell v. Macon Coca-Cola Bottling Co., 56 Ga.App. 117; Ternay v. Ward Baking Co., 167 N.Y.S. 562).
And so a California court aptly remarked in Escola v. Coca Cola Bottling Co. of Fresno (24 Cal.2d 453, 463): "It is needlessly
In Greenwood v. Thompson Co. (213 Ill.App. 371) an Illinois appellate court granted recovery in an action on the case brought by the administrator of a restaurant patron mortally injured by defective food served by the defendant. The court said (p. 374): "Where an action on the case is brought for breach of warranty, the gravamen of the action is not fraud and deceit but merely lies in the wrongful act of the defendant in making a false warranty". Similar cases appear in several other States. (See Schuler v. Union News Co., 295 Mass. 350, 353; Burgess v. Sanitary Meat Market, 121 W.Va. 605, 611; Lovich v. Salvation Army, 81 Ohio App. 317.)
In Flessher v. Carstens Packing Co. (93 Wn. 48), the plaintiff sued a retailer in tort for negligence based on injuries caused by unfit beef purchased from the defendant. The Supreme Court of Washington held that despite his failure to show actual negligence the plaintiff was entitled to recover in tort for breach of implied warranty, the obligation being "created by implication of law independent of the contract" (p. 52). Liability was said to rest on "`the demands of social justice'" (p. 55). The court also said: "Whether the action be called one on warranty or of negligence it comes to the same thing. It sounds in tort" (p. 56).
It makes absolutely no sense whatsoever, therefore, to draw the fictional distinction of removing the privity barrier in the negligence action so that the nonpurchaser consumer may sue the manufacturer as well as the retailer for negligence, but not for breach of warranty, because of the erroneous assumption that the warranty action is based strictly on contract.
IS LEGISLATIVE ACTION NECESSARY?
Let us now turn to defendant's contention that the warranty extends to the immediate buyer only and that in order for the infant to obtain the benefit of the warranty right, it is necessary to secure a statutory amendment to section 96 of the Personal Property Law.
The section provides that there is an implied warranty as to quality and fitness (subd. 1): "Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment
There is absolutely no need for legislative change because it never could have been the intention of the Legislature to deprive an infant of the warranty right simply because the mother purchased the goods.
The words "reasonably fit for such purpose" mean that the goods are fit "for the purpose for which they are sold and bought" (Blessington v. McCrory Stores Corp., 305 N.Y. 140, 147, supra). And in Holt v. Mann (294 Mass. 21, 23), the court held that the ordinary purpose for which a housewife purchases foodstuffs is — for human consumption — "domestic meals" and household table use. "A finding that the ham is required for the purpose of domestic meals, and that such purpose is impliedly made known to the dealer, is as easy as a finding that one who orders a meal in a restaurant intends to eat it" (Smith v. Gerrish, 256 Mass. 183); "and a further finding in each instance that the intention of the buyer is made known to the seller" (Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90; Rinaldi v. Mohican Co., 225 N.Y. 70).
Ordinary "household table use" and "domestic meals" contemplates consumption by the nonbuyer consumer, whether he be an infant, husband, or even a friend or relative who has been invited as a guest to partake of a meal.
The law looks for "the natural and necessary result of the breach of warranty reasonably within the contemplation of the parties when the sale was made and warranty given." (Greco v. Kresge Co., 277 N.Y. 26, 30, supra; Ryan v. Progressive Grocery Stores, 255 N.Y. 388, supra.) "`We think that the mere purchase by a customer from a retail dealer in foods of an article ordinarily used for human consumption does by implication make known to the vendor the purpose for which the article is required. Such a transaction standing by itself permits no contrary inferences'" (Greco v. Kresge Co., supra, p. 30). (Italics supplied.)
Because it is so plainly manifest and glaringly apparent, the court can very well take judicial cognizance of the following, in line with the rule of "reasonable expectation and contemplation":
In Blackstone v. Miller (188 U.S. 189, 206) Justice HOLMES said: "When logic and the policy of a State conflict with a fiction due to historical tradition, the fiction must give way."
And in Allen v. Allen (246 N.Y. 571, 580), the court said that courts are now inclined "to look at the substance of rights rather than blindly to adhere to fictions".
The intention of the Legislature was discussed in the thoroughly illuminating, educational and convincing decision by a California court (where their Civil Code, § 1735, subd. , is absolutely identical with our Personal Property Law, § 96, subd. 1]), in Klein v. Duchess Sandwich Co. (14 Cal.2d 272 ). The husband was the purchaser of the food eaten by the injured wife. The privity question, a double-barreled one, was there presented for the first time, and handled most admirably. The first question raised was "Has the non-buyer consumer the right to sue the retailer for breach of warranty?" The second question was "May the non-buyer consumer sue the manufacturer as well as the retailer for breach of warranty instead of negligence?"
The defendant contended (as here) that the implied warranty created by the statute contemplates the existence of a warranty running only from an immediate seller to an immediate buyer, and that therefore the wife, who was not the purchaser, did not have privity of contract with the retailer; furthermore, that her husband, the purchaser, did not have privity of contract with the defendant manufacturer. Coincidentally, the court discussed the right of an infant to recover for warranty where the parent makes a food purchase and also elaborated upon the intention of the Legislature:
In Illinois, where the statute is exactly the same as in New York, the privity question was presented for the first time directly to a court of review in Welter v. Bowman Dairy Co. (318 Ill.App. 305 ). The court held, in a 62-page opinion, that when the purchaser (father) bought the milk, the defendant knew that the milk would be consumed not only by the purchaser but also by his family. Therefore, "the implied warranty that the milk was fit for human consumption extended to the plaintiff (infant), although she was not the purchaser" (p. 322).
The defendant contended that the warranty extended only to the purchaser and not to the infant, and cited, as authorities, Chysky v. Drake Bros. Co. (235 N.Y. 468, supra); Bourcheix v. Willow Brook Dairy (268 N.Y. 1, supra); Colonna v. Rosedale Dairy Co. (166 Va. 314); Gearing v. Berkson (223 Mass. 257, supra); Schlosser v. Goldberg (123 N. J. L. 470). The court
The result attained here has been achieved virtually all over the country by judicial construction and interpretation, rather than by legislative action, as exemplified by the decisions in California, Illinois and other States having exactly the same statute as New York.
Judge CARDOZO'S decision in Glanzer v. Shepard (233 N.Y. 236 ) stands as a living testament to the appropriateness and applicability of the third-party beneficiary rule in breach of warranty actions, particularly since public health is involved. It is absolute proof of the advisability of discarding the privity doctrine in the interest of justice as well as reason. Let us apply the decision to the facts in this case:
In Glanser In the case at bar "The defendants held themselves (The defendant held itself out to the public as out to the public as one who skilled and careful in their calling" sells food fit for human (p. 239). consumption.) "They knew that the beans (They knew or are presumed had been sold, and that on the to know that a housewife faith of their certificate payment makes the usual household food would be made" (p. 239). purchases for the benefit of members of her family and not just for herself.) "In such circumstances, assumption (Duty to sell fit food.) of the task of weighing was the assumption of a duty to weigh carefully for the (For the benefit of all who benefit of all whose conduct partake of the purchased food.) was to be governed" (p. 239).
And now Judge CARDOZO advances his reasoning for the extension of the third-party beneficiary rule, which is so ideally fitted to the sale of household food and drugs because of the "duty imposed by law" that the food purchased should be fit for human consumption by all who partake of it regardless of who pays for it:
It is significant to note that he actually overcomes the privity problem by using the "duty imposed by law" as a means of adopting the third-party beneficiary rule so that the defendant's promise to do something "though paid for by one", extends to "the benefit of another." There is no valid reason why the principle expounded here is not suitable and adaptable to breach of warranty cases.
FURTHER FORTIFICATION FOR THE THIRD-PARTY BENEFICIARY RULE.
Adoption of the third-party beneficiary rule has been frequently urged or its application favorably commented on especially in transactions made for the benefit of members of the family. (See 33 Colum. L. Rev. 868; 1 Law & Contemporary Problems, p. 1; 4 Fordham L. Rev. 295; 42 Harv. L. Rev. 414; 30 Ill. L. Rev. 398; 5 Iowa L. Bull. 86; 29 Mich. L. Rev. 906; 9 N. Y. U. L. Rev. 366; 4 St. John's L. Rev. 80, 9 St. John's L. Rev. 216; 27 Yale L. J. 1068; 23 Calif. L. Rev. 621; Vold on Sales, p. 476.)
The third-party beneficiary rule was applied in Ward Baking Co. v. Trizzino (27 Ohio App. 475, 482) where the court held that "this contract between the groceryman and the Ward
In Ketterer v. Armour & Co. (200 F. 322, 323) adopted in Davis v. Van Camp Packing Co. (189 Iowa 775, supra) and Klein v. Duchess Sandwich Co. (14 Cal.2d 292, supra) the court said:
The third-party beneficiary doctrine was approved in the Klein v. Duchess Sandwich Co. (14 Cal.2d 272, supra) case, citing Dryden v. Continental Baking Co. (11 Cal.2d 33) where the husband bought the bread, the court saying (p. 284): "In answer to the contention of the defendant baking company that no recovery should have been allowed on the implied warranty theory because there was lack of privity of contract, the court observed that, `assuming that privity is an essential element of such an action, it might well be urged that the wife * * *
The Klein case continues (p. 284): "The warranty as to the fitness of foodstuffs intended for human consumption was not intended to be solely for the benefit of the immediate `buyer', but was intended to be for the benefit of the ultimate consumer, — the existence of privity of contract not being essential in an action brought by such consumer on the warranty theory. To allow a recovery by such third person, who may have consumed unwholesome food purchased by another, would not impose a greater burden on the manufacturer or on the immediate seller of the food than would be thus imposed if the original purchaser had been injured by reason of the consumption thereof — since the warranty extended to every consumer is that the food is fit for the purpose for which it was intended, namely, for human consumption." (Italics supplied.)
The biggest roadblock to the actual use in New York of the third-party beneficiary rule (by its name) in breach of warranty cases, has been due to the claim that the Gimenez case (264 N.Y. 390 , supra) is authority for the proposition that the third-party beneficiary doctrine is not applicable in breach of warranty cases. And so the courts have continually refused to employ the rule as a means of circumventing the strict privity doctrine of the Chysky case (235 N.Y. 468 , supra) because the court said (Gimenez v. Great Atlantic & Pacific Tea Co., supra, p. 395): "the courts have never gone so far as to recognize warranties for the benefit of third persons."
True the court made this statement. But, immediately preceding the above sentence, we do find the following: "We do not overlook the fact that a sort of third party beneficiary rule might be invoked to give the husband a cause of action in contract. The answer to that contention is that".
In face of the admission that the third-party beneficiary rule may be applicable, should the answer given continue to act as the authority to deter and hamstring the courts from adopting the rule in the appropriate case?
In sustaining the defense argument that "when the wife is the purchaser, the warranty right vests in her; and not in the husband, and therefore, the husband has no cause of action for breach of warranty," the court said (p. 393): "In Gearing v. Berkson [223 Mass. 257], the court said that the cause of action for breach of warranty rests on contractual relations and hence there is no warranty except to the person to whom the sale is made. The same rule is laid down in this court in Chysky v. Drake Bros. Co. (235 N.Y. 468), which held in substance that
For a dynamic critical answer to the Gearing (223 Mass. 257, supra), Gimenez (264 N.Y. 390, supra) and Chysky (235 N.Y. 468, supra) cases, see article (NACCA L. J. Vol. 21) by Prof. Thomas F. Lambert, Jr. (who succeeded Dean Roscoe Pound of Harvard as editor-in-chief of the NACCA L. J.) (pp. 420-421): "But stubborn insistence on the arbitrary privity rule may lead to grotesquely indefensible results, as where the butcher shop which sells impure pork chops is held to warrant them to the husband who buys them, but not to the wife, child, relative, or social guest who consumes them. This shuddering result occurred in Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785 (1916) (which forms the basis for the Chysky and Gimenez decisions). It is a melancholy state of affairs to witness courts more preoccupied with privity than consumer protection."
Prof. Lambert suggests that logically the courts might usefully invoke the Blessington case (305 N.Y. 140, supra) as a basis for recognizing an implied warranty running to a third-party beneficiary, and continues (p. 421): "A court's capacity to do justice in the field of products liability can be withered by an overzealous attachment to the archaic privity rule * * * a court nominally committed to the talismanic privity rule can judiciously avoid its blighting effects and, by admirable resourcefulness, invoke the implied warranty mechanism (so that the warranty right is extended to the third party beneficiary) * * *. See also 20 NACCA Law Journal 291-302; 17 id. 375-376; 16 id. 352-356." `The responsibility to keep the law straight is a high one. It should not be reduced to the mean task of keeping it straight and narrow.' Traynor, `Some Open Questions on the Work of State Appellate Courts,' 24 U. Chi. L. Rev. 211, 219 (1957)."
It might not be amiss to point out that Harry Melick, the attorney who successfully presented the defense arguments to the Court of Appeals in behalf of A. & P. in the Gimenez case (264 N.Y. 390, supra), must have had mental reservations. Or perhaps, in convincing the court, he most likely unconvinced himself. At any rate, he undoubtedly must have regretted his contribution to the enfeeblement of consumer protection, for he made amends for his `misdeeds' by spending two years of research, immediately following the decision, in order to write
THE PUBLIC POLICY FACTOR.
The assault upon the citadel of privity now continues with renewed effort because its foundations are weak. The fortress built around the privity structure is weakened because the beams rest on technicality only. Reason outranks technicality, particularly where the rights of human beings are concerned and where public policy and the demands of social justice require it.
Great dissatisfaction with the strict privity doctrine has been frequently expressed by modern legal educators and writers. They view the problem as essentially an enterprise liability, and that the ultimate consumer in food cases should not only have the right of suing the retailer for breach of warranty but should also have that right against the manufacturer as the guarantor of the fitness and wholesomeness of its product when it is used for the purpose and in the manner intended. In no other way, they argue, can a fair and reasonable measure of security be obtained for the public at large. Courts throughout the land have endeavored to extend the buyer's protection under classic warranty law to the nonbuyer consumer by either abandoning or liberally construing the privity requirement, some being on "public policy", some on "breach of duty", others on "social justice". and still others on the third-party beneficiary rule. Again, it is the food cases with their constant stress upon the promotion of public health which have led the way. (Melick, The Sale of Food and Drink; Perkins, Unwholesome Food as a Source of Liability, 5 Iowa L. Bull. 86; Jeanblanc, Manufacturers Liability to Persons Other Than Their Immediate Vendees, 24 Va. L. Rev. 134; Llewellyn, Warranty of Quality and Society, 36 Col. L. Rev. 699; James, Products Liability, 34 Texas L. Rev. 192; 4 Iowa L. Bull. 606; 19 N. C. L. Rev. 551; 3 Syracuse L. Rev. 106; 43 Calif. L. Rev. 614; Dickerson, Products Liability and the Food Consumer, p. 65; 42 Harv. L. Rev. 414; 46 Harv. L. Rev.; 52 Harv. L. Rev. 328; 23 Calif. L. Rev. 621; Eisenbeiss v. Payne, 42 Ariz. 262; Davis v. Van Camp Packing Co., 189 Iowa 775, supra; Parks v. Yost Pie Co., 93 Kan. 334; Challis v. Hartloff, 136 Kan. 823, supra; Hertzler v. Monshum, 228 Mich. 416, supra; Bark v. Dixson, 115 Minn. 172; Coca-Cola Bottling Works v. Lyons, 145 Miss. 876; Curtiss Candy Co. v. Johnson, 163 Miss. 426, supra; Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864;
In Davis v. Van Camp Packing Co. (189 Iowa 775, 800-801, supra) the court stressed "the sacredness of human life" and treated the warranty as a representation imposed by law for the benefit of the public: "We make a distinction between food products which are canned, bottled, or wrapped in such a way that the contents and the condition thereof may not be known to the purchaser until opened for use by the consumer, and products which are not so put up, and the condition of which is observable * * * We are of opinion that the duty of a manufacturer to see to it that food products put out by him are wholesome, and the implied warranty that such products are fit for use, run with the sale, and to the public, for the benefit of the consumer, rather than to the wholesaler or retailer, and that the question of privity of contract in sales is not controlling, and does not apply in such a case * * * Or it may be treated as a representation or a warranty that, because of the sacredness of human life, food products so put out are wholesome. In either event, a failure in this respect is a breach of duty and a breach of warranty, and a plaintiff suing may rely on either or both" (Italics supplied.)
The learned opinion by Chief Justice ALEXANDER in Decker & Sons v. Capps (139 Tex. 609 ), reveals the adoption of a broad public policy viewpoint. The court not only discarded "privity", but "negligence" as well. It evolved the term "warranty of purity". A consumer, who purchased contaminated food from a retailer, was permitted to recover in breach of warranty against the manufacturer. The court held there is a so-called implied "warranty of purity" (p. 612) which is imposed by operation of law as a matter of "public policy" of protecting human health and life. The court said there is no merit in denying relief to a consumer against a manufacturer on the ground of lack of direct contractual relation because public policy in the sale of food intended for human consumption demands it. Cases in many States are cited showing that "There is a growing tendency, however, to discard the requirement of privity and to hold the manufacturer liable directly to the ultimate consumer" (p. 617).
In an action for breach of warranty, an exception is made in the case of medicine and foodstuffs, and the manufacturer is held to warrant to the ultimate consumer that the article is fit for human consumption (Rachlin v. Libby-Owens-Ford Glass Co., 96 F.2d 597, 600).
In Hertzler v. Manshum (228 Mich. 416, 422-423, supra) the court said: "The ultimate contemplated destination of wheat flour is human consumption. The manufacturer knows this and owes a duty to the ultimate consumer of his product to guard against poison therein, and when he markets it he impliedly warrants it free from poison and the purchaser thereof, for consumption, has a right to and must, of necessity, rely upon such implied warranty, and such duty, represented as performed and relied upon as having been performed, bring the maker and consumer of such food product into privity, and for an injury arising out of a breach of such duty, impliedly warranted as performed, the sufferer may reach the one in fact inflicting the injury. The implied warranty, so-called, reaching from the manufacturer of food stuffs to the ultimate purchaser for immediate consumption is in the nature of a representation".
Some cases have imposed the absolute liability of a warrantor on a manufacturer in favor of the ultimate purchaser, where food has been sold to a subpurchaser (Dothan Chero-Cola Bottling Co. v. Weeks, 16 Ala. App. 639; Davis v. Van Camp Packing Co., 189 Iowa 775, supra; Parks v. Yost Pie Co., 93 Kan. 334, supra; Ward v. Morehead City Seafood Co., 171 N.C. 33, supra; Catani v. Swift & Co., 251 Pa. 52; Flessher v. Carstens Packing Co., 93 Wn. 48, supra).
The Illinois and Iowa courts approved the statement of the Supreme Court of Tennessee in Boyd v. Cola Cola Bottling Works (132 Tenn. 23, 30, supra) that "Upon whatever ground the liability of such a manufacturer to the ultimate consumer is placed, the result is eminently satisfactory, conducive to public welfare, and one which we approve."
In Graham v. Bottenfield's, Inc. (176 Kan. 68 ), privity was removed as a factor in the sale of a hair preparation, on the ground that public policy is the basic foundation for the imposition of liability in such a case as well as in food cases,
For other cases employing the public policy factor to discard privity, see Blanton v. Cudahy Packing Co. (154 Fla. 872); Madouros v. Kansas City Coca Cola Bottling Co. (230 Mo. App. 275); McNicholas v. Continental Baking Co. (112 S.W.2d 849 [Mo]); Helms v. General Baking Co. (164 S.W.2d 150 [Mo.]); Coca Cola Bottling Co. v. Enas (164 S.W.2d 855 [Tex.]); Williams v. Campbell Soup Co. (80 F.Supp. 865); Rainwater v. Hattiesburg Coca-Cola Bottling Co. (131 Miss. 315, supra); Griffin v. Asbury (196 Okla. 484); Nelson v. West Coast Dairy Co. (5 Wn.2d 284); Baum v. Murray (23 Wn.2d 890); Bahlman v. Hudson Motor Car Co. (290 Mich. 683); Baxter v. Ford Motor Co. (179 Wn. 123).
Public policy and the sacredness of human life demand that the warranty right of the ultimate consumer be extended against the manufacturer, particularly in the case of sealed food and drug products. The requirements of privity are satisfied by today's commercial advertising, printed labels and merchandising methods wherein the dealer, in acting as the distributor of the manufacturer's product for the purpose of resale to the public, may be rightly considered under the circumstances to be the manufacturer's agent for the purpose of warranting the fitness and wholesomeness of the product. The manufacturer's goal, in marketing a product, is the ultimate consumer. From the very moment the manufacturer puts the product on the market, he makes a tacit representation through his distributors aimed squarely at "Joe Doakes", the man on the street, that the product is fit and wholesome. Therewith is privity supplied. The warranty and representation is not made only to the dealer and does not stop there. The contract between the manufacturer and the dealer that the food be fit for human consumption is made for the benefit of a third party — not only the purchaser but the ultimate consumer. It continues from the time of marketing until the process of reaching the ultimate consumer through merchandising channels is attained, the retailer merely acting as a conduit.
To deprive the infants of the right to recover on the ground that they were not the "buyers" because they did not pay for the food or furnish their mother with the money to make the purchase, or that the mother did not specifically disclose to the retailer that she was making the food purchase for the use or
We must correct errors in the law and we must make those recognized and accepted changes with the times which are substantiated by reason and experience. Reason outranks technicality. Public welfare and human rights are far more important than a tenacious adherence to unsound decisions of the past, especially when outmoded or where reasons for their existence are nonexistent today. Faced with a general principle or rule, "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." (Mazetti v. Armour & Co., 75 Wn. 622, 629, supra.) (Italics supplied.)
In Boyce v. Greeley Square Hotel Co. (228 N.Y. 106, 110) (Judge CARDOZO sitting), the court held that where frequently a given state of facts will sustain recovery on more than one theory, if the court be satisfied from the evidence that the plaintiff be entitled to recover "It is not necessary to determine with exact discrimination and accuracy whether the right of action in the case at bar is based upon a violation of a contract between the parties created through implication of the law or upon the infraction of an obligation or duty imposed by the law upon the defendant."
The privity "bugaboo", historically unsound, should be permanently discarded. Based on technicality and contrary to reason it will otherwise continue to serve as a substitute for and an escape from manufacturer's products liability insurance, by furnishing immunity from liability (43 Calif. L. Rev. 614, 629; 3 Syracuse L. Rev. 259, 263; 19 N. C. L. Rev. 551, 565; Dickerson, Products Liability and the Food Consumer, pp. 65-68; 2 Vand. L. Rev. 675).
Whether the 1923 Chysky case (235 N.Y. 468, supra) is ready to join the ghosts of Drobner v. Peters (232 N.Y. 220; see Woods v. Lancet, 303 N.Y. 349) and Schloendorff v. Society of New York Hosp. (211 N.Y. 125; see Berg v. New York Soc. for Relief of Ruptured & Crippled, 1 N.Y.2d 499; Becker v. City of New York, 2 N.Y.2d 226) is for the ultimate disposition by the Court of Appeals. And it remains to be seen whether Dean Prosser's 1955 suggestion (9 Ark. L. Rev. 81, 88) comes true: "What we seem to be moving toward in the aftermath of the MacPherson case (MacPherson v. Buick Motor Co., 217 N.Y. 382, supra) is that any person who makes a contract with anybody may be liable for injuries to person or property resulting from defective performance". (Italics supplied.)
"Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day" said Judge CARDOZO in MacPherson v. Buick Motor Co., 217 N.Y. 382, 391, supra). (See, also, the reference to "stare decisis" in Judge CARDOZO'S address to the N. Y. State Bar Assn., Jan. 22, 1932 Report, N. Y. State Bar Assn., 1932, pp. 290, 294.) To quote Justice HOLMES. "It is revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." (The Path of the Law, 10 Harv. L. Rev. 457, 469.)
The sagacious words of Judge DESMOND, speaking for the Court of Appeals in Woods v. Laneet (303 N.Y. 349, 354-355, supra) are strikingly appropriate: "Our court said, long ago, that it had not only the right, but the duty to re-examine a question where justice demands it (citing cases) * * * it is the duty of the court to bring the law into accordance with present day standards of wisdom and justice rather than `with some outworn and antiquated rule of the past'. * * * We act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice."
The question is shall we enshrine the privity "mis-concept" and erect a tablet of justice in its honor, or shall we put it to rest in its permanent resting place — never to be resurrected? To deny recovery here to the infants because the mother was the purchaser — the infants did not pay for the food — would be a gross miscarriage of justice. The archaic notion that privity is
Factually, the issue here was whether foreign deleterious substance was present in the jar of jam when it was opened and whether the three plaintiffs were injured thereby. Although the stipulation conceded the presence of "foreign substance", the defendant disputed the substance was "worms". Whether they were live or dead does not matter if they caused harm. The breach of warranty is established if it is proven that the worms were inside the jar when it was purchased. The court finds that the plaintiffs have sustained the burden of proof by a fair preponderance of the credible evidence and adjudges that each of the three plaintiffs are entitled to judgment in the sum of $500 against the defendant.