Martin v. Great Atlantic & Pacific Tea Co.
192 S.W.2d 201
Jan. 25, 1946.
ACTION: Reversed with directions.




Appeal from Circuit Court, Knox County; Flem D. Sampson, Judge. Action by A. L. Martin against the Great Atlantic & Pacific Tea Company for breach of an implied warranty. From a judgment dismissing the petition, plaintiff appeals.

THOMAS, Justice. The defendant, the Great Atlantic and Pacific Tea Company, operates a great number of retail grocery stores throughout the country, including this Commonwealth, one of which is located in Corbin, Kentucky.

On April 1, 1944, the appellant, A. L. Martin, as a customer of appellee's retail store in Corbin, purchased from it a sealed package of 'chili con carne' to be consumed as food by himself and family. The package was opened by plaintiff after his arrival at his home, and a part of its contents was consumed by his family, including himself. According to the averments of the petition plaintiff and the other consumers of the purchased package became exceedingly nauseated, sustaining some pain, mental anguish and other damaging physical effects. The contents of the package were then emptied and in the bottom of it, as alleged, there was found a part of a leg of a dead rat which poisoned the entire contents and rendered it unwholesome, unfit, dangerous and not suitable for the purpose for which it was bought.

Plaintiff filed this action in the Knox circuit court, the county of his residence, against defendant alleging in more elaborate terms his purchase of the named product, its consumption by him and the members of his family, and the alleged resultant damages to himself personally which he fixed at the sum of $2,500, and for which he prayed judgment against defendant.

Defendant denied in general terms the material averments of the petition, and in other paragraphs it pleaded that it bought the sealed package sold to plaintiff from its manufacturer and wholesaler, Emmart Packing Company, located and operating its packing plant in the city of Louisville, Kentucky; that it bought large quantities of the same article, as so contained in sealed packages, and that if the one sold to plaintiff was contaminated and rendered unfit for human consumption-- in the manner and for the cause stated in the petition--it (defendant) possessed no knowledge of such conditions and which could not be discovered by it except by opening the package and examining its contents, but which would destroy its salability to its customers. Before filing its answer defendant filed a general demurrer to plaintiff's petition and without waiving it answer was filed. Plaintiff demurred to the answer-- except the paragraph denying in general terms the material allegations of the petition--and without waiving it filed its reply, which was a denial in general terms of the affirmative allegations in the answer. The case was then submitted to the court on the demurrers which each party had filed, and it sustained defendant's demurrer to the petition, with exceptions, and overruled plaintiff's demurrer to the affirmative allegations in the answer with exceptions. It then dismissed plaintiff's petition, to reverse which he prosecutes this appeal.

It was held that the plaintiff could not recover on an implied warranty made by the selling retailer when the defect in the article sought was hidden from him as is true in this case; but it was held that an action for negligence might be maintained against the retailer by his customer for any such defects, when the retailer had an opportunity to inspect the article sold by him, but when it was concealed by being encased in a sealed package by a manufacturer, he, the retailer, had no better opportunity for such inspection, or for the acquisition of knowledge as to any defects than did the purchaser at the retail sale.

In the instant case defendant is clearly liable under subsection (1) of our Uniform Sales Act, supra. It was known to defendant (the seller) the particular purpose for which the package of chili con carne was purchased, which was to be consumed as food. It is likewise indisputably apparent that the buyer relied on the seller's skill and judgment as to the suitability of the article purchased as an article to be consumed as food. When so, and the purchase is in sealed packages, construed the Uniform Sales Act as creating an implied warranty by the seller, though a retailer, that the purchased article is suitable for the purpose intended, and which is especially so when the transaction involves articles of food.

It therefore follows that the court erred in sustaining the demurrer to appellant's petition, and likewise erred in overruling his demurrer to the affirmative paragraphs of defendant's answer, and in finally dismissing plaintiff's petition, because of which the judgment is reversed with directions to set it aside and for proceedings not inconsistent with this opinion.

Ky.,1946

MARTIN v. GREAT ATLANTIC & PACIFIC TEA CO.

192 S.W.2d 201, 301 Ky. 429





     

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