Judges: CHAPMAN, J.
Attorneys: Carson, Petteway Stembler, for Plaintiff in Error;
McKay, Dixon DeJarnette and Evans, Mershon Sawyer, for Defendant in Error.
Filed: Sep. 27, 1940
Latest Update: Mar. 02, 2020
Summary: This case is before the court on writ of error to a final judgment for the defendant below entered by the Circuit Court of Dade County, Florida. The declaration sought recovery on two counts: (a) upon a breach of an implied warranty of fitness for the use and purposes intended; (b) upon the breach of the express warranty of wholesomeness. On demurrer to each count of the declaration it was contended that the plaintiff, as a matter of law, had no cause of action against the retailer of the articl
Summary: This case is before the court on writ of error to a final judgment for the defendant below entered by the Circuit Court of Dade County, Florida. The declaration sought recovery on two counts: (a) upon a breach of an implied warranty of fitness for the use and purposes intended; (b) upon the breach of the express warranty of wholesomeness. On demurrer to each count of the declaration it was contended that the plaintiff, as a matter of law, had no cause of action against the retailer of the article..
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I must dissent upon the authority of the following cases: Woolworth v. Wilson, 74 F.2d 439; Travis v. L. N. R. Co., 183 Ala. 415, 62 So. 851, 854; Linker v. Quaker Oats Co.,11 F. Supp. 794; Kirkland v. Great Atlantic Pacific Tea Co. (Ala.), 171 So. 735; Dothan v. Chero-Cola Bottling Co., 16 Ala. App. 639, 80 So. 734; Howard v. Jacob's Pharmacy (Ga.),189 S.E. 373; Scruggins v. Jones (Ky.), 269 S.W. 743; Kroger Grocery Co. v. Lewelling (Miss.) 145 So. 726; Lipari v. National Grocery Co., 198 A. 393; Aronovitz v. Woolworth Co.,236 N.Y. Supp. 133; West v. Emanuel (Pa.), 47 A. 965; Ellis v. Montgomery Crawford (S.C.), 200 S.E. 82; Pennington v. Cranberry Fuel Co., 186 S.E. 610. There is a later New York case, Foley v. Liggett Myers, 241 N.Y. Supp., which is at variance with the above cited Aronovitz case, but this departure appears front the opinion to he due to a statute, Section 96 of the New York Personal Property Law. It seems front the above cases that negligence and not warranty is the true ground of liability in a case such as this.
