{ "id": 8546645, "name": "FRANKLIN GILLISPIE, by His Guardian ad Litem, FLORENCE TROXLER, Plaintiff v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, Defendant v. THOMASVILLE COCA-COLA BOTTLING COMPANY, Third Party Defendant", "name_abbreviation": "Gillispie ex rel. Troxler v. Great Atlantic & Pacific Tea Co.", "decision_date": "1972-03-29", "docket_number": "No. 7222SC7", "first_page": "1", "last_page": "6", "citations": [ { "type": "official", "cite": "14 N.C. App. 1" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "211 N.Y.S. 2d 953", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "113 N.Y.S. 2d 436", "category": "reporters:state", "reporter": "N.Y.S.2d", "opinion_index": 0 }, { "cite": "280 App. Div. 253", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 5856770 ], "opinion_index": 0, "case_paths": [ "/ad/280/0253-01" ] }, { "cite": "63 A. 2d 24", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "361 Pa. 158", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 476363 ], "opinion_index": 0, "case_paths": [ "/pa/361/0158-01" ] }, { "cite": "65 N.E. 2d 305", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "319 Mass. 224", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 497483 ], "opinion_index": 0, "case_paths": [ "/mass/319/0224-01" ] }, { "cite": "174 S.E. 2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "518" } ], "opinion_index": 0 }, { "cite": "276 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563141 ], "pin_cites": [ { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0620-01" ] }, { "cite": "46 N.C.L. Rev. 451", "category": "journals:journal", "reporter": "N.C. L. Rev.", "opinion_index": 0 }, { "cite": "119 S.E. 2d 928", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 768", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628161 ], "opinion_index": 0, "case_paths": [ "/nc/254/0768-01" ] } ], "analysis": { "cardinality": 556, "char_count": 12357, "ocr_confidence": 0.545, "pagerank": { "raw": 3.1147220170694276e-07, "percentile": 0.8602310404969556 }, "sha256": "79c9760e9785e80ac0c74321ff1527e3211d088d63540185e546bfd2e4306a98", "simhash": "1:7513912d50317efe", "word_count": 2076 }, "last_updated": "2023-07-14T22:58:48.650385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Britt concur." ], "parties": [ "FRANKLIN GILLISPIE, by His Guardian ad Litem, FLORENCE TROXLER, Plaintiff v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, Defendant v. THOMASVILLE COCA-COLA BOTTLING COMPANY, Third Party Defendant" ], "opinions": [ { "text": "GRAHAM, Judge.\nPlaintiff bases his claim solely upon breach of implied warranty.\nThe evidence tends to show that plaintiff handled the bottles of Sprite normally from the time he took possession of them until they exploded. There is no evidence presently before us which would indicate that plaintiff\u2019s conduct contributed in any way to the explosions. Therefore, the jury would be justified in finding that the bottles exploded because they were inadequate for the purpose they were intended; namely, as containers of the Sprite soft drink.\nBefore adoption of the Uniform Commercial Code (G.S. 25-2-101 et seq,, effective 1 July 1967), the law in this jurisdiction was that in an implied warranty of fitness did not extend to a container in which a product came from the producer. Prince v. Smith, 254 N.C. 768, 119 S.E. 2d 928. The first question before us is whether an implied warranty of fitness has now been extended by the Uniform Commercial Code to include a product\u2019s container such as the one involved here. We hold that it has.\nG.S. 25-2-314 provides in pertinent part:\n\u201c(1) Unless excluded or modified (\u00a7 25-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.\n(2) Goods to be merchantable must be at least such as . . .\n(c) are fit for the ordinary purposes for which such goods are used; and . . .\n(e) are adequately contained, packaged, and labeled as the agreement may require. ...\u201d\nIn the official comment following this section it is stated:\n\u201c(e) applies only where the nature of the goods and of the transaction requires a certain type of container, package or label.\u201d\nThe nature of bottled drinks, such as Sprite, requires a container which is adequate to contain the drink without breaking or exploding when handled with ordinary care. Another way of putting it is that under this section, soft drinks are not merchantable if inadequately contained. If they are sold in a container which is inadequate, the seller has breached his implied warranty of merchantability and he is liable for personal injury proximately caused by this breach. The fact that it is the container, rather than the product inside, which causes injury, does not make the injury any less a result of the seller\u2019s breach of warranty.\nA second question presented is whether a sale had taken place at the time the bottles allegedly exploded. Warranties arise under the Uniform Commercial Code only upon a sale of goods. 46 N.C.L. Rev. 451. \u201cA \u2018sale\u2019 consists in the passing of title from the seller to the buyer for a price (\u00a7 25-2-401).\u201d G.S. 25-2-106(1). \u201cUnless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading.\u201d G.S. 25-2-401(2).\nIn the case of Insurance Co. v. Hayes, 276 N.C. 620, 632, 174 S.E. 2d 511, 518, it was noted: \u201cThe most basic departure from previous law which is found in the Uniform Commercial Code is the abandonment of the concept of title as a tool for resolving sales problems. This departure is evidenced by G.S. 25-2-401 which, in effect, holds that title to goods passes from the seller to the buyer when the goods are delivered to the buyer.\u201d\nVarious cases decided before the adoption of the Uniform Commercial Code in the respective jurisdictions held that a sale of an article in a self-service store is not completed until payment has been made. Lasky v. Economy Grocery Stores, 319 Mass. 224, 65 N.E. 2d 305; Loch v. Confair, 361 Pa. 158, 63 A. 2d 24; Day v. Grand Union Co., 280 App. Div. 253, 113 N.Y.S. 2d 436.\nThe above cases generally followed the prevailing rule that where a sale is shown to be for cash, title does not vest in the buyer until the seller has received payment in cash. Cases reaching contrary results include: Sanchez-Lopez v. Fedco Food Corp., 211 N.Y.S. 2d 953; Lucchesi v. H. C. Bohack Co., Inc., 8 U.C.C. Rep. 326.\nWe are of the opinion that under G.S. 25-2-401(2) the time of payment is not determinative of the question of when a sale takes place. If there has been a completed delivery by the seller, the sale has been consummated and implied warranties arise under G.S. 25-2-314.\nThe presence of the drinks on the shelves in defendant\u2019s self-service store constituted an offer for sale and delivery at a stated price. If plaintiff took the drinks into his possession with the intention of paying for them at the cashier\u2019s counter, there was no further act of delivery necessary on the part of the seller. All that remained was for plaintiff to pay for the drinks \u2014 an act delayed until he reached the cashier\u2019s counter primarily for the convenience of the seller.\nDefendant calls attention to the custom in self-service stores which permits a customer to return goods to the shelf without liability if he changes his mind about a purchase before reaching the checkout counter. However, even a right to return delivered goods to the seller does not necessarily delay passage of the title until that right has expired. G.S. 25-2-401 (4) provides: \u201cA rejection or other refusal by the buyer to receive or retain the goods, whether or not justified, or a justified revocation of acceptance revests title to the goods in the seller.\u201d The result is that when a purchaser in a self-service store changes his mind and returns to the shelf a product which he has picked up with the intention of buying, title is revested in the seller. However, as long as the purchaser has the product in his possession, intending to pay for it, he has title to the product. The seller\u2019s interest at that point is not \u201ctitle\u201d but a security interest to enforce payment. \u201cAny retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest.\u201d G.S. 25-2-401(1).\nThe evidence presented would support a jury finding that plaintiff purchased the Sprite drinks by taking them into his possession with the intention of paying for them. Should the jury so find, the questions would then become: Was the warranty of implied merchantability breached by defendant, and if so, did the breach proximately cause the injuries sustained by the plaintiff ? We are of the opinion the evidence is sufficient to go to the jury on these questions.\nReversed.\nJudges Campbell and Britt concur.", "type": "majority", "author": "GRAHAM, Judge." } ], "attorneys": [ "Hugh B. Rogers, Jr., and Charles F. Lambeth, Jr., for plaintiff appellant.", "Walser, Brinkley, Walser & McGirt by Walter F. Brinkley for defendant appellee." ], "corrections": "", "head_matter": "FRANKLIN GILLISPIE, by His Guardian ad Litem, FLORENCE TROXLER, Plaintiff v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, Defendant v. THOMASVILLE COCA-COLA BOTTLING COMPANY, Third Party Defendant\nNo. 7222SC7\n(Filed 29 March 1972)\n1. Food \u00a7 2; Sales \u00a7 17 \u2014 explosion of soft drink bottle \u2014 fitness for intended purpose\nIn this action to recover for breach of warranty for personal injuries sustained when two soft drink bottles allegedly exploded as they were being carried by plaintiff to the checkout counter in defendant\u2019s self-service store, the jury would be justified in finding that the bottles exploded because they were inadequate for the purpose for which they were intended \u2014 namely, as containers of a soft drink\u2014 where plaintiff\u2019s evidence tended to show that he handled the bottles normally from the time he took possession of them until they exploded, and there is nothing in plaintiff\u2019s evidence indicating that his conduct contributed to the explosions.\n2. Food \u00a7 2; Sales \u00a7 6; Uniform Commercial Code \u00a7 15 \u2014 implied warranty of fitness \u2014 applicability to container\nBefore adoption of the Uniform Commercial Code, an implied warranty of fitness did not extend to a container in which a product came from the producer; however, an implied warranty of fitness has now been extended by the Uniform Commercial Code to include a product\u2019s container. G.S. 25-2-314.\n3. Food \u00a7 2; Sales \u00a7 6; Uniform Commercial Code \u00a7 15 \u2014 soft drink bottle \u2014 implied warranty of merchantability \u2014 liability of seller for personal injuries\nIf soft drinks are sold in a container which is inadequate, the seller has breached his implied warranty of merchantability and is liable for personal injury proximately caused by this breach.\n4. Sales \u00a7 6; Uniform Commercial Code \u00a7 15 \u2014 warranties \u2014 sale of goods\nWarranties arise under the Uniform Commercial Code only upon a sale of goods.\n5. Sales \u00a7\u00a7 1, 6; Uniform Commercial Code \u00a7 15 \u2014 when sale occurs \u2014 delivery \u2014 payment \u2014 implied warranties\nUnder G.S. 25-2-401(2) the time of payment is not determinative of the question of when a sale takes place; if there has been a completed delivery by the seller, the sale has been consummated and implied warranties arise under G.S. 25-2-314.\n6. Sales \u00a7 1; Uniform Commercial Code \u00a7 11 \u2014 self-service store \u2014 when sale occurs\nThe presence of soft drinks on the shelves of a self-service store constituted an offer for sale and delivery at a stated price; a sale occurred within the meaning of the Uniform Commercial Code when the purchaser took the drinks into his possession with the intention of paying for them at the cashier\u2019s counter.\n7. Sales \u00a7 1; Uniform Commercial Code \u00a7 16\u2014 self-service store \u2014 purchaser\u2019s acquisition of title\nAs long as a purchaser in a self-service store has a product in his possession, intending to pay for it, he has title to the product, the seller\u2019s interest at that point not being \u201ctitle\u201d but a security interest to enforce payment; when the purchaser changes his mind and returns to the shelf a product which he has picked up with the intention of buying it, title is revested in the seller.\n8. Food \u00a7 2; Sales \u00a7 17; Uniform Commercial Code \u00a7 15 \u2014 exploding soft drink bottles \u2014 breach of warranty \u2014 action against seller\nIn this action to recover for breach of warranty for personal injuries sustained when two soft drink bottles allegedly exploded as they were being carried by plaintiff to the checkout counter in defendant\u2019s self-service store, plaintiff\u2019s evidence would support jury findings that plaintiff purchased the drinks by taking them into his possession with the intention of paying for them, that the warranty of implied merchantability of the bottles was breached by defendant, and that such breach proximately caused plaintiff\u2019s injuries.\nAppeal by plaintiff from Beal, Special Judge, May 1971 Civil Session of Superior Court held in Davidson County.\nCivil action to recover for personal injuries sustained by plaintiff when two bottles of Sprite allegedly exploded as they were being carried by him to the checkout counter in defendant\u2019s' self-service store.\nPlaintiff sued the original defendant for breach of warranty. Defendant answered, denied the essential allegations in the complaint, and alleged that the bottles broke as a result of coming in contact with the floor when plaintiff negligently fell or dropped them. Defendant also cross claimed against the third party manufacturer for indemnification in the event plaintiff recovered.\nAt pretrial conference the court ordered the issues between plaintiff and the original defendant tried separately from the issues' between the original defendant and the third party defendant.\nPlaintiff\u2019s evidence tended to show that he went to defendant\u2019s store to get a carton of Coca-Cola and a carton of Sprite bottle drinks. He picked up a carton of each and walked toward the checkout counter, carrying the carton of Sprite in his left hand and the carton of Coca-Cola in his right hand. He was walking directly to the checkout counter where he intended to pay for the drinks. When he reached a point about 20 to 25 feet from the shelf where he had picked up the drinks and about 10 feet from the checkout counter, two of the Sprite bottles exploded and plaintiff sustained a laceration to his left wrist.\nAt the conclusion of plaintiff\u2019s evidence defendant\u2019s motion for a directed verdict was allowed. Plaintiff excepted and appealed.\nHugh B. Rogers, Jr., and Charles F. Lambeth, Jr., for plaintiff appellant.\nWalser, Brinkley, Walser & McGirt by Walter F. Brinkley for defendant appellee." }, "file_name": "0001-01", "first_page_order": 27, "last_page_order": 32 }