Opinion
Submitted October 1, 1940 —
Decided November 29, 1940.
1. Implied warranty of fitness of purchased article runs to the purchaser and not to her minor child.
2. Whether parents, who properly sued for damages suffered by them by reason of expenses incurred in and about cure of minor child by reason of breach of implied warranty of fitness of purchased article, were entitled thereto was jury question under proper instruction.
On appeal from the Second District Court of the city of Paterson.
Before Justices TRENCHARD, BODINE and PORTER.
For the plaintiffs-appellants, David Cohn and Milton Goldinger.
For the defendants-respondents, Edwards, Smith Dawson ( Forrest S. Smith and Allen C. Mathias).
The appeal is from a verdict directed in favor of the defendant. The action was brought by the infant plaintiff in her right, and by her parents in their right, to recover damages suffered by reason of the infant plaintiff's illness, which the jury could have found resulted from drinking deleterious pineapple juice purchased in a sealed can at defendant's store under an implied warranty of fitness. N.J.S.A. 46:30-21. The purchase was made by the mother presumably, under agency from her husband, to provide the family table. The warranty ran to the purchaser and not to the minor child. Brussels v. Grand Union Tea Co., 14 N.J. Mis. R. 751; Schlosser v. Goldberg, 123 N.J.L. 470; Griffin, v. James Butler Grocery Co., 108 Id. 92.
This is not a case of enforcing a manufacturer's duty to exercise reasonable care towards the ultimate consumer as in Cassini v. Curtis Candy Co., 113 N.J.L. 91 . See, also, Cornelius v. B. Filippone Co., 119 Id. 540 .
The parents, however, properly sued for damages suffered by them by reason of expenses incurred by them in and about the cure of their child by reason of the breach of the implied warranty of fitness. That presented a question for the jury under proper instruction. Wolcott, Johnson Co. v. Mount, 36 N.J.L. 262; affirmed, 38 Id. 496.
Judgment is reversed.