Opinion
August 1, 1927.
____ ____, for the plaintiff.
____ ____, for the defendant.
This action was brought by the plaintiff to recover damages alleged to have been sustained by her by reason of having partaken of milk that was in an unwholesome condition. The action was tried and a verdict rendered by the jury in favor of the plaintiff, whereupon the defendant moved to set the verdict aside and to dismiss the complaint. The plaintiff's case was tried solely on the theory of a breach of an implied warranty. The only question involved is whether or not an implied warranty ran to the plaintiff. The plaintiff testified that she bought and paid for the milk, which was for the sole use of herself and infant child. She lived with her husband. The record is void of any testimony to show whether the plaintiff was self-supporting or whether she depended on her husband for support. In the absence of any evidence to the contrary, there is the presumption that the moral and legal obligation on the part of the husband to support his wife and family is being carried out. The fact that the plaintiff herself actually paid for the milk does not overcome the presumption of the liability on the part of the husband to support her and the infant child, and, if that is so, then she was merely acting as agent for her husband in the purchase of the milk, and the implied warranty, being in itself in the nature of a contract of personal indemnity with the original purchaser, is something of which the plaintiff cannot avail herself. The question of the negligence on the part of the defendant in supplying milk that was unfit for human consumption was not litigated at the trial. The difficulty with the case on the theory of an implied warranty is that there was no contractual relationship, and hence no implied warranty between the plaintiff and the defendant.
Motion to set aside verdict is granted, and complaint dismissed. Thirty days' stay and sixty days to make a case. Order signed.