Appeal, No. 121, Jan. T., 1964, from judgment of Court of Common Pleas of Cameron County, May T., 1960, No. 37, in case of Frederick W. Yentzer v. Taylor Wine Company, Inc. Judgment reversed.
Edwin W. Tompkins, II, and Tompkins & Tompkins, for appellant.
A. Grant Walker, John H. Cartwright, and Gifford, Graham, MacDonald & Illig, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE COHEN
In this action of assumpsit, plaintiff appeals from the judgment of the court below sustaining preliminary objections in the nature of a demurrer and dismissing the complaint.
The facts pleaded may be summarized as follows: Plaintiff, employed as manager of a hotel, personally
purchased from a state liquor store, on behalf of his employer, four bottles of champagne produced and bottled by the defendant-corporation. The wine was intended for use and consumption by guests of the hotel. While plaintiff and other employees were preparing to serve the wine, a cap from one of the bottles suddenly ejected, propelled through the air and hit plaintiff in the eye, resulting in serious injury. This suit followed, based upon an alleged breach of the following implied warranties: (1) that the goods were adequately and safely packaged; (2) that the goods were fit for the ordinary purposes for which such goods were sold.
The lower court determined that our recent decision in Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575 (1963), controlled and dismissed the complaint. We do not think that the rigid construction we placed on a seller's warranty in Hochgertel should be extended to a situation such as this.
The Uniform Commercial Code, § 2-318, 12A P.S. § 2-318 reads as follows: "A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section."
Comment 3 to this section states: "Beyond this, the section is neutral and is not intended to enlarge or restrict the developing case law on whether the seller's warranties, given to his buyer who ...