Rose M. FOLEY and James S. Foley, her husband, Petitioners, v. WEAVER DRUGS, INC., a Florida corporation, Respondent, 177 So. 2d 221

ROBERTS, Justice. This cause is before the court on petition for certiorari to review a decision of the District Court of Appeal, Third District, Foley v. Weaver Drugs, Inc., 146 So.2d 631, upon an alleged conflict with a decision of the District Court of Appeal, Second District, in Canada Dry Bottling Co. of Florida, Inc. v. Shaw, Fla.App.1960, 118 So.2d 840. The decision of the Third District Court of Appeal brought here for review is an order of affirmance without opinion. So, we are confronted at the outset with the problem that has, since the decision in Lake v.

Lake, 103 So.2d 639, troubled this court when a per curiam decision without opinion of a district court is brought here for review, and whether or not such decision by the district court is reviewable here by conflict certiorari. The decision in the Lake case was rendered in 1958, not long after revised

Article V of our Constitution, F.S.A., became effective and before the new appellate court system created thereby was in “full swing.” It was there held that a “per curiam” decision without opinion of a district court of appeal would not be reviewed by this court upon petition for certiorari based on our “direct conflict” jurisdiction except in those rare cases where the “restricted examination required in proceedings in certiorari” revealed that “a conflict had arisen with resulting injustice to the immediate litigant.” This was some seven years ago; and it would seem that, by now, the jurisdictional question presented in such a case could be answered almost on a “cut-and-dried” basis.

Unfortunately, however, the question remains just as troublesome now as it was when the Lake case was decided. We have deemed it advisable, therefore, to take a new look at the problems inherent in the review by this court, on a “direct conflict” petition for certiorari, of a “per curiam” decision without opinion of a district court of appeal and to re-examine the decision in the Lake case as to this matter.

This court obviously formulated the policy with respect to such decisions, as in the Lake case, in the thought that such decisions would, for the most part, be confined to their traditional function of disposing of an appeal where the point of law involved “is so clear that it is not considered necessary to elaborate it by an extended discussion,” Newmons v.

Lake Worth Drainage District, Fla.1956, 87 So.2d 49, so that in most cases no actual conflict could he found to exist, and that to require this court to “dig into a record” to determine whether there was a conflict would, in effect, “give the petitioner an unauthorized second day in an appellate court when he had already had the one day the Constitution has given him,” South Florida Hospital Corp. v. McCrea, Fla.1960, 118 So.2d 25. In the almost seven years since Lake was decided, hundreds of decisions of the district courts of appeal have been brought here for review under our “direct conflict” jurisdiction.

Not an inconsiderable number of these have been “per curiam” decisions; and it goes without saying that, in each such case, the petitioner strongly urged that his was an exceptional case and thus entitled to review under the exception stated in the Lake decision, referred to above.

In each of such cases, some members of the court have examined the “record proper” — meaning the written record of the proceedings in the court under review except the report of the testimony— to determine the probable existence of a direct conflict and whether such conflict resulted in “injustice to the immediate litigant” sufficient to invoke the exercise of our power of review under the exception noted in the Lake case. In most cases the petition was simply denied without opinion —and, occasionally, with a dissenting opinion. See Donoghue v. Beeler, Fla.1963, 149 So.2d 534.

In others, we have found probable conflict and have remanded the cause to the appellate court with the request that an opinion be written setting forth the theory, reasoning and authorities-upon which it based its per curiam judgment. See Rosenthal v. Scott, Fla.1961, 131 So.2d 480; State v. Bruno, 104 So.2d 588. (A similar procedure was followed in-Snedeker v.

Vernmar, Ltd., Fla. 1962, 139 So.2d 682, where probable jurisdiction of a constitutional question, on an appeal directly from the trial court, was made to-appear.) We have also reviewed the “record proper” of a per curiam decision of an appellate court claimed to be in conflict with a. later decision of another court of appeal and have exercised our “conflict jurisdiction” to make uniform and harmonious the-law on the particular point involved in the two decisions. See Fidelity Construction. Co. v. Arthur J. Collins & Son, Inc., Fla-1961, 130 So.2d 612.

We there said: “There exists a prima facie conflict between the two decisions upon the pivotal point of law and on closely related facts, and one which is in this instance nonetheless direct because of the failure of the court to write an opinion in the Shirey case [Shirey v. Thompson, Fla.App., 115 So.2d 203] to substantiate its decision therein.” It appears, therefore, that in actual practice this court has not been relieved of any substantial portion of its workload by the policy announced in the Lake case respecting per curiam decisions.

The only practical distinction between our review of a. per curiam decision without opinion, and one that is supported by an opinion, is that in the former, we go directly to the “record proper” to determine probable jurisdiction, whereas in the latter case we-“examine the opinion [where the opinion disposes of the questions presented for review] upon which the district court of appeal decision is based, and if the opinion, on its face, shows the probable existence of a direct conflict between the two decisions, on the same point of law, the writ of cer-tiorari may issue and, after study, may be discharged, or the decision of the district court of appeal may be quashed or modified to the end that any direct conflict between the decisions on the same point of law may be reconciled.” [Bracketed portion supplied.) Seaboard Airline Railroad Co. v.

Branham, Fla. 1958, 104 So.2d 356. Nor is there any legal distinction between the effect of a per curiam decision without opinion, and one that is supported by an opinion, so that one is not entitled to and should not be given any more “verity” than the other. It is the judgment which constitutes the decision in litigated cases, and the opinion merely sets forth the reasons supporting the judgment, but where there is an opinion we have held that it becomes a part of the decision. See Zirin v. Charles Pfizer & Co., 128 So.2d 594, 596; and Seaboard Airline Railroad Co. v. Branham, supra.

As stated by the late and revered Justice Terrell in Newmons v. Lake Worth Drainage District, supra, 87 So.2d 49: “Traditionally it may be pointed out that a ‘per curiam’ is the opinion of the court in which the judges are all of one mind and the question involved is so clear that it is not considered necessary to elaborate it by an extended discussion. Such an opinion carries no less weight because of the nomenclature that designates it as such.” (Emphasis supplied.) and as pointed out by Mr. Justice Hob-son (Ret.) in his dissenting opinion in Donoghue v.

Beeler, supra, 149 So.2d, at page 536, in a number of cases considerable reliance has apparently been placed on such decisions, citing many decisions of ■this court and of the district courts of appeal in support of his statement. Our duty, as the “supervisory body in the judicial system” of this state, Ansin v.

Thurston, Fla.1958, 101 So.2d 808, 810, is to maintain ttniformity and harmony in the •decisions of our appellate courts, and to resolve the conflict created by a decision which is, “out of harmony with a prior decision of this Court or another Court of Appeal on the same point, thereby generating confusion and instability among the precedents.” Kyle v. Kyle, Fla.1962, 139 So.2d 885, 887. As stated in Lake v. Lake, supra, 103 So.2d 639, 642: “To remain stable, the law administered by the Supreme Court and the district courts cf appeal must he harmonious and uniform.

Were there not a central authority to keep it so it could happen that a district court of appeal would decide a given question of law one way and another district court of appeal another way, or one of them contrary to a former decision of the Supreme Court, through oversight or inadvertence, resulting in obvious confusion. To forestall any uncertainty that might derive from such situations, however infrequent, the provision was included in the amendment.” In State ex rel. Gordon, Relator v.

Trim-ble et al. (Judges constituting the Kansas City Court of Appeal), 318 Mo. 341, 300 S.W. 475, the Missouri court said: “Respondents [district court] did not discuss this rule, but their opinion approving the action of the trial court in sustaining the demurrer to the evidence offered in support of relator’s counterclaim necessarily involved such a ruling. In State ex rel. Boeving v.

Cox, 310 Mo. 367, 276 S.W. 869, we held that a Court of Appeals will be regarded as having decided a question consistently with the judgment rendered, whether or not it discussed the question in its opinion, if the decision of such question was necessarily involved and must have been decided consistently with the judgment before the conclusion reached could be logically and reasonably reached. “Respondents could not have affirmed the action of the trial court in sustaining the bank’s demurrer to the evidence on relator’s counterclaim without in fact holding that relator was not entitled to have his testimony of an agreement to repay taken as true and that he was not entitled to the benefit of every inference legitimately to be drawn therefrom. “Even if relator has not specifically assigned this conflict of opinion, it is our clear duty to notice it when its existence comes to our attention.

State ex rel. Missouri Gas & Electric Co. v. Trimble, 307 Mo. 536, loc. cit. 552, 271 S.W. 43; State ex rel. Shawhan v. Ellison, 273 Mo. 218, loc. cit. 228, 200 S.W. 1042; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, loc. cit. 101, 253 S.W. 1014.” In State of Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920, the Supreme Court of the United States said: “It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions.

But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities from the opinions in such cases. Only then can we ascertain whether or not our jurisdiction to review should be invoked. Only by that procedure can the responsibility for striking down or upholding state legislation be fairly placed.

For no other course assures that important federal issues, such as have been argued here, will reach this Court for adjudication; that state courts will not be the final arbiters of important issues under the federal constitution; and that we will not encroach on the constitutional jurisdiction of the states. This is not a mere technical rule nor a rule for our convenience. It touches the division of authority between state courts and this Court and is of equal importance to each.

Only by such explicitness can the highest courts of the states and this Court keep within the bounds of their respective jurisdictions.” Compare also Blackburn v. State of Alabama, 354 U.S. 393, 77 S.Ct. 1098, 1 L.Ed.2d 1423. Upon reconsideration of this entire matter, we have concluded that our appellate court decisions may be kept truly harmonious and uniform only by giving to the per curiam decisions without opinion of such courts the same “verity” that we give to their decisions supported by an opinion.

By subjecting such per curiam decisions to the same scrutiny on the “record proper”— that is, the written record of the proceedings in the court under review except the report of the testimony — as we give to the opinion upon which a district court of appeal decision is based, it may be concluded that a direct conflict exists which may forthwith be resolved by this court; or such scrutiny may show “the probable existence of a direct conflict between the two decisions”, Seaboard Airline Railroad Co. v.

Branham, supra, which can definitely be determined only by remanding the cause to the appellate court with the request that a supporting opinion be written. This is what we have, in fact, been doing heretofore. And we think the jurisprudence of this state will be best served by modifying the policy as to per curiam decisions announced in Lake v. Lake, supra.

We hereby do so, and we hold that this court may review by conflict certiorari a per curiam judgment of af-firmance without opinion where an examination of the record proper discloses that the legal effect of such per curiam affirmance is to create conflict with a decision of this court or another district court of appeal. Nor can we escape that in common parlance, an affirmance without opinion of a trial court by a district court is generally deemed to be an approval of the judgment of the trial court, and becomes a precedent, certainly, in the trial court rendering the judgment.

Probable jurisdiction having been made to appear, oral argument was heard on the questions of jurisdiction and merits, following which we invited the District Court of Appeal, Third District, to assist us by the preparing and adopting of an opinion setting forth the theory and reasoning upon which their Per Curiam Decision of Affirmance had been based, and relinquished to that court, temporarily, jurisdiction to do so. See Foley v. Weaver Drugs, Inc., Fla. 1964, 168 So.2d 749. Surprisingly, that court refused our request in their opinion filed February 16, 1965.

We have not yet extended our rule-making authority under

Section 3,

Article V, Constitution of Florida to the point of requiring an opinion in all decisions, as is required in some states, and thus we have no choice but to proceed with the matter without the benefit of the views of the District Court of Appeal. Having disposed of the jurisdictional question, we turn now to the merits of the instant petition for the writ of certiorari. The record shows that, on October 17, 1959, James S. Foley purchased from Weaver Drugs, Inc., the respondent here, at one of its retail stores, a bottle of Revlon reducing pills, better known as “Thin Down”, for use by his wife, Rose M. Foley.

The pills were packed in a glass bottle which closed with a screw-on top. The day after the purchase Mrs. Foley attempted to open the bottle by unscrewing the top when the bottle broke, fragmented, and one piece thereof lacerated her right wrist. Predicated upon these facts the Foleys instituted an action against Revlon, Inc., the manufacturer, and Weaver Drugs, Inc., the retail-seller, setting forth the facts and their respective damages, and alleging causes of action for negligence and for breach of- implied warranty of fitness and merchantability against each defendant.

Weaver Drugs, Inc. moved to dismiss and strike from the complaint every theory of action against it. Ruling on this motion was reserved by the court until pre-trial hearing. Defendant Weaver Drugs, Inc. then filed its answer to the complaint, denying the allegations of the complaint as they apply to it. At the pre-trial conference the court struck all allegations relating to implied warranty as against the defendant Weaver Drugs, Inc., the effect of which was to hold that neither of the plaintiffs had a cause of action against the retailer based on an implied warranty.

Thereafter, on motion of the defendant Weaver, the court granted a

summary judgment in favor of this defendant on the cause of action for negligence alleged by the plaintiffs. A motion for

summary judgment filed by the defendant Revlon, Inc., was denied.

On appeal by plaintiffs to the District Court of Appeal, Third District, the court affirmed, without opinion, the actions of the trial court with respect to the defendant Weaver Drugs, Inc., thereby holding, in effect, that neither of the plaintiffs had a cause of action against the defendant retailer for breach of an implied warranty of fitness and merchantability, and also holding, in effect, that they were not entitled to damages on the theory of negligence; but the action of the appellate court in this respect is not complained of in the instant proceeding.

As noted above, the plaintiffs have invoked this court’s “conflict jurisdiction” to review the adverse decision of the appellate court, alleging that it directly conflicts with a decision of the District Court of Appeal, Second District, in Canada Dry Bottling Co. of Florida, Inc. v. Shaw, Fla.App. 1960, 118 So.2d 840. In that case the injured party purchased a bottle of Canada Dry soda from a retail grocer, Food Fair, and took it home. Shortly thereafter, while attempting to open the bottle on a wall opener in the usual manner, it broke and injured her hand.

She filed suit against both the bottler, Canada Dry, and the retailer, Food Fair, on the theory of breach of implied warranty of fitness. A jury verdict and judgment against both defendants was appealed and was affirmed by the appellate court. The rationale of the appellate court’s decision was that the strict liability of the retailer for breach of an implied warranty of wholesomeness and fitness applicable to products sold for human consumption, sold by him should be extended to include the bottle, as well as its contents, in a case of this kind.

In so holding, the court said: “It is universally known that when one purchases a bottle of Canada Dry Club Soda it will be opened preparatory to use.

If, as here, the proof at trial shows that when the purchaser in the process of opening a bottle was injured by a defect therein, she is entitled to an implied warranty of fitness for use as held by the lower court.” The court said that it would not, at that time, extend the doctrine of implied warranty to all containers of food, but that “in this case the bottle and its contents are so closely related that it is difficult — if not impossible — to draw a distinction.” It is clear that the decision in the instant case, holding that the plaintiffs had no cause of action against the retailer for breach of an implied warranty of fitness and merchantability, is in direct conflict with the Canada Dry case, insofar as the plaintiff husband, who was in privity with the retailer, is concerned.

Thus, we have jurisdiction to determine the question of the implied-warranty liability, in general, of a retail-seller of a product sold in a container for injury caused by the container. This exact question has not heretofore been presented to this court. We have held the bottler liable upon an implied warranty of fitness in a suit by the purchaser-consumer of the beverage who was injured by a deleterious substance (broken glass) .contained therein. Florida Coca-Cola Bottling Co. v. Jordan, Fla.1953, 62 So.2d 910.

And it is, of course, well settled, as noted by the court in the Canada Dry case, that both the retail-seller and the manufacturer of foodstuffs sold in a sealed container are liable to the consumer, upon an implied warranty of fitness and wholesomeness, for injuries caused by unwholesome or deleterious susbtances therein. See Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So.2d 313 (manufacturer and packer of tinned meat); Sencer v. Carl’s Market, Fla. 1950, 45 So.2d 671 (retail-seller of canned sardines). See also Cliett v.

Lauderdale Biltmore Corporation, Fla.1949, 39 So.2d 476, in which a restaurant proprietor was held liable, on the theory of implied warranty of fitness of the food served by him, to a customer who became ill after eating unwholesome food served to him in the defendant’s dining room. As stated in the Cliett case, supra, and reaffirmed in Sencer v.

Carl’s Market, supra, 45 So.2d 671, 672: “These cases establish the principle that as to items of food or other products in the original package which are offered for sale for human consumption or xise generally, a person who purchases such items in reliance upon the express or implied condition or assurance that they are wholesome and fit for the uses or purposes for which they are advertised or sold, and who is in-injured as the result of unwholesome or deleterious substances therein which are unknown to the buyer, may hold either the manufacturer or the retailer liable in damages for injuries sustained by him, on the theory of an implied warranty of wholesomeness or fitness of such

article or product for the purposes for which it was offered to the public.” (Emphasis added.) But other than in the case of foodstuffs, we know of'nb decision of'.this court imposing liability upon a retail seller of a product upon the theory of implied warranty, except under established common-law principles. In Lambert v.

Sistrunk, Fla.1952, 58 So.2d 434, we pointed out that the “implied warranty” theory of liability of a seller was an exception to the maxim, “Let the buyer beware,” and that “To come into play, the exception must therefore spring from some moral obligation on the part of the seller, or perhaps more accurately, on the breach of some such duty amounting to fraud or the taking advantage of the buyer by reason of some superior knowledge in .the seller, or the reliance by the buyer on the seller’s judgment.” Cf. Smith v. Burdine’s, 1940, 144 Fla. 500, 198 So. 223, 131 A.L.R. 115, and McBurnette v.

Playground Equipment Corp., Fla. 1962, 137 So.2d 563, in which retail sellers were held liable oh the theory of breach of implied warranty of fitness under the- rule that the seller is subject to such an implied warranty where the buyer relies upon the seller’s judgment of the fitness of a particular

article for the purpose intended.

The rationale of our decisions extending to the retail-seller of food products the absolute liability imposed upon the manufacturer of such products, upon,the theory of an implied warranty of fitness and wholesomeness, is that neither the retail-purchaser nor the retail-seller can discover that a particular item of food enclosed in a sealed container is defective; that the retail-seller is in a superior position to that of the consumer since he is experienced in buying from the manufacturers, is acquainted with the products and the manufacturers and relies upon the reputation of the manufacturers in stocking such food items; so that, in this area of wholesome food which is of vital concern to the public, the retailer should be held to the same liability as the manufacturer as a matter of public policy.

See Sencer v. Carl’s Market, supra, 45 So.2d 671.

It was pointed out, in a specially concurring opinion, that in many cases the manufacturer of a’ food product was located in a foreign country beyond the reach of the consumer, that the retailer has a right of indemnity against the manufacturer if compelled to pay damages to a consumer because of the unwholesomeness of the food product, and the retailer “can avoid placing himself in a position wherein he.could not, in turn, sue the mauufacturer by electing to purchase only from responsible manufacturers within the jurisdiction of the courts in which he might enter suit.” 45 So.2d at p. 673.

Assuming for the purpose of this argument that the reducing pills, being for human consumption, would fall within the same category as foodstuffs, insofar as the retailer’s liability upon an implied warranty is concerned, the- question then becomes: Does public policy dictate that the retailer be held to the same liability for the merchantability and fitness of the container of food products as is imposed upon him for the food products themselves?

We confess that we can see no more reason for holding the retailer liable for a defect in a container of foodstuffs (when such defect is unrelated to and has no deleterious effect upon the food product itself) than for a defect in or the non-merchantability of the container of other non-food products which he sells at retail. The public interest in having a non-defective, merchantable container would seem to be the same, regardless of whether it encloses a food product or any other product. In the Canada Dry v.

Shaw case here relied upon by petitioner, 118 So.2d 840, the District Court of Appeal, Second District, quoted from Tennebaum v. Pendergast (Ohio Com.Pl.) 89 N.E.2d 490, in which a bottler was held liable for injuries caused by a bottle of Royal Crown Cola exploding in the consumer’s hand. The appellate c.ourt also relied upon the decision of this court in Florida Coca-Cola Bottling Co. v. Jordan, supra, 62 So.2d 910 — another suit against a bottler of the beverage for injuries caused by the consumer’s swallowing broken glass which was contained in the bottle.

It is obvious that the bottler is in a position equivalent to that of a manufacturer of a product; and our holding in the Florida Coca-Cola Bottling Co. case is in accord with the modern trend of authority in this Country.

See the cases collected in the annotation in 81 A.L.R.2d 226 et seq., on the subject, “Liability of manufacturer or seller of product sold in container or package for injury caused by container and packaging.” It is interesting to note that only one case was cited by the annotator in which it was held that the retail-seller’s implied warranty of fitness of a food product applied, also, to the container of such product, in the absence of statute— and that was the Canada Dry decision of our Florida appellate court here in question, supra, 118 So.2d 840. See 81 A.L.R.2d at page 258.

We are not persuaded that considerations of public policy require us to extend to food containers the “implied warranty” liability of retailers as to the food contained therein; on the contrary, we are of the opinion that it would be unreasonably burdensome to extend liability in this respect. A similar conclusion was reached by the Illinois appellate court in Crandall v. Stop & Shop, 288 Ill.App. 543, 6 N.E.2d 685, and by the federal court (applying Minnesota law) in Torpry v. Red Owl Stores, Inc., 1958, 8 Cir., 228 F.2d 117.

Accordingly, the Third District Court of Appeal was eminently correct in affirming the judgment of the trial court in the instant case insofar as it could be construed as holding that the complaint failed to state a cause of action, upon the theory of breach of implied warranty, against the defendant retailer, Weaver Drugs, Inc. This being so, it is unnecessary to decide whether the plaintiff-wife’s suit would have been barred, had a cause of action existed, because of her lack of privity with the defendant, Weaver Drugs, Inc.

Our examination of the record in this cause reflected prima facie jurisdiction because of the alleged conflict with the decision of another district court of appeal, in Canada Dry Bottling Co. of Florida v. Shaw, supra, 118 So.2d 840. For the reasons stated, the decision of the appellate court in the Canada Dry case is disapproved, that of the appellate court in the instant case is approved, so the decision under review will not be disturbed and the writ is discharged. It is so ordered. DREW, C. J., concurs specially with Opinion. CALDWELL and ERVIN, JJ., concur. THORNAL, J., dissents with Opinion.

THOMAS and O’CONNELL, JJ., dissent and agree with THORNAL, J. . “§ 3. Practice and Procedure — The practice and procedure in all courts shall be governed by rules adopted by the supreme court.”