
    The Ward Baking Co. v. Trizzino.
    
      (Decided February 6, 1928.)
    
      Messrs. Mooney, Hahn, Loeser $ Keough, for plaintiff in error.
    
      Messrs. Buonpane & Marco, for defendant in error.
   Levine, J.

The case comes into this court on error proceedings instituted by tbe plaintiff in error, who was defendant in tbe trial court, seeking to obtain a reversal of the judgment rendered against it and in favor of the defendant in error, Alphonso Trizzino.

The operative facts alleged in the petition are, with few exceptions, conceded. It appears that on the 25th day of October, 1925, defendant in error purchased a cake from a retail grocer by the name of Santinsky. This cake is described as a 12-eent cake, wrapped in a thin waxed paper covering bearing the imprint, “American Beauty Cake,” together with the name of the Ward Baking Company. This cake was delivered in the usual manner. The usual custom is that the Baking Company’s deliveryman delivers American Beauty cakes in paper boxes, containing four cakes in number. At the time of the purchase this particular cake was picked from the counter and handed to the injured, and thereafter taken by him to his. rooming place nearby, where he removed the paper covering. After placing it upon the table, he commenced to eat of the cake, and upon taking the second bite felt a pricking sensation in the tongue. He went to St. Alexis hospital that day, and thereafter, during the same day, he consulted with his physician, Dr. G-eraci, who felt a foreign substance in the tip of the tongue. X-rays were taken, and the injured was removed to St. Luke’s Hospital, where he remained for approximately 24 days under observation, upon a diet of liquids and bran. During this period X-rays were taken at intervals, showing the movement of the needle through the stomach and intestines until it had been expelled from the system.

In the plaintiff’s petition, upon which the case was tried and submitted, there are contained the following allegations:

“Plaintiff alleges that this said defendant impliedly warrants the wholesomeness and freedom from foreign and dangerous substances • of their cakes sold through the regular channels and trade, but, notwithstanding said warranty, the said cake contained a needle, which injured the plaintiff as hereinafter set forth..

“Plaintiff says that his injuries were the direct and proximate result of the defendant’s negligence by. reason of said needle being imbedded in said cake. ’ ’

I. The Baking Company contends and urges that neither the pleadings nor evidence raised the issue of- either implied warranty or negligence; that error was committed by the trial court in refusing to arrest the testimony from the jury and direct a verdict for the Baking Company, by delivering instructions to the jury upon the questions of either implied warranty or negligence, and by overruling the Baking Company’s motion for a new trial. It is also urged that the verdict and judgment are against the evidence, so high and excessive as to demonstrate that the jury was influenced by passion and prejudice, superinduced by misconduct of counsel for the injured.

The petition of the injured alleged implied warranty, and originally alleged facts which would constitute negligence, if proved. These allegations of negligence were withdrawn from the petition by counsel for plaintiff, and there was substituted therefor an allegation that the Baking Company was -negligent “by reason of said needle being imbedded in said cake.” This allegation alone touches the negligence question.

It is urged by the Baking Company that the evidence clearly disclosed that the injured did not buy this cake from the Baking Company, and that no contractual relationship existed between the injured and the Baking Company. It is therefore argued that a warranty implies a contractual relationship, which naturally includes privity of contract between or among the parties thereto, and that such privity existed in this case.

The Baking Company stands upon the proposition that under no circumstances, upon principle, reason, or logic, should one not in privity of contract be permitted to recover for an alleged breach of contract. A great many authorities are cited in the brief of the plaintiff in error in support of this proposition, principally the case of Chysky v. Drake Bros. Co., 235 N. Y., 468, 139 N. E., 576, 27 A. L. R., 1533, where the court, in its opinion, said:

“The general rule is that a manufacturer or seller of food, or other articles of personal property, is not liable to third persons, under an implied warranty, who have no contractual relations with him. The reason for this rule is that privily of contract does not exist between the seller and such third persons, and unless there be privity of contract, there can be no implied warranty. The benefit of a warranty, either express or implied, does not run with a chattel on its resale, and in this respect is unlike a covenant running with the land so as to give a subsequent purchaser a right of action against the original seller on a warranty.

“It may be assumed that under certain facts and conditions the. manufacturer of an article would be liable to a third person, even though no contractual relation existed between them, if the article sold were negligently prepared or manufactured.”

Also the case of Pelletier v. Du Pont, 124. Me., 269, 128 A., 186, 39 A. L. R., 972, in which case proposition 1 and 7 of the syllabus, as it appears in 39 A. L. R., 972, read:

“1. No implied warranty runs from a manufacturer of food products to a consumer who purchases from a middleman. ’ ’

“7. There can be no implied warranty without privity of contract, and warranties as to personal property do not attach themselves to and run with the article sold.”

It is claimed by the Baking Company that the above entitled case was applied to an action by a purchaser from a middleman against a manufacturer, involving the purchase from the middleman of a loaf of bread containing an embedded pin.

The defendant in error cites a number of authorities sustaining his position that an implied warranty. arose in favor of the ultimate purchaser, particularly the case of Liggett & Myers Tobacco Co. v. Cannon, 132 Tenn., 419, 178 S. W., 1009, L. R. A., 1916A, 940, Ann. Cas., 1917A, 179, where it is held that the preparation of foodstuffs, whose only use is to be taken and consumed by human beings for the nourishment of the body, and which serve through organic action to build up normal tissue, is one of the few exceptions to the general rule that ordinarily the manufacturer of the articles placed by him on the market for sale, and sold by a middleman to an ultimate consumer, is not liable to the last named for injuries due to impurities in the commodity.

Quoting from 1 Williston on Sales (2nd Ed.), Section 244, wherein this proposition is discussed and the following paragraph is found:

“The general rule that warranties do not run in favor of any but an immediate purchaser has been held applicable in a number of cases where food has been sold to a subpurehaser. Several recent cases, however, have imposed the absolute liability of a warrantor on such manufacturer in favor of the ultimate purchaser. There should be no doubt that the manufacturer is liable in tort to the ultimate purchaser for the consequences of negligence if negligence can be established, but to go further seems somewhat severe.”

In view of the seeming conflict of authorities upon the subject, there being no direct authority, in Ohio covering a case exactly like the case at bar, we find ourselves on virgin territory and are free to resort to our own processes of reasoning and consideration of the demands of justice.

The Baking Company, when it delivered the cake in question to the groceryman, to say the least, impliedly represented to the public, who is the ultimate consumer, that this cake is free from injurious substances and fit for consumption as food. There is no doubt that an implied warranty arises between the groceryman who purchased the cake and the Baking Company. Since the Baking Company was fully aware that the groceryman did not purchase the cakes for his own consumption, but purchased the same instead for the purpose of selling the same to members of the public, who are the ultimate consumers, this implied obligation which unquestionably arose in favor of the groceryman may be legally said to have also arisen for the benefit of the consumer. The groceryman, who is in effect merely a distributing medium for the articles of food furnished by the Baking Company, and the Baking Company, having full knowledge of that fact, dealt with each other and entered into a contractual relationship for the benefit of the public, which is the ultimate consumer. In other words, this contract between the groceryman and the Ward Baking Company to all intents and purposes was a contract entered into for the benefit of a third party, to wit, the ultimate consumer. Whatever implied warranty arises in favor of the groceryman, who established the contractual relationship with the Baking Company, is for the benefit of this third party, namely, the ultimate consumer.

While we have not made a minute examination of the authorities cited, and that are claimed to bear upon the legal poifit in question, we are content to place ourselves in the category of the minority states, if such be the case, and to hold that there is imposed the absolute liability of a warrantor on the manufacturer of articles of food in favor of the' ultimate purchaser, even though there are no direct contractual relationships between such ultimate purchaser and the manufacturer.

We therefore find no error in the refusal of the court to direct a verdict in favor of the Baking Company, or in the action of the court in instructing the jury on the question of implied warranty.

II. It is urged by the Baking Company that the allegation of negligence as now found in plaintiff’s petition does not set forth any operative facts to show wherein the Baking Company was negligent; that it is either a conclusion of law, and therefore meaningless, or is intended to invoke the doctrine of res ipsa loquitur, which cannot be applicable to the case at bar.

We are indebted to counsel for defendant in error, plaintiff below, for an array of authorities which are helpful in the consideration of this second point urged by plaintiff in error. The case of Ternay v. Ward Baking Co. (Sup.), 167 N. Y. S., 562, decided in 1917, bears similarity to the case at bar. In that case the plaintiff sued to recover damages for injuries sustained through eating a loaf of bread baked by the defendant, in which many particles of glass were imbedded in the crust on the lower side. The defendant’s driver delivered the bread with other loaves to a storekeeper, who placed them in a case reserved for bread and subsequently sold the loaf in question to the plaintiff. The particles of glass had the appearance of having been baked into the crust, or at all events of having been impressed thereon at a time when the crust was soft- and still warm from baking. From a judgment dismissing the complaint at the close of the plaintiff’s case,' the plaintiff appealed. The court reversed the judgment and ordered a new trial, saying:

“The testimony of the dealer is sufficient to permit a finding that no opportunity was ever presented during his possession of the loaf to so interfere with it as to produce the result which the exhibit discloses. I think, therefore, that on his evidence and the mute testimony of the exhibit an issue was presented for submission to the jury whether the dangerous condition of the bread was not produced by the defendant through its agents.”

Ih the case of Freeman v. Schultz Bread Co., 100 Misc. Rep., 528, 163 N. Y. S., 396, the plaintiff, 13 years old, while starting to masticate a piece of bread which he had bitten from a whole slice, bit into a nail in the bread, and as a result lost twu teeth. The loaf was made by the defendant aud sold to a grocer, from whom it was purchased by the plaintiff’s sister. The defendant, contending that the plaintiff was bound to trace the manufacturer of the loaf, and' show that the nail was put in or permitted to be in the loaf through some neglect on its part, rested without offering any evidence. The court thereupon gave judgment for plaintiff for $300, holding that the evidence warranted a finding that the nail was in the bread when it was delivered to the retailer; that when plaintiff rested, after proving the presence of the nail in the bread and the consequent injury, the burden rested upon tho defendant to show that it had exercised due care tc keep its products free from nails and like injurious foreign substances.

See, also, the case of DeGroat v. Ward Baking Co. (N. J. Err. & App.), 130 A., 540.

These authorities seem to indicate that the presence of particles of glass or other injurious substances in a loaf of bread is in itself sufficient to compel the submission of the case to the jury. In order to justify the submission of the question of negligence in the case at bar, it is sufficient to plead that the defendant was negligent by reason of said needle being imbedded in said cake, and proof offered upon that point will raise a question for the decision of the jury. It is not necessary to resort to tbe doctrine of res ipsa loquitur in order to justify such action by tbe court. The presence of tbe needle in tbe cake bearing tbe name of the Ward Baking Company is an evidential fact from which negligence may be inferred. The other evidence offered by the plaintiff eliminated the probability or possibility of the needle having become imbedded in the cake after it left the Ward Baking Company.

Considerations of public policy demand that the utmost care and caution be exacted from the manufacturer of articles of food, who not only manufactures the same, but causes the same to be delivered to grocerymen, bakeries, and so forth, for the purpose of general distribution and sale to members of the general public. The consumer has a right to rely upon the implied representation of the Baking Company that these articles bearing its name are not only free from injurious substances, but are fit for consumption as food..

III. It is urged that the verdict rendered by the jury is so high and excessive as to demonstrate that the jury was influenced by passion or prejudice. We find much evidence offered by defendant in error to justify the extent of the verdict. It would not be a fair interpretation of the evidence to say that all the injury which defendant in error sustained was the loss of time of about one month, while he was under observation and treatment.

We hold that, in a case like the case at bar, the jury has a right to consider the mental suffering' caused by the anxiety and fear of the ensuing consequences while the needle was in defendant in error’s system. There is evidence not only of pain and suffering and mental anguish, but of the loss of weight, together with hospital expense, X-ray and medical treatment, which lasted for nearly one year. We find no misconduct of counsel for defendant in error.

In view of the above considerations, the judgment of the common pleas court will be affirmed.

Judgment affirmed.

Sullivan, P. J., and Vickery, J'., conóur.  