
    Lillian ALLEN, wife of/and Emmett Allen v. MEYDRICH’S FOOD STORE, INC., d/b/a Venus Gardens, et al.
    No. 4613.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 1972.
    Joseph Neves Marcal, III, New Orleans, for plaintiffs-appellants.
    Robert J. Young, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   REDMANN, Judge.

Plaintiffs appeal from a judgment dismissing on the merits their suit for damages resulting from plaintiff wife’s eating part of a can of beans which allegedly contained worms. Defendants are the food packer and the retailer and their respective insurers.

Plaintiff wife testified she heated the beans in a pan and ate some, and became ill about a half hour later. She then examined the beans and found “they had a lot of small worms in them.” She had not seen any worms before she ate the beans. She testified the worms were “about big as a pin head”, numbering possibly over a hundred. Her corroborating witness testified they were almost an inch in length, numbering about two dozen.

The incident occurred September 3, 1968, and plaintiff wife kept the can of beans in her freezer until August 1970, at which time (with this suit then nearing trial) she threw it out because she was cleaning up her freezer.

The trial judge evidently did not believe plaintiff wife or her other witness and, in view of their inconsistent testimony (and also the destruction of the physical evidence), we are unable to say he erred in rejecting their testimony.

The judgment is affirmed.  