Alpine v. Friend Bros.

244 Mass. 164 | Mass. | 1923

Pierce, J.

The first of these actions is brought by the husband of the plaintiff in the second action to recover consequential damages sustained by him by reason of the alleged injuries to his wife. The amended declaration in the second action was in two counts — the first based on negligence, the second on deceit. The trial judge directed a verdict for the defendant on the first count and denied a motion for a verdict on the second. The actions were submitted to the jury, which returned verdicts for the plaintiffs. The cases are before this court on a single bill of exceptions to the refusal of the judge to direct a verdict on the motion.

The material facts upon which the female plaintiff relied are that on June 22, 1919, at her direction her daughter purchased of a retailer a loaf of “Friend’s Milk Bread” which the plaintiff knew was manufactured by the defendant; that she had used the bread manufactured by the defendant for a period of more than six years; that she had seen advertisements of the defendant’s milk bread in all the papers; that she noticed it came in wrappers and read what was written on the wrapper; that the loaf of bread which her daughter purchased and brought back was done up in wax paper and corresponded to Friend’s bread that she had been using for some time; that she sliced some of the bread and toasted it for breakfast; that while tasting it she felt something sharp in her mouth and pulled out a piece of tin; that her mouth was all blood; that there was another piece of tin in the bread; that previous to the purchasing of this bread she had seen the advertisements of the defendant in the Salem and Lynn newspapers; that in purchasing the bread on the date of the accident she relied on the newspaper advertisements and upon what was on the wrapper. The language on the wrapper and in the other advertisements did not appear in evidence.

Evidence of advertisements similar to the ones relied upon when the particular purchase was made was in evidence. One advertisement read, in part, as follows: "Friend’s Bread is made under ideal conditions — in kitchens spotlessly clean and equipped with the most scientific aids to bread-making. The material used are of the best, and the actual bread-makers are experts. Friend’s Bread comes to you wrapped in wax paper — sweet, healthful and tasty bread.” Another advertisement read that “Friend’s Bread is made in kitchens whose sanitary conditions are beyond question, and the loaf comes to you neatly wrapped in waxed paper.”

The plaintiff does not contend that the presence of the pieces of tin in the bread constitutes an adulteration within the terms of G. L. c. 94, § 186; nor does she claim that the presence of the tin in conjunction with the statements upon the wrapper constitutes a misbranding within the provision of G. L. c. 94, § 187.

To recover in an action of deceit the plaintiff must prove as to the misrepresentation that it was as to a matter of fact, which may include a belief or an intention, made by the defendant or his agent; that it was made with the intention to induce another to act upon it; that it was made with knowledge of its untruth or was made of a fact susceptible of actual knowledge with recklessness as to its truth or falsehood, or was the utterance of a half truth which in effect is a lie, or was the failure to disclose known facts when there was a duty, original or supervening, to disclose; that it was intended that it should be acted upon, as it was, and that damage directly resulted therefrom. Nash v. Minnesota Title Ins. & Trust Co. 163 Mass. 574, 579. Derrey v. Peek, 14 App. Cas. 337. Chatham Furnace Co. v. Moffatt, 147 Mass. 403. Angus v. Clifford, [1891] 2 Ch. 449. Windram Manuf. Co. v. Boston Blacking Co. 239 Mass. 123. Bower, Actionable Misrepresentation, c. 2, § 15.

The plaintiff rests his right of recovery solely upon the proposition that the presence of pieces of tin in the loaf of bread was “susceptible of exact knowledge” and that the representation that “Grown folks and children alike may eat as many slices as they please without fear of harm” was a representation that the bread did not contain anything that would cause injury to the consumer. We do not think the printed representations above quoted, fairly understood, can be construed to be a declaration that by no accident or mischance can there ever be any foreign substance in any loaf of bread manufactured by the defendant. There is no evidence and no claim that the defendant and its agents had knowledge of the presence of the tin in the loaf of bread; nor is there any evidence that the printed statements were made with recklessness and without an honest belief in the truth of the representations; nor is there any evidence of the declaration of a half truth or of the concealment of any fact which the defendant could have divulged.

We think the case on the facts and in principle cannot be distinguished from Newhall v. Ward Baking Co. 240 Mass. 434; and that the defendant’s motion for a directed verdict on the amended count of the declaration should have been granted.

Exceptions sustained.