13 A.2d 757 | Conn. | 1940
The finding is attacked by the appeal but cannot be corrected in any respect materially affecting the issues which determine it. In so far as the defendant's liability is concerned these material facts, summarized in part, appear from the finding. In a bingo game which the plaintiff had paid a fee to enter, he won a box of chocolates manufactured by the defendant. Several days later, on January 18, 1938, the plaintiff opened the box, took out a chocolate caramel and started to chew it. Within a second or two he bit into a hard metallic substance which broke off one of his upper teeth. Nothing in the appearance of the caramel indicated there was anything wrong with it. From the time the box left the defendant's factory until opened by the plaintiff, the candy continued in the original sealed cellophane-wrapped package and as received by him was just as shipped by the defendant. The hard substance was *661 a silver amalgam filling from a tooth, but at the time none of the plaintiff's teeth had been filled and the filling came from no tooth of his. The breaking of the plaintiff's tooth killed the nerve, causing an abscess. January 28, 1938, the tooth began to give trouble and after a futile attempt to save it, was extracted February 2, 1938. The injury to the tooth affected the plaintiff's health, interfered with his work, and necessitated expense for dentist and doctor. The entire process of manufacturing the candy, including inspection, packing and wrapping, was in the exclusive control of the defendant, and was conducted in its large plant employing eight hundred and fifty workers and utilizing modern machinery. This process included the passing of the cooked molten mass used to form the caramel centers through — a three-sixteenths inch mesh screen, and inspection at various stages by nine different employees prior to the wrapping of the filled box, they being charged with the duty of eliminating all candies which their visual examination disclosed as imperfect or as containing any foreign substance. The devices and appliances used in the manufacture of this caramel were inadequate and ineffective to exclude the metallic substance therefrom and the defendant's employees failed to so perform their duties as to accomplish this result; the fragment was in the caramel when it left the defendant's possession and control; and nothing happening subsequently affected or altered that condition. The court concluded that the defendant was negligent in manufacturing this caramel with the metallic substance in it, that its negligence was a substantial factor in producing the plaintiff's injuries, and that he was free from contributory negligence.
The defendant's principal claim is, that even though not entitled to a correction of the finding, the court's *662
conclusion that it was negligent is unwarranted. Its contention amounts to this, that having established the care and supervision used in the manufacture and handling of its products, the doctrine of res ipsa loquitur loses all probative force and all its potency to set up any presumptions or inferences of negligence, and, to all intents and purposes, drops out of the case; and that the plaintiff must then bear the burden of proving negligence in the usual manner without benefit of any such presumptions or inferences. The cases of Gross v. Loft, Inc.,
This misinterprets the ratio decidendi of the Jump *663
case and indicates a misconception of the operation of this doctrine. As is clearly stated at page 115 of the opinion in that case, because of the fact that the defendant's evidence established as an indisputable physical fact that the claimed defect in the fuse could not have been due to its fault, no real question of conflict of evidence concerning which reasonable minds could reasonably differ remained for the jury's determination. No such situation is presented in this case. The fact that the defendant employed modern machinery, provided for repeated inspections, and utilized other precautions as shown by the finding, does not eliminate the possibility of negligence by an employee in permitting the fragment to get into the candy mix or in failing to discover it after it was there. Upon the facts found, the doctrine of res ipsa loquitur applies. Jump v. Ensign-Bickford Co., supra, 121, 122. This does not mean that an inference of negligence must be made by the trier but that it may be. While its significance as such is confined to the establishment of a prima facie case, yet as we have said of a case tried to the jury: "`When the case goes to the jury, the doctrine as such has no further application, but the facts upon which that application depends remain in the case to be considered alone or with other proven facts as the basis for an inference of negligence.' Motiejaitis v. Johnson,
Although where it is necessary to understand clearly the court's ruling, we may read its memorandum of decision (Valluzzo v. Valluzzo,
There is no error.
In this opinion the other judges concurred.