3 A.2d 224 | Conn. | 1938
The plaintiff Gadwiga is the wife of Maryan Borucki and Theodore is their minor son living with them and other children in Stratford. The plaintiffs offered evidence that on February 8, 1936, Gadwiga gave her husband money and requested him to go to the store of the defendant, a large retail dealer in Bridgeport, and buy some minced ham and liverwurst. The husband asked a clerk for a piece of fresh liverwurst and the latter took from a show case a large piece, cut off a portion weighing about two and one-half pounds and delivered it to the husband. The liverwurst was manufactured by another concern, from whom the defendant purchased it. Gadwiga ate a slice *94 of it the same evening, afterward felt ill but the next morning ate another small piece and shortly thereafter removed a small piece of glass from her tongue, which was slightly cut; a physician was called and removed a small piece of glass from her upper jaw. Theodore ate some of the liverwurst and afterward felt ill, while other members of the family who did not eat of it were not affected. Both plaintiffs claimed to have suffered pain and distress and went to a hospital for observation. The defendant offered evidence and claimed to have proved that it was in no way negligent in the manner in which it kept and handled the meat and that no foreign substance entered it while it was in the defendant's possession; that after it was taken to the plaintiffs' home it was unwrapped and left open for some time before being eaten, and that an analysis of the uneaten portion disclosed no particles of glass therein.
The complaints charged, in the same count, both breach of warranty of fitness for consumption and freedom from foreign substances, and negligence in failing to discover the presence of foreign substances in the meat, but the trial court, holding that there was no evidence of negligence by the defendant, removed that issue from consideration by the jury and this is not assigned as error. As to the other ground of action, the court charged that, as the meat was bought for Mrs. Borucki by her husband, as her agent, and was sold by the defendant for human consumption, there was an implied warranty, so far as she is concerned, that it was fit for that purpose, for a breach of which the defendant would be liable. The court charged, however, that this implied warranty is incident to a contract between the parties and not applicable to a third party, that there was no privity of contract between Theodore and the defendant, which *95 would be necessary as a basis for an action on implied warranty, and, in consequence, a verdict for the defendant was directed in the action brought by him. This latter portion of the charge is attacked on behalf of Theodore, it being asserted that the implied warranty here involved "extends or otherwise should be held to extend to each member of the buyer's immediate family when the seller knows, expressly or by implication, that the food will be consumed by the members of the family."
When the buyer expressly or by implication makes known to the seller that food which he is purchasing is to be put immediately to domestic uses and it appears that the buyer relies upon the seller to select the food, both under the common law and the Sales Act, General Statutes, 4635, "there is, as between the dealer and the buyer-consumer, an implied warranty of wholesomeness and fitness to be eaten, including freedom from foreign substances which may be injurious to the consumer." Burkhardt v. Armour Co.,
The situation is well stated in Gearing v. Berkson,
Practically all of the numerous cases in which the doctrine of implied warranty in the sale of foods has been relied upon and applied as against a retail dealer were brought by the party who purchased the food, *97
either personally or through an agent. Such was the case of Burkhardt v. Armour Co., supra, in which the plaintiff recovered from the retailer (defendant Tea Company) for breach of implied warranty and from the named defendant for negligence. The facts stated in the opinion import and the record (Supreme Court Records and Briefs, Vol. A-18, p. 270) discloses that the trial court concluded that the plaintiff purchased the food through her daughter as her agent. Recovery by one other than the purchaser has generally been denied. Cases dealing with the general subject include the following: Gearing v. Berkson, supra; Brussels v. Grand Union Co. (N. J.)
In most of the cases in which judgment in favor of a stranger to the contract has been sustained it appears upon analysis that recovery has been based upon negligence or other tort instead of upon breach of warranty. Boyd v. Coca Cola Bottling Works,
As the ground of action relied on here patently is breach of contract of implied warranty, there is no occasion to consider whether or not, as the plaintiffs claim, because statutes (General Statutes, 2442 and 2436 [Fifth]) prohibit the sale of food containing any deleterious ingredients under penalty (General Statutes, 2442) a party injured by a violative act or omission has a right of tort action based on a violation of the statute. See Aldrich v. Howard,
The plaintiffs having on direct examination testified to the time they were in the hospital, their treatment *99
there, and their condition, the defendant, as a part of its defense, offered the original hospital records pertaining to the plaintiffs as patients; also, for the purpose of showing what analysis of the uneaten portion of the liverwurst disclosed, it offered the testimony of a state chemist from the laboratory where the analysis was made, who identified a record as the original kept by the laboratory. The plaintiffs objected to the admission of these records on the ground that, not being "books of account," they were not within the scope of 1675c of the Cumulative Supplement, 1935, and so not admissible, and assign error in admitting them in evidence. This statute is printed as a footnote to Weller v. Fish Transport Co., Inc.,
Under 5878 of the General Statutes, which was the predecessor of 1675c, supra, neither the hospital records (except as to the dates of admission and discharge, Sickmund v. Connecticut Co.,
Our 1675c, like the New York statute, is "in the very words" of the legal research committee, and statutes which are the same in substance have been passed in other states, including Rhode Island, Public Laws, 1928, Chap. 1161; Maryland, Annotated Code, 1935 Supp., Art. 35, 54A; Michigan, Public Acts, 1935, No. 15, 53; Massachusetts, General Laws (Ter. Ed.) 1932, Chap. 233, 78, although there is added (79) specific provision for admission of records, kept by hospitals under statute, concerning treatment and medical history but not matters having "reference to the question of liability." In Gile v. Hudnutt,
Naturally other cases under such recent statutes are not numerous. Palmer v. John Hancock Mutual Life Ins. Co.,
The record of the offer and admission of the hospital records does not bear the construction claimed by the plaintiffs as limiting the purpose to affecting the credibility of the plaintiffs and there was no reason for a charge so limiting the effect of this evidence, nor, especially without request, for instruction, as the plaintiffs claim, that the records were not conclusive but to be considered and weighed along with the other evidence.
The defendant pleaded in special defenses that before this action was brought the plaintiffs received payment in satisfaction of damages for injuries from the corporation which was the original manufacturer and packer of the liverwurst and executed in its favor releases and covenants not to sue, and these releases were offered in evidence by the defendant and admitted for the purpose of mitigation of damages, only. As the verdicts and judgments in favor of the defendant stand, and the effect of this evidence was limited, both in ruling and charge, to the amount of damages, *104 if any were awarded, it is unnecessary to review its admissibility.
There is no error.
In this opinion the other judges concurred.