161 A. 385 | Conn. | 1932
The complaint alleged in substance that the plaintiff's decedent purchased from the defendant The Great Atlantic and Pacific Tea Company, hereinafter referred to as the Tea Company, at its *252 Rockville store, a can of corned beef prepared and packed by the defendant Armour Company, which by reason of negligence of the latter contained, embedded and concealed in the beef, a dangerous piece of tin; also that the defendants in selling the same represented and warranted it safe and fit for consumption; that the decedent, although exercising due care, swallowed the piece of tin with results, detailed in the complaint, which caused her pain and suffering and expense and ultimately her death. The answers raised the general issue. The trial court held the defendant Tea Company not negligent but liable for breach of warranty, and Armour Company not accountable upon the warranty — on account of lack of privity of contract with the decedent — but liable for negligence. Details of the conclusions reached which are material on these appeals will be mentioned hereafter.
The finding is that the decedent, Pauline I. Busch, was about seventy years of age, in good health, and owned and kept her own home, her two daughters, one the plaintiff herein and the other Mrs. Hirth, boarding with her. On April 1st, 1930, she requested Mrs. Hirth to purchase for her a can of corned beef for use in preparing the evening meal. Mrs. Hirth went to the store of the defendant Tea Company and asked the manager for a small can of corned beef without specifying any particular brand. The manager handed her a can marked "Armour's Veribest Products Corned Beef" which Mrs. Hirth paid for and took home to her mother. The can was sealed and contained a piece of tin about three quarters of an inch square so embedded in the beef and the gelatinous substance which forms thereon that a person opening the can with due care would not notice its presence. The piece of tin had been placed by the packer at or near the bottom of the can to stop the vent hole through which the *253 vacuum is applied to the interior of the can just before sealing, so that particles of beef will not be sucked out.
The bottom of the can was larger than the top and in the process of removing the meat in the natural way the piece of tin would come out at the bottom of the meat and not be visible. Mrs. Busch opened the can, mixed a part of the contents with potatoes to make hash and placed the mixture in a frying pan on the stove. The loose piece of tin was in the part of the contents so used, but she did not notice it or know of its presence. After cooking the hash for some time, Mrs. Busch tested it by tasting, and as she swallowed it felt something sharp in her throat. She immediately went to a doctor and he extracted from her oesophagus the square piece of tin. It later developed that the tin, having sharp corners, had lacerated the oesophagus and an infection developed which ultimately resulted in her death on April 19th, 1930. Other facts found, modified to such extent as the defendants are entitled under their assignments for correction of the finding, are stated later in this opinion.
The plaintiff assigns error in the conclusion reached by the trial court that "At common law the death of a person was never an element of damage, and inasmuch as no statute creates the right to recover damages for death resulting from a breach of implied warranty, no damages could be assessed in this case against the . . . Tea Company on account of the death of the plaintiff's decedent. The measure of her damages against said defendant for breach of the implied warranty of fitness was therefore her expenses for medical attendance and her pain and suffering down to the time of her death." The question presented is whether our statutes so alter the common-law rule as to render death an element of damage recoverable *254
in this action as against the defendant Tea Company. The statutes relied on as producing this result are now §§ 6030 and 5987 of the General Statutes, 1930, which are quoted in a footnote.* We do not deem it necessary to repeat or review the discussions of the general development and effect of these statutes appearing in the earlier cases. Kling v. Torello,
The plaintiff was held to be entitled to recover from the defendant Tea Company for breach of warranty and from the defendant Armour Company for negligence. Recovery as to both was for the same injuries, but the measure of damages was different in that the death was an allowable element as against the latter but not as to the former, and the award of $2250 for pain and suffering and medical expenses, for which judgment was rendered against the Tea Company, was augmented as to Armour Company by $1250 damages for the death, a total of $3500. The trial court ruled that "the collection of either of said amounts from either of said parties must be in full satisfaction for the injuries sustained by the plaintiff's decedent" and the judgment provided, accordingly, that the plaintiff "shall not collect both of said amounts, and if she collects from one of said defendants the amount of the judgment rendered against it, then that shall be in full satisfaction of this judgment." In this the plaintiff claims error. She concedes, correctly, that she is not entitled to receive double compensation for the same injuries by collecting both judgments in full, but asserts that she is entitled to *257 collect full compensation, and should not be deprived of the benefit of the damages for death through payment or tender of the smaller judgment against the Tea Company which did not include this element.
The general rule is that there can be but one satisfaction of damages, and where judgments are rendered against different persons for the same cause of action, payment of one is a satisfaction of all. Ayer v. Ashmead,
The major contention of the Tea Company, upon its appeal, is that the principle of implied warranty upon which judgment was rendered against it is not applicable because the corned beef was in a sealed can. As to sales of goods in general an implied warranty attaches whenever the facts satisfy the conditions of that provision of our Sales Act which is now subdivision (1) of § 4635 of the General Statutes: "When the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose." This enactment follows and does not change, in any respect pertinent to this case, the common law governing the same subject. Merrill v.Hodson,
There is practical unanimity of modern authority that, both under common law and the Sales Act, upon the sale of food to be immediately put to domestic uses, there is, as between 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.Farrell v. Manhattan Market Co.,
The position taken by most of those cases which deny the exception is well expressed in Ward v. GreatAtlantic Pacific Tea Co. (1918)
In Chapman v. Roggenkamp (1913)
In Griffin v. James Butler Grocery Co. (1931)
The decisions of the English courts indicate that under the Sale of Goods Act, which does not differ from our statute in any respect material to the present inquiry, no distinction is to be drawn between canned goods and those open to inspection, so far as concerns the implied warranty of fitness in sales of food to the consumer. In Frost v. Aylesbury Dairy Co., L. R. (1905) 1 K. B. 608, the article sold was milk containing *263 typhoid germs, as a result of which the plaintiff's wife contracted typhoid and died. The court held the seller liable even though he could not, by the exercise of due care, have discovered this defect, Collins, M. R., saying (p. 612): "The point mainly pressed upon us on behalf of the defendants was that the buyer could not be said to rely on the skill or judgment of the sellers in a case in which no amount of skill or judgment would enable them to find out the defect in the milk supplied. That amounts to a contention that a seller of goods cannot be answerable for a latent defect in them unless upon a special contract to that effect. . . . The matter was specifically dealt with in the considered judgment of the Court of Appeals in Randall v. Newson [L. R. 2 Q. B. D. 102], where it was held that on the sale of an article for a specific purpose there is a warranty by the vendor that it is reasonably fit for that purpose, and that there is no exception as to latent undiscoverable defects."
The further claim advanced by this appellant, that the square piece of tin which injured the plaintiff's decedent is not to be regarded as a foreign substance in the food product within the scope of the implied warranty but, instead, as an accessory of the can and part of the packing process, comparable to the key attached to the can to facilitate opening it, or the can itself, is so clearly fallacious as not to require discussion. The analogy is, rather, to the pebble in the beans in the Ward case and the pin in the bread in the Ryan case. The causal connection between the presence of the tin in the meat, its lodgment in the throat of the decedent, and her consequent injuries, is obvious upon the facts set forth in the finding. The suggestion that the damages are to be limited in amount to the difference between the value of the goods delivered and that which they would have had if they had *264 complied with the warranty, is answered with appropriate brevity by Judge Cardozo in the Ryan case,supra (p. 395): "The rule is not so stubborn. . . . The measure is more liberal where special circumstances are present with proof of special damage." See also § 4689 of the General Statutes; 2 Williston on Sales (2d Ed.) §§ 614, 614a.
The assertion principally pressed by the appellant Armour Company is that because it obtained the can and contents from a reputable packer and independent contractor it cannot be held responsible for negligence, if any, of such packer. The can in question had been packed by an Argentine corporation under an agreement with this defendant, was sold by the packer to a second Argentine corporation, rather significantly entitled "Frigorifico Armour de la Plata," and by the latter to Armour Company, an Illinois corporation. It bore, only, a label which conspicuously displayed on each of the four sides of the can "Armour Veribest Products" ("Veribest" being an exclusive trademark of Armour Company) and in small type the words "Armour Company, Foreign Distributors;" it did not give the name of the actual packer. The trial court found, justifiably, that the ordinary reasonable person reading this label would have inferred that Armour Company was the packer of the product. These facts are sufficient to render applicable the rule expressed by the American Law Institute in its Restatement of the Law of Torts ( § 270, Tentative Draft No. 5) as follows: "One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer." By putting a chattel out as his own product he induces reliance upon his care in making it; therefore, he is liable if, because of some negligence in its fabrication or through lack of proper inspection *265
during the process of manufacture, the article is in a dangerously defective condition which he could not discover after it was delivered to him. The rule applies only where the chattel is so put out as to lead those who use it to believe that it is the product of him who puts it out, but the fact that it is sold under the name of the person selling it may be sufficient to induce such a belief. Comment to § 270, 5th Tentative Draft, p. 75; Thornhill v. Carpenter-Morton Co.,
The finding states, and withstands the effort to correct it, that the standard practice is to use, for stopping the venthole in cans, a round piece of tin about the size of a half-dollar, which is so large that it would not *266 normally be swallowed and, if it were, would not be likely to work injury owing to the absence of sharp points, and that the smaller square piece here used was substantially more dangerous because of its size and four sharp corners. The conclusion that the use of the latter under the circumstances and in the manner disclosed by the finding constituted negligence cannot be held by us as so lacking in factual support as not to be sustainable. The decedent's freedom from contributory negligence is also sufficiently supported by the facts found and these, in turn, are warranted by the evidence and legitimate inferences therefrom.
The complaint, supplemented by the more specific statement, alleged representation, by the label, that the product was one prepared and packed by the defendant Armour Company, also negligence of that defendant or its agent in preparing the same. The facts alleged were all that could reasonably be expected to be within the knowledge of or available to the plaintiff, were appropriate to resort to the rule under discussion and significant of an intention to do so, and, especially in the absence of question raised more seasonably than by motion in arrest of judgment, sufficient to warrant such resort and to support the judgment. The other assignments develop no error or occasion for discussion.
There is no error on either defendant's appeal; on the plaintiff's appeal there is error in the form of the judgment only, and the case is remanded to the Superior Court with instructions to amend the judgment in accordance with this opinion.
In this opinion the other judges concurred.