Newhall v. Ward Baking Co.
134 N.E. 625
Mass.
1922
Check Treatment
DeCourcy, J.

Part of a nail, in a loaf of bread manufactured by the defendant, lodged in the plaintiff’s throat. She bought the bread from a retail grocer; and as there was no contract between her and the defendant, there is no liability based on implied warranty of the whólesomeness of food sold for immediate consumption. Gearing v. Berkson, 223 Mass. 257. Ward v. Great Atlantic & Pacific Tea Co. 231 Mass. 90. L. R. A. 1917 F 472 note. While the declaration contained no count in contract, it did contain one in tort for negligence. The general-rule that a manufacturer of an article is not liable for negligence in its manufacture to a third person with whom he has no contractual relations, is subject to certain well settled exceptions. Tompkins v. Quaker Oats Co. 239 Mass. 147, and cases collected. One of these exceptions recognizes the liability of a tortfeasor to third persons for negligence in the preparation of food for human consumption. The tendency of courts is to hold such manufacturer to a high degree of care, because of the serious consequences to human life likely to follow his negligence. Wilson v. J. G. & B. S. Ferguson Co. 214 Mass. 265. And manifestly food which contains a nail or other like foreign substance may be quite as unfit for consumption as if it were composed of deleterious ingredients. Friend v. Childs Dining Hall Co. 231 Mass. 65. Watson v. Augusta Brewing Co. 124 Ga. 121. Crigger v. Coca-Cola Bottling Co. 132 Tenn. 545. See Ash v. Childs Dining Hall Co. 231 Mass. 86; Liggett & Myers Tobacco Co. v. Cannon, 132 Tenn. 419. In the present case, however, it is unnecessary to consider the liability of the defendant as a tortfeasor for negligence, because the trial judge directed a verdict for it on the second count, and the correctness of that ruling is not before us on the defendant’s exceptions.

*437The count on which the plaintiff got a verdict was based on deceit, and is similar to that in Roberts v. Anheuser Busch Brewing Association, 211 Mass. 449. The alleged representation was printed upon the wrapper: “This bread is 100 per cent pure, made under the most modern, scientific process, has very special merit as a healthful and nutritious food. The water of which this bread is made contains Arkady Yeast Food,” etc. The representation is claimed to be false because of the presence in the loaf of bread of the top end of a wire nail, described as follows: “The nail has a circular head and at its widest part is one fourth inch. The length of the nail, without the head, is nine thirty seconds of an inch. The diameter of the nail is three thirty seconds of an inch.” It seems quite apparent that the words relied on — “ 100 per cent pure” and “healthful . . . food” •—were used in the sense of containing no deleterious or unwholesome ingredients; such, for instance, as would constitute adulterations or injurious materials under the statute relative to the manufacture of bread. St. 1915, c. 258, § 1. See also the pure food law, St. 1917, c. 208, § 7. As we construe the printed representation, it does not include the accidental presence in bread otherwise fit for human consumption, of a foreign substance like a nail, not permeating the loaf nor constituting one of its ingredients. Further, the burden was on the plaintiff to show not only a representation that was false, but one that was fraudulent, as distinguished from an innocent misrepresentation. As to this, there was no evidence that the defendant knew there was a nail in the loaf of bread. Even if the failure to prevent or to discover its presence was negligent, negligence is not fraud,—which imports design and purpose. Bower on Actionable Misrepresentation, 116. Bowker v. Delong, 141 Mass. 315. See Lebourdais v. Vitrified Wheel Co. 194 Mass. 341, 344. Cole v. Cassidy, 138 Mass. 437, 439.

The rule applicable where a representation is made positively, as of the defendant’s own knowledge, was not presented to the jury accurately. As it was stated in Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 404: “It is well settled in this Commonwealth that the charge of fraudulent intent, in an action for deceit, may be maintained by proof of a statement made, as of the party’s own knowledge, which is false, provided the thing stated is not merely a matter of opinion, estimate, or judgment, but is sus*438ceptible of actual knowledge; and in such case it is not necessary to make any further proof of an actual intent to deceive. The fraud consists in stating that the party knows the thing to exist,, when he does not know it to exist; and if he does not know it to. exist, he must ordinarily be deemed to know that he does not.”' On the facts disclosed, it is difficult to see how this doctrine is. applicable. Nor is it apparent that the plaintiff relied upon the-alleged representation, or knew of its existence, when she gave-her grocer “an order for things, including bread,” without specifying Ward’s bread.

We are of opinion that the defendant’s motion for a directed’ verdict on the first count should have been granted. Windram Manuf. Co. v. Boston Blacking Co. 239 Mass. 123. It is unnecessary to consider the exception to the charge, as the same question, is not likely to arise on a new trial.

Exceptions sustained.