| Mass. | Oct 31, 1924
This is an action of tort to recover damages caused to the plaintiff by biting upon a piece of glass while eating spinach. The spinach had been taken from a can purchased from a retailer, who had purchased it from a wholesale grocer to whom it had been sold by the defendant.
The declaration was in two counts: the first alleging a misrepresentation by the defendant; and the second alleging negligence of the defendant in that it “ carelessly and negligently allowed and put within and concealed within the can of spinach a piece or pieces of glass.” At the close of the evidence, which the bill of exceptions does not state is fully reported, the defendant moved for a directed “ verdict ” on the first count. This motion was allowed and no exception appears to have been taken thereto. The defendant then moved for a directed “ verdict ” on the second count. This motion was denied; the defendant excepted to its disallowance and the presiding judge found for the plaintiff and made a “ Statement of Findings and Rulings ” in part as follows:
“ The defendant manufactures and sells various canned food products intended for food for human consumption, among which is a brand of canned spinach known as ' Del Monte.’ The spinach is prepared and canned at the factory of the defendant, where the cans are sealed in such a manner that they can be opened only by cutting out the top or sides of the can with a can opener. In the year 1919 and 1920*201 the defendant sold to the United Wholesale Grocery Company, a wholesale grocery store in Worcester, Massachusetts, some of the Del Monte canned brand of spinach which had been prepared and canned by it in its factory. The Lake Shore Grocery Store, a retail store in Worcester, bought some cans of this spinach from the United Wholesale Grocery Company, and the plaintiff bought one of these cans from the Lake Shore Grocery Store. In eating the spinach the plaintiff was injured by a piece of glass which was contained in the spinach at the time the can was opened. The plaintiff’s tooth was broken and the roof of her mouth was considerably cut. The can contained, at the time it was opened, three pieces of glass of dimensions as follows: One was about three quarters of an inch long, sharpened at both ends, apparently chipped. It was thick glass, grayish in color. Another piece was about an inch and a quarter to an inch and a half long. The third piece was wedge shaped, about half an inch wide at the bottom, and about one and one half to one and three quarters inches long. The side of one piece had a rounded edge. I find that the method and process by which spinach was prepared and canned by the defendant was as stated in its answer to the plaintiff’s interrogatory number 19, as modified by the plaintiff’s motion to strike out. There was no evidence that the defendant had been negligent in preparing and canning the spinach in question, unless the fact that the glass was in the can when it was sealed at the defendant’s factory (which I find to be the case) is evidence of such negligence unless explained, — that is to say, unless the rule of res ipso loquitur applies. There was no contractual relation between the plaintiff and the defendant which would entitle the plaintiff to recover upon an implied warranty. While the canned spinach was labeled, no false representations were made by the defendant by reason of such label or otherwise concerning the contents of the can.”
The defendant contends that the evidence reported did not “ warrant the finding that the spinach which furnishes the subject matter of this case ‘ had been prepared and canned by it, (the defendant) in its factory.’ ” The defendant’s argument in support of this position rests upon the
The further contention of the defendant is that “ there was no evidence upon which the court could find that the glass was in the can when it was sealed at the defendant’s factory.” Such evidence was to be found in the testimony of the defendant “ that all spinach sold by defendant is sold in sealed cans, . . . sealed in such a manner that they can only be opened by cutting out with a can opener the top or sides of the can the cover or top of the can being tightly crimped on to the body of the can by patented machinery,” when such evidence of the defendant is considered in connection with the testimony of the plaintiff and of her husband, wherein they describe in detail the obtaining of the can, and the preparation of the spinach for their meal from the time the husband opened the can with a can opener until the time when the spinach, warmed in an aluminum skillet, was served into small dishes at the table and was found to contain glass which cut the mouth of the plaintiff.
The statement of the defendant .as to the manner the spinach is handled in the factory before it is placed in sealed cans for sale and distribution for human consumption did
A food product mixed with glass is as unfit for human consumption and as dangerous to health and fife as a poisonous food. The sale of food dangerous to health and to life renders the manufacturer or the seller thereof liable to third persons not the direct purchasers for injuries received by them from its consumption, if the manufacturer or seller was negligent in its preparation or output. Tonsman v. Greenglass, 248 Mass. 275" court="Mass." date_filed="1924-02-29" href="https://app.midpage.ai/document/tonsman-v-greenglass-6436581?utm_source=webapp" opinion_id="6436581">248 Mass. 275.
Exceptions overruled.