14 Cal.2d 272, 16226, Klein v. Duchess Sandwich Co., Ltd.

• Docket Number: 16226
• Citation: 14 Cal.2d 272,93 P.2d 799
• Date: 06 September 1939
• Parties: Klein v. Duchess Sandwich Co., Ltd.
• Court: California Supreme Court

Page 272

14 Cal.2d 272

93 P.2d 799

HERBERT KLEIN et al., Appellants,

v.

DUCHESS SANDWICH COMPANY, LTD. (a Corporation), et al., Respondents.

S. F. No. 16226.

Supreme Court of California

September 6, 1939

In Bank.

Page 273

COUNSEL

Elliott Johnson and D. W. Brobst for Appellants. O'Connor, Fitzgerald &amp Moran and Harold H. Cohn for Respondents. Macdonald, Schultheis &amp Pettit and Lee G. Paul as Amici Curiae, on Behalf of Respondents

OPINION

HOUSER, J.

The action upon which the instant appeal is founded was for the recovery of a judgment for damages, which were alleged to have accrued to the plaintiffs by reason of the fact that one of them assertedly suffered an illness which resulted from the eating of a sandwich which was manufactured by one of the defendants and subsequently sold through the defendant restaurateur to one of the plaintiffs.

The following are among the essential facts which appear from the record that has been filed with the clerk of this court, to wit: The plaintiffs, respectively, are husband and wife; the defendant Duchess Sandwich Company is a limited corporation, engaged in the business of manufacturing various kinds of sandwiches and thereafter selling them in wholesale lots to retailers, who, in turn, sell them to consumers. The defendant Kilpatrick is the owner and operator of the defendant Happy Daze Buffet, which is engaged in a [93 P.2d 800] restaurant business, which includes the furnishing of sandwiches for consumption by the general public. On July 21, 1936, the two plaintiffs went in their automobile to the place of business that was then being conducted by defendant Kilpatrick, and then and there, at the direction of the wife, the husband purchased a ham and cheese sandwich, which was wrapped in waxed paper and sealed by two metal clamps, which had been

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placed thereon by the defendant Duchess Sandwich Company. The latter defendant had delivered and sold the said sandwich to defendant Kilpatrick about one hour before he sold the same to the plaintiffs. In that regard, it appears that the practice pursued by the said defendants was that--with the exception of cheese sandwiches--on the day which followed a sale and delivery of sandwiches, the sandwich company replaced with fresh ones all sandwiches which had not been sold to the public by defendant Kilpatrick. In other words, each day the unsold sandwiches, other than those made with cheese, were exchanged for fresh ones; and the unsold cheese sandwiches were replaced every second day following their sale to the retailer. After the husband had taken the ham and cheese sandwich to his wife, who had remained in the automobile in front of defendant Kilpatrick's place of business, she removed the seals which secured the waxed paper within which the sandwich had been wrapped. Thereupon, she removed the wrapper from the sandwich and "took a bite" of the sandwich and swallowed it. According to her testimony, the sandwich had "a peculiar taste". On immediate examination of the remainder of the sandwich, she discovered that it "was crawling with worms", or "maggots". She became ill and vomited. Shortly thereafter, she went to her home, where she again vomited. Immediately thereafter, and as a result of that incident, the plaintiff wife was confined to her bed for four days, following which and by direction of her doctor, she was sent to a rest sanitarium, where she continued ill for a period of about two weeks. After again returning to her home, she remained ill for an additional period of about six months. The husband and wife thereupon commenced the instant action for a recovery of a judgment for the damages which they thus had sustained. On the trial thereof, her attending physician testified that the wife's condition was characterized by "a marked nervousness, with an obsession about eating"; that "she had an obsession against food ..."; and that at the time of trial, her condition was "a mental condition", which, in his opinion, should be treated by a physician accordingly.

Predicated upon the foregoing facts, on motion made by the defendants, the trial court directed the jury to return a verdict in favor of the defendants. It is from the ensuing judgment that the instant appeal has been taken. No briefs

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have been filed by the respondents other than the Duchess Sandwich Company.

In their complaint herein, plaintiffs pleaded two separate causes of action: In substance, (1) that the defendants were guilty of negligence; and (2) that the defendants had breached an implied warranty that the sandwich was fit for human consumption.

However, without insisting that, in appropriate circumstances, an action for negligence would not lie against a manufacturer, the defendant Duchess Sandwich Company urges the point that on the trial of the action no evidence was adduced from which properly it might be deduced that the said defendant had been guilty of any negligence in the premises. But in that regard, notwithstanding undisputed evidence to the effect that in the manufacture of sandwiches, generally, care had been exercised by the said defendant to prevent the happening of such an incident as befell one of the plaintiffs in the instant case, nevertheless, from the admitted fact that cheese-worms or "maggots" were present on or in the sandwich that was prepared by the defendant Duchess Sandwich Company and thereafter sold by defendant Kilpatrick to one of the plaintiffs, it becomes undeniable that at some time or place some person had failed to exercise the proper degree of care to prevent houseflies or cheese-flies from depositing their eggs on some of the material from which the sandwiches were manufactured, or the subsequent infestation of the particular sandwich in question by cheese-worms or "maggots". And evidence regarding the manner in which the respective businesses of the two defendants were conducted certainly admits of the inference that the negligence existed on the part of the defendant Duchess Sandwich Company rather than on the part of defendant Kilpatrick. To illustrate the possibility of negligence of the one, as well as to exculpate the other, it may be remembered that the evidence [93 P.2d 801] disclosed the fact that after the sandwiches had been prepared at the place of business of defendant sandwich company, they were wrapped in waxed paper, and that the ends of the wrapper were folded and then sealed with metal clamps. Apparently neither cheese-worms nor "maggots" are indigenuous to either cheese or ham; and, since the evidence discloses the fact that "maggots" are the larvae which in two days ordinarily develop from eggs which have been deposited

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by house-flies, or cheese-flies, it would seem likely that the filling of the sandwich had been thus exposed before the sandwich had been wrapped,--especially in view of evidence to the effect that the sandwich had been in the possession of defendant Kilpatrick for a period of approximately one hour only before it was sold to the plaintiffs. In such circumstances, the conclusion that the unfortunate incident was caused by the lack of proper care on the part of the defendant Duchess Sandwich Company is but natural and one which is deducible from the facts in the case. Its contention that the evidence was sufficient to justify the rendition of a directed verdict in favor of the defendants, and the judgment thereon, cannot be sustained.

It is next urged by respondent Duchess Sandwich Company that no implied warranty as to the quality of the food existed in favor of the plaintiffs. In that regard, section 1735, Civil Code, supplies the basic law for a conclusion to the contrary. In effect, it is therein provided that such a warranty exists: "(1) Where 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."

However, the respondent Duchess Sandwich Company, in effect, contends that the implied warranty created by the statute contemplates the existence of a warranty running only from an immediate seller to an immediate buyer. It is clear that were this contention to be upheld in the instant case, the resultant ruling would be that no recovery could be had against the manufacturer on the warranty theory because there was no privity of contract between either of the plaintiffs on the one hand, and the manufacturer Duchess Sandwich Company on the other, by reason of the fact that defendant Kilpatrick--and not the defendant manufacturer--was the "immediate seller" in the transaction involved. The respondent sandwich company further contends, in effect, that, since by the language of the statute the warranty ran only in favor of the "buyer", and inasmuch as the husband was such immediate "buyer", no privity of contract existed between the wife and the "seller",--and that, consequently, no liability on the implied warranty theory was created in favor of the wife.

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In view of the fact that the question concerning a manufacturer's liability to an ultimate purchaser or consumer on a warranty as to the fitness of food manufactured by it heretofore has not been passed upon directly by this court, and because of the fact that in some of the other jurisdictions which also have adopted the Uniform Sales Act, of which section 1735, Civil Code, is a part, the several courts recently have given considerable attention to the problem, it is deemed expedient at this time, in the light of those...