Botti v. Venice Grocery Co.

• Decision Date: 30 June 1941
• Citation: 35 N.E.2d 491,309 Mass. 450
• Parties: BOTTI v. VENICE GROCERY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 450

35 N.E.2d 491

BOTTI

v.VENICE GROCERY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1941.

Exceptions from Superior Court, Suffolk County; Goldberg, Judge.

Action of contract by Andrew Botti against the Venice Grocery Company to recover for injuries sustained on eating macaroni purchased from defendant. To the denial of its motion for directed verdict and to the refusal to give certain requests, defendant took exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and QUA, DOLAN, and COX, JJ.

G. Broomfield and A. A. Giddon, both of Boston, for plaintiff.

P. S. Ratzkoff, of Boston, for defendant.

COX, Justice.

The jury returned a verdict for the plaintiff in this action of contract. There was evidence that the plaintiff purchased some packages of macaroni at one of the defendant's stores; that he ate some from one package after it had been cooked; that it tasted ‘strong or bad’; that about an hour to an hour and a half later he became ill; that the macaroni was eaten ‘plain,’ with no sauce, tomatoes or pate; that he ate nothing else at the time but drank some coffee, and that his wife and three children, who also ate nothing but the macaroni, were also ill. The defendant's exceptions are to the denial of its motion for a directed verdict, and to the refusal of the trial judge to give the following requests for rulings: ‘1. On all the evidence the plaintiff is not entitled to recover. 2. The plaintiff has failed to prove by a fair preponderance of the evidence that the macaroni which was alleged to have been sold to him by the defendant was not fit for human consumption.’

When the plaintiff was asked to tell what happened when he bought the macaroni, he testified that he went in, ‘I say, ‘Give me three boxes macaroni,’ that's all'; that he told what kind of macaroni he wanted, and said that he wanted ‘three boxes of La Rosa macaroni.’ The plaintiff contends that, upon this evidence, on the ground that his testimony was conflicting, the jury could have found that he did not ask for ‘La Rosa’ macaroni. See Tierney v. Boston Elevated Railway, 216 Mass. 283, 286, 103 N.E. 783;Bennett v. Fitzgerald, 284 Mass. 535, 537, 188 N.E. 247. But we are of opinion that there is nothing inconsistent or contradictory in this testimony, and we think it follows from it that the plaintiff must be held to have asked for and purchased ‘La Rosa’ macaroni. See Dorman v. Worcester Consolidated Street Railway, 277 Mass. 95, 96-98, 177 N.E. 812.

We think there was no error in the denial of the second request, although there was evidence from which it might have been found that there was practically no chance for the macaroni in question to be unfit for human consumption, and that if it were boiled for ten or fifteen minutes, that would kill any ‘organism’ that might be present. Nevertheless, we are of opinion that the jury could have found, upon the plaintiff's testimony, that it was the unwholesome condition of the macaroni that caused his illness, Johnson v. Kanavos, 296 Mass. 373, 375, 6 N.E.2d 434; Flynn v. Growers Outlet, Inc., 307 Mass. 373, 376, 377, 30 N.E.2d 250, and, from other evidence, that he would not have been made ill unless the macaroni was unwholesome. It could have been inferred from evidence as to the ingredients of the macaroni, the method of manufacture and its preparation for sale in packages, that it ought not to be unwholesome and that it would not cause illness unless it were. The defendant contends that the plaintiff has not sustained the burden of showing that the macaroni was subjected to ordinary household cooking. See Holt v. Mann, 294 Mass. 21, 24, 200 N.E. 403;Horton v. North Attleborough, 302 Mass. 137, 143, 19 N.E.2d 15. It is true that if the jury had believed the evidence of a pathologist, called by the defendant, an inference might have been drawn that there was a possibility that ‘organizm[s]’ might be present in macaroni. Apart from this, it does not appear that cooking is necessary unless it is to make the macaroni palatable. But for that matter, the evidence discloses that the plaintiff's wife ‘cooked’ the macaroni that was eaten. In the circumstances, we are of opinion that the inference reasonably could be drawn that she knew how to cook it.

The plaintiff, in his declaration, apparently relied upon the breach of the implied warranty under G.L.(Ter.Ed.) c. 106, § 17(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.’ We are of opinion, however, that the plaintiff did not rely on the seller's skill or judgment. He asked for three packages of ‘La Rosa’ macaroni. He received what he asked for. He made his own choice and used his own judgment. It may be assumed, from the facts that the jury could have found, that the transaction between the plaintiff and the defendant necessarily involved a purchase of food to be eaten, although nothing was said about the proposed use of the macaroni, Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 92, 120 N.E. 225, 5 A.L.R. 242; Holt v. Mann, 294 Mass. 21, 23, 24, 200 N.E. 403, and although the customer ordinarily is bound to rely upon the skill and experience of the seller in determining the kind of goods in packages that he will purchase, this does not follow where he demands goods of a definite brand or trade name, in the absence of knowledge of the dealer that the goods are unsound or unwholesome. Farrell v. Manhattan Market Co., 198 Mass. 271, 279-281, 84 N.E. 481, 15 L.R.A.,N.S., 884, 126 Am.St.Rep. 436,15 Ann.Cas. 1076;Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 92, 93, 120 N.E. 225, 5 A.L.R. 242. Furthermore, under said section 17(4) there is no implied warranty as to fitness for any particular purpose in the case of a contract to sell or a sale of a specified article under its patent or other trade name. In the circumstances disclosed, it could not have been found that the choice of the macaroni was left to the defendant where, as here, it is apparent that the judgment of the defendant was superseded and the choice determined by the plaintiff. Whitty Manuf. Co., Inc. v. Clark, 278 Mass. 370, 375, 376, 180 N.E. 315, and cases cited. Smith v. Denholm & McKay Co., 288 Mass. 234, 242, 192 N.E. 631;Ryan v. Progressive Grocery Stores, Inc., 255 N.Y. 388, 390, 391, 175 N.E. 105, 74 A.L.R. 339. Compare Weiner v. D. A. Schulte, Inc., 275 Mass. 379, 383, 176 N.E. 114.

G.L.(Ter.Ed.) c. 106, § 17(2), provides that ‘Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that they shall be of merchantable quality.’ We are of opinion that, although the plaintiff may not recover under said section 17(1), for reasons already stated, he is not thereby necessarily precluded from recovering if a breach of the implied warranty under clause (2) is made out. It is to be observed that, by the provisions of said clause (2), the seller may be ‘the grower or manufacturer or not.’ In the case of Inter-State Grocer Co. v. George William Bentley Co., 214 Mass. 227, 101 N.E. 147, the sale in question occurred before the adoption of the uniform sales act, but it was said of a sale of goods by name or description that, in the absence of some other controlling stipulation in the contract, a condition is implied that the goods shall be merchantable under that name. ‘They must be goods known in the market and among those familiar with that kind of trade by that description, and of such quality as to have value. This is not a warranty of quality. It does not require any particular grade. It is a requirement of identity between the thing which is described as the subject of the trade and the thing proffered in performance of it. The buyer is entitled to receive goods fairly answerable to the description contained in his contract of sale. It does not matter whether the deleterious characteristic is latent or obvious, provided it goes to the extent of changing the nature of the goods, so that they have no value in the market under the designation contained in the contract of sale. * * * This being the governing principle, it is of no consequence whether the seller is a manufacturer or not, or whether the defect is hidden or discoverable by inspection. Upon a sale even by a casual owner of sardines, he is bound to deliver something which answers that description in the trade. If he does not, he does not perform his contract.’ Page 231 of 214 Mass.,page 149 of 101 N.E. and cases cited. It is pointed out, at pages 231 and 232 of 214 Mass.,101 N.E. 147, that this rule is quite apart from instances where the sale is of specifically defined goods, whether open to the inspection of the parties or not, where the rule of caveat emptor governs, and that it is distinct also from a sale for a particular purpose or where the buyer relies upon the skill and knowledge of the seller. In Friend v. Childs Dining Hall Co. 231 Mass. 65, at page 71, 120 N.E. 407 at page 409,5 A.L.R. 1100 it was said that ‘Food for immediate use which is not fit to eat is not merchantable as food.’ In W. R. Grace & Co. v. National Wholesale Grocery Co., Inc., 251 Mass. 251, 146 N.E. 908, the sale was of ‘Brazilian Washed Sugar’ to be shipped from Brazil. It was...