341 Mass. 216 (1960), Sullivan v. H. P. Hood & Sons, Inc.

Citation341 Mass. 216, 168 N.E.2d 80
Party NameBertha L. SULLIVAN v. H. P. HOOD & SONS, Inc., et al.
Case DateJune 23, 1960
CourtSupreme Judicial Court of Massachusetts

Page 216

341 Mass. 216 (1960)

168 N.E.2d 80

Bertha L. SULLIVAN

v.

H. P. HOOD & SONS, Inc., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1960

Argued April 5, 1960.

[168 N.E.2d 82] John F. Finnerty, Boston, for plaintiff.

Philander S. Ratzkoff and Thomas R. Morse, Jr., Boston, for defendants.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ.

Page 217

WILKINS, Chief Justice.

The plaintiff drank milk from a container in which was a dead mouse. In this action of contract or tort the first count against H. P. Hood & Sons, Inc., the producer, is based upon negligence. The second count against B. J. Lang's Provision Company, Inc., which sold the container of milk, is for breach of warranty of merchantability. G.L. c. 106, § 17(2). [*] The case was first heard by an auditor whose findings of fact were not to be final. He found for the plaintiff on both counts. At a trial in the Superior Court the jury returned a verdict for the plaintiff on each count. The defendants excepted to the denial of motions for directed verdicts and to the denial of a motion to strike certain findings of the auditor. On the second count there is a contention in the alternative that the plaintiff is entitled, at most, to nominal damages.

We first set forth 'preliminary findings of fact' of the auditor. The plaintiff was a widow residing in Pembroke. Living with her was her unmarried adult son John. On Sunday, March 14, 1954, he purchased at Lang's market a quart of Hood's milk in a cardboard container, which was sealed. The top of the container was flat, and at one corner was a round hole through which the milk could be poured. This opening had a hinged cardboard cover. The son frequently made purchases for his mother, sometimes paying cash and sometimes charging to her account. As to his testimony that he did not remember which he did this time, the auditor stated, 'I am convinced by further testimony, and I so find, that this purchase was for the use in the household by both John' and his mother.

The container was placed unopened in the plaintiff's refrigerator. On Monday morning the plaintiff took out the carton and poured some milk in a cup of coffee, which she drank. She then replaced the carton in the refrigerator. An hour later, about 9 a. m., she took out the carton and poured a glass of milk, which she drank, and then returned

Page 218

the carton to the refrigerator. About 9:50 a. m. she again removed the carton from the refrigerator and poured another glass which she drank. As she was drinking the second glass, she felt some 'little stuff' go into her mouth and down her throat. Each of the two previous times when she had any of the milk 'she felt that there was a 'funny feeling in the carton." After pouring the second glass, she felt as if something was moving inside it. She poured most of the milk in the sink, and saw 'a lot of 'little things' in it.' When she poured out all the milk, she saw a dead mouse in the carton.

After a moment she started toward the telephone to call her daughter, but 'she began to sweat and her stomach turned and she found that she couldn't get to the phone.' She put her head on the kitchen table and slept from about 10 o'clock until about 2 o'clock. She then answered a telephone call from her daughter, who came to the house in five or six minutes. The plaintiff told the daughter what had happened and fell asleep in a chair. She 'sleptmost all that evening and night and all the next day. During this time she broke into about fifteen or twenty sweats.' On Tuesday night she itched, and on Wednesday morning there was a rash all over her body, face, and hands. The rash subsequently turned into sores. 'During the first six weeks she had fifteen or twenty sweats every day and she itched. The itching interfered with her sleep.' She was nauseated. Since March 15, 1954, the plaintiff has had no milk. When she thinks of the [168 N.E.2d 83] incident, as she does frequently, her stomach turns

We omit the auditor's descriptions of the expert medical opinions given on behalf of the plaintiff or the defendants. The 'preliminary findings' lack any clearcut statement of fact based upon such testimony. These descriptions are, for...

To continue reading

Request your trial
25 practice notes
  • 355 Mass. 604 (1969), Kenney v. Sears, Roebuck & Co.
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • April 9, 1969
    ...dealings with Sears. See Kennedy v. Brockelman Bros. Inc., 334 Mass. 225, 227, 134 N.E.2d 747; Sullivan v. H. P. Hood & Sons, Inc., 341 Mass. 216, 223, 168 N.E.2d 80. We assume that if Mrs. Copanas' claim under count 3 had been based on negligence on the principles of Carter v. Yardley ......
  • 269 A.2d 117 (Me. 1970), Wallace v. Coca-Cola Bottling Plants, Inc.
    • United States
    • Maine Supreme Judicial Court of Maine
    • September 17, 1970
    ...door for unjust claims, which could not successfully be met.' More recently Spade was reaffirmed in Sullivan v. H. P. Hood & Sons, 341 Mass. 216, 168 N.E.2d 80 (1960). In that case, an able opinion by Mr. Chief Justice Wilkins, the Court declared: 'We have not been asked to overrule the......
  • 1 Mass.App.Ct. 573 (1973), McDonough v. Whalen
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • December 4, 1973
    ...otherwise established. Spade v. Lynn & Boston R.R., 168 Mass. 285, 290, 47 N.E. 88 (1897). Sullivan v. H. P. Hood & Sons, Inc., 341 Mass. 216, 221--223, 168 N.E.2d 80 (1960). This is not a case of intentional or reckless conduct which is extreme and outrageous. George v. Jordan Mars......
  • 341 Mass. 246 (1960), Stone v. City of Springfield
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • June 24, 1960
    ...may recover under G.L. c. 60, § 98, a tax paid by him, as a void tax, or may receive an abatement by proceeding under c. 59, § 59, [168 N.E.2d 80] and related sections. The facts alleged in this case do not make it necessary to decide whether the illegality of such assessments makes them vo......
  • Request a trial to view additional results
25 cases
  • 355 Mass. 604 (1969), Kenney v. Sears, Roebuck & Co.
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • April 9, 1969
    ...dealings with Sears. See Kennedy v. Brockelman Bros. Inc., 334 Mass. 225, 227, 134 N.E.2d 747; Sullivan v. H. P. Hood & Sons, Inc., 341 Mass. 216, 223, 168 N.E.2d 80. We assume that if Mrs. Copanas' claim under count 3 had been based on negligence on the principles of Carter v. Yardley ......
  • 269 A.2d 117 (Me. 1970), Wallace v. Coca-Cola Bottling Plants, Inc.
    • United States
    • Maine Supreme Judicial Court of Maine
    • September 17, 1970
    ...door for unjust claims, which could not successfully be met.' More recently Spade was reaffirmed in Sullivan v. H. P. Hood & Sons, 341 Mass. 216, 168 N.E.2d 80 (1960). In that case, an able opinion by Mr. Chief Justice Wilkins, the Court declared: 'We have not been asked to overrule the......
  • 1 Mass.App.Ct. 573 (1973), McDonough v. Whalen
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • December 4, 1973
    ...otherwise established. Spade v. Lynn & Boston R.R., 168 Mass. 285, 290, 47 N.E. 88 (1897). Sullivan v. H. P. Hood & Sons, Inc., 341 Mass. 216, 221--223, 168 N.E.2d 80 (1960). This is not a case of intentional or reckless conduct which is extreme and outrageous. George v. Jordan Mars......
  • 341 Mass. 246 (1960), Stone v. City of Springfield
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • June 24, 1960
    ...may recover under G.L. c. 60, § 98, a tax paid by him, as a void tax, or may receive an abatement by proceeding under c. 59, § 59, [168 N.E.2d 80] and related sections. The facts alleged in this case do not make it necessary to decide whether the illegality of such assessments makes them vo......
  • Request a trial to view additional results