Adams v. Great Atlantic & Pacific Tea Co., 607

• Decision Date: 14 January 1960
• Docket Number: No. 607,607
• Court: North Carolina Supreme Court
• Parties: C. Robert ADAMS v. GREAT ATLANTIC & PACIFIC TEA CO.

Page 92

112 S.E.2d 92

251 N.C. 565

C. Robert ADAMS v. GREAT ATLANTIC & PACIFIC TEA CO.

No. 607

Supreme Court of North Carolina.

Jan. 14, 1960

Rollins & Rollins, Greensboro, for plaintiff, appellant.

McLendon, Brim, Holderness & Brooks by L. P. McLendon, Jr., and C. T. Leonard, Jr., Greensboro, for defendant, appellee.

PARKER, Justice.

On 10 November 1958, plaintiff bought from one of defendant's stores a box of Kellogg's Corn Flakes in a sealed package. On the morning of 14 November 1958, while eating in his home a bowl of corn flakes taken from this package, he bit down on something very hard, breaking off part of an eyetooth. The breaking of the tooth exposed a nerve, causing him considerable pain. The same morning he had the rest of the tooth extracted.

When he bit on this object, he spit it out, examined it, and found that it was a little brown, hard, crystal-like object. A chemical analysis of this object showed that it was part of a grain of corn that had partially been crystalized. It had been reduced from its normal state of a grain of corn to a state as hard as a piece of quartz. He had never seen any particle of this size in corn flakes before.

Plaintiff testified on cross-examination: 'The balance of the box of corn flakes remained in my home after the accident and it was consumed by my family. * * * My sole contention is that this particle of corn is a deleterious or unwholesome substance that was contained in the corn flakes. * * * I and my family eat hamburger meat, fish and chicken, things of that nature. I have on occasion bitten into a cherry pit or seed pit in eating cherry preserves, or something of that sort.'

We held in Rabb v. Covington, 215 N.C. 572, 2 S.E.2d 705, that when a retail merchant sells food in a sealed package to a customer there is an implied warranty of fitness for human consumption. In this case the 'wieners' or sausages sold were in a casing, which plaintiff conceded constituted a sealed container, and had in them pieces of metal. Upon authority of Rabb v. Covington, a nonsuit was held improper in Williams v. Elson, 218 N.C. 157, 10 S.E.2d 668, where defendant sold plaintiff for consumption a barbecued beef sandwich containing glass. In Davis v. Radford, 233 N.C. 283, 63 S.E.2d 822, 24 A.L.R.2d 906, plaintiff sued Radford, a retail druggist, for breach of an implied warranty of wholesomeness in the sale to his intestate of an article for human consumption known as 'Westsal,' a salt substitute, which he alleged contained poisonous ingredients. In this case the Court recognized as applicable the doctrine of implied warranty.

Defendant in its brief states: 'Defendant does not question the existence of an implied warranty that the corn flakes sold were fit for human consumption but urges that 'the warranty must be reasonably construed in the light of common knowledge in reference to the nature of the article sold.' Cavanagh v. [F. W.] Woolworth Co., 308 Mass. 423, 32 N.E.2d 256.'

In the Cavanagh case the article sold was a rubber stopper to be used in bottles containing gas charged or carbonated beverages. The Court held that the seller did not, by virtue of statutory implied warranty of fitness for intended use, become an insurer that the stopper could be used with absolute safety, and stopper was not required to be perfectly adapted for its intended use but only reasonably fit therefor.

Plaintiff's case is based upon the presence in the corn flakes he was eating of part of a grain of corn that had partially been crystalized, and thereby reduced from its normal state of a grain of corn to a state as hard as quartz, that is the presence of a substance natural to the corn flakes, and not removed therefrom in the process of its preparation for human consumption, and he contends that this constituted a breach of defendant's implied warranty of reasonable fitness of the corn flakes for human consumption. His is not a case of a foreign object, like glass, a piece of metal, etc., in the corn flakes, or of the corn flakes being decayed, diseased, or in a spoiled and poisonous condition.

Defendant contends that its implied warranty only extends to cases where foreign matter is contained in the food, or where the food is diseased, decayed, or otherwise in a spoiled or poisonous condition, and does not extend to the facts here.

Plaintiff states in his brief 'there was no evidence presented on the composition of the cereal.' However, plaintiff introduced in evidence the package bearing the label 'Kellogg's Corn Flakes,' which he bought from defendant. Webster's New International Dictionary, 2nd Ed., gives this definition of cereal: '2. A prepared foodstuff of grain, as oatmeal or flaked corn, used especially with milk or cream as a breakfast food.' In our opinion, plaintiff's evidence shows these corn flakes were made from corn.

36 C.J.S. Foreign, pp. 1247-1248, defines foreign substance: 'A substance occurring in any part of the body or organism where it is not normally found, usually introduced from without.' A sliver of bone in a pork chop was held not a foreign substance to a pork chop in Brown v. Nebiker, 229 Iowa 1223, 296 N.W. 366.

In Mix v. Ingersoll Candy Co., 6 Cal.2d 674, 59 P.2d 144, 147, plaintiff was injured by swallowing a fragment of chicken bone, while eating a chicken pie at a restaurant. The Supreme Court sitting in bank, while agreeing that there was an implied warranty of fitness on such a sale by a restaurateur by virtue of their Uniform Sales Act, held that such a warranty was not breached by the presence of the bone in the chicken pie. The Court said: 'Bearing in mind the exact wording of section 1735 of the Civil Code whereby the implied warranty is imposed upon a restaurant keeper, is there an obligation imposed by the statute upon a restaurant keeper to furnish perfect food to his patrons at all hazards; that is to say, is his obligation that of an absolute insurer of his food? The answer, in our opinion, must be in the negative. The words of the Code section are that the food furnished by the restaurant keeper shall be 'reasonably' fit for such purpose--human consumption. It may well happen in many cases that the slightest deviation from perfection may result in the failure of the food to be reasonably fit for human consumption. On the other hand, we are of the opinion, that in certain instances a deviation from perfection, particularly if it is of such a nature as in common knowledge could be reasonably anticipated and guarded against by the consumer, may not be such a defect as to result in the food being not reasonably fit for human consumption. The facts presented in the instant case we think present such a situation. We have examined a great many cases dealing with the question of the liability of restaurant keepers which arose out of the serving of food which was held to be unfit for human consumption, and we have failed to find a single case in which the facts are similar to the instant case, or in which a court has extended the liability based upon an implied warranty of a restaurant keeper to cover the presence in food of bones which are natural to the type of meat served. All of the cases are instances in which the food was found not to be reasonably fit for human consumption, either by reason of the presence of a foreign substance, or an impure and noxious condition of the food itself, such as for example, glass, stones, wires or nails in the food served, or tainted, decayed, diseased, or infected meats or vegetables. Although it may frequently be a question for a jury as the trier of facts to determine whether or not the particular defect alleged rendered the food not reasonably fit for human consumption, yet certain cases present facts from which the court itself may say as a matter of law that the alleged defect does not fall within the terms of the statute. It is insisted that the court may so determine herein only if it is empowered to take judicial notice of the alleged fact that chicken pies usually contain chicken bones. It is not necessary to go so far as to hold that chicken pies usually contain chicken bones. It is sufficient if it may be said that as a matter of common knowledge chicken pies occasionally contain chicken bones. We have no hesitancy in so holding, and we are of the opinion that despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. At least he cannot hold the restaurant keeper whose representation implied by law is that the meat dish is reasonably fit for human consumption, liable for any injury occurring as a result of the presence of a chicken bone in such chicken pie. In the case of Goetten v. Owl Drug Co., , 59 P.2d 142, this day decided, we held that the application of the rule of implied warranty might impose a heavy burden upon the keeper of restaurants and lunch counters, but that considerations of public policy and public health and safety are of such importance as to demand that such obligation be imposed. This is true, but we do not believe that the onerous rule should be carried to absurd limits. Certainly no liability would attach to a restaurant keeper for the serving of a Tbone steak, or a beef stew, which contained a bone natural to the type of meat served, or if a fish dish should contain a fish bone, or if a cherry pie should contain a cherry stone--although it be admitted that an ideal cherry pie would be stoneless. The case of a chicken bone in a chicken pie is, in our opinion, analogous to the cited examples, and the facts set forth in the first count of the complaint do not state a cause of action.'

The holding of the Supreme Court in th...