Bell v. S. S. Kresge Co., 24988.

• Decision Date: 06 June 1939
• Docket Number: No. 24988.,24988.
• Citation: 129 S.W.2d 932
• Parties: BELL v. S. S. KRESGE CO.
• Court: Missouri Court of Appeals

129 S.W.2d 932

BELL v. S. S. KRESGE CO.

No. 24988.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Rehearing Denied June 20, 1939.

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be published in State Reports."

Action by Sue Bell against the S. S. Kresge Company for personal injuries caused by swallowing pieces of glass in soup purchased by plaintiff in defendant's restaurant. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Wayne Ely, of St. Louis (Leahy, Walther, Hecker & Ely, of St. Louis, of counsel), for appellant.

Paul M. Patton and H. P. Tudor, both of St. Louis (William H. Tombrink, of St. Louis, of counsel), for respondent.

SUTTON, Commissioner.

This action is for the recovery of $750 as damages for personal injuries. The action was commenced before a justice of the peace. Plaintiff in her statement filed with the justice alleges that on March 16, 1936, while a patron in defendant's restaurant, she purchased of defendant a bowl of soup, represented by defendant to be pure and wholesome and fit for human consumption, and that, relying on said representations, and while eating said soup, she bit down upon and swallowed pieces of glass negligently caused, suffered and permitted to be in said bowl of soup, and that as a result thereof she sustained serious, painful and permanent injuries and nervous shock, and lost the earnings of her labor and incurred medical expenses in the treatment of said injuries.

There was a judgment for plaintiff in the justice court, from which defendant appealed to the circuit court. The trial in the circuit court, with a jury, resulted in a verdict in favor of plaintiff for $750. Judgment was given accordingly, and defendant appeals.

Error is assigned by defendant here for the refusal of its instruction in the nature of a demurrer to the evidence.

The assignment is put on the grounds (1) that plaintiff's action is based on negligence, and there is no showing that defendant was negligent, and (2) that there was no showing that plaintiff swallowed any glass and no showing of a causal connection between the glass in the soup and the condition of which plaintiff complains.

Plaintiff testified as follows: "On March 16, 1936, my daughter and I were in defendant's store at the lunch counter. I ordered some vegetable soup. I ate most of the bowl of soup and came down biting the vegetables. I bit down on something hard. I took it out of my mouth and swallowed, and it was a long piece of glass large at one end and it came to a sharp point at the other. It was not of the same material as the dish was made of. I showed it to the girl at the counter, who kept it. I told her that there was glass in that soup and she took it and looked at it. I told her my mouth was hurt, didn't feel very good. She asked me if I wanted to go to a hospital or a doctor, and I told her I thought it would be all right, and we left. Just after I left the counter I noticed my tongue was cut and my throat was stinging on the right side inside, and it was stinging me on the way home, and when I went to eat my evening meal it still bothered me, and I thought if I had swallowed any I had better take some kind of medicine, and I took a dose of Milk of Magnesia, and for several days I took Milk of Magnesia and Epsom Salts. I had a vomiting spell accompanied with pain in my stomach, and I went to Dr. R. A. Walther's office the next day. He looked at my mouth and throat. I told him I couldn't keep any food on my stomach and he gave me some medicine to take. I got down sick in bed and called him to the house when I vomited. My throat hurt me several days, kept stinging and bothering me. I didn't feel any pain at the time I swallowed the glass, only my throat started stinging and my tongue was cut. My throat hurt every day, but quit two, three, or four days before I had the stomach ache. My throat was stinging and hurting, and I thought there was something lodged in there. I had taken salts before and it didn't make my stomach hurt that I remember, but I hadn't taken any for a long time. I had taken Milk of Magnesia before too. I know the glass was crushed in my mouth and the one piece was the only piece I got out of my mouth. I suppose the rest went down with the food. When I took out the piece of glass I went ahead and swallowed the rest. I know whether I swallowed glass because I crushed it in my mouth and could feel it and heard it. I still have a nervous stomach and get frightened easy. None of that nervous trouble started until eight days after I ate the soup. My health was good prior to March 16, 1936. I had an operation eight or ten years before from which I recovered and the condition of my health, digestion and nervous system had been all right. I never had any vomiting spells and was not subject to them. I never had any somach trouble."

Doris Bell testified, for plaintiff, as follows: "I went with my mother to the Kresge store for lunch. She had a bowl of soup and along towards the bottom of the bowl she bit down on a piece of glass which she took from her mouth and gave to the waitress. It was round on one end and had a sharp point on the other. On the way home and after we got home mother complained of a stinging sensation in her throat and mouth and afterwards she was sick at her stomach and had vomiting spells. I don't recall how long after March 16th it was that she became sick at her stomach. She was well before then and had no stomach trouble. I have noticed a difference in her since. She had vomiting spells and was quite nervous and was confined to her bed for about a week."

Dr. Roy A. Walther testified, for plaintiff, as follows: "Some time after March 16, 1936, plaintiff came to see me complaining of serious pains in her abdomen. I saw her at my office and at her home. She complained of sharp severe pains in her abdomen and seemed to be extremely nervous. She gave a history that she had a few days previous eaten some soup and found some glass in the soup; that some of it had scratched her mouth and had hurt her throat. She said a few days before that she had a hurting in her throat and now complained of a sharp pain down in her abdomen. I gave her sedatives and told her to watch her diet. I saw her the first time around the 18th or 19th of March. She gave a history of vomiting and a few days later she gave a history of vomiting and severe pains in her abdomen, which continued for some time. I judge I saw her about ten or twelve times, maybe more. When she first came to see me she said her throat hurt her and she said she had sharp pains in her stomach before she came to see me, something like a day or so. I couldn't recall how long she said. If you swallow glass it causes quite a little pain in the stomach. You should have pain there within three to five hours after it was in the stomach. As to how long it takes to get in the stomach that depends. If it happened to lodge on the way down it might take some time to get there. If it did lodge somewhere it would cause pain where it lodged. She said she had pain in her throat. If any glass had lodged in her throat for several days until the day she came to see me you would probably see some cut or laceration. You might or you might not. I did not discover any."

Beulah Schumacher testified, for defendant, as follows: "I was employed as a waitress at the Kresge store on March 16, 1936. Florence Wilcox waited on Mrs. Bell, and told me that Mrs. Bell said she found a piece of glass in her soup. I asked Mrs. Bell if she was hurt and she said she wasn't. I don't know where the piece of glass could have come from. The soup is made in the kitchen in a metal pot and brought to the steam table in a smaller pot from which it is dipped into the bowls. There is no glass anywhere near around it. There is no reason why it should get in there. From the time it comes out to the counter it is in metal containers."

Florence Wilcox testified, for defendant, as follows: "I formerly worked at Kresge's store and served Mrs. Bell with a bowl of soup on March 16, 1936. She gave me a piece of crockery that she said she found in the bowl of soup. I asked her if her mouth was cut and she said `No.' She said she did not want medical attention, that she didn't think that was necessary, that she wasn't hurt, but just wanted to call that to my attention. The bowl was not chipped, and there was no crockery or glassware or dishes of any kind in our kitchen, and there was no such pottery or glassware anywhere around there."

A report of an examination made by Dr. William J. Gallagher on May 20, 1936, was read in evidence. The report recites inter alia as follows: "Patient states that on March 16, 1936, while eating some vegetable soup at Kresge's store she crushed a piece of glass that was in the soup between her teeth. She took a piece of glass about the size of the tip of her small finger out of her mouth and swallowed some of the crushed glass. She did not spit up any blood. The left side of her tongue and the right side of her throat were sore and felt as if they were cut. During the week she took Milk of Magnesia and salts. She ate normally, but sour and bitter foods would cause her mouth and stomach to hurt. One night a week after she had eaten the glass, she was awakened by a severe pain in the pit of her stomach. This pain doubled her up. She rolled about in bed for about one hour. She vomited some undigested food and mucous. She has had several of these attacks since. At the present time she states she feels weak all the time, very nervous, and has a tingling hot feeling in her legs, arms and back. She has been very irritable. She states her stomach has...