Bergantino v. General Baking Co.

• Decision Date: 06 July 1937
• Citation: 298 Mass. 106,9 N.E.2d 521
• Parties: CARMELA BERGANTINO v. GENERAL BAKING COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 106

9 N.E.2d 521

CARMELA BERGANTINO v. GENERAL BAKING COMPANY.

Supreme Judicial Court of Massachusetts, Middlesex.

July 6, 1937

May 13, 14, 1937.

Present: RUGG, C.

J., CROSBY DONAHUE, LUMMUS, & QUA, JJ.

Negligence, In manufacture of food. Food.

Evidence that a pie was sold by the maker to a retailer and on the same day was bought and in part eaten by a customer who soon after became sick, that the next day it was found to be "all moulded kind of green color," and that its condition was not caused by the retailer or the customer, warranted a finding that the maker was negligent.

TORT. Writ in the Superior Court dated May 5, 1933. A verdict for the defendant was ordered by Donahue, J. The plaintiff alleged an exception.

B. J. Killion &amp J.

F. Connolly, for the plaintiff, submitted a brief.

R. J. Lavelle, for the defendant.

CROSBY, J. This is an action of tort for personal injuries, alleged to have been sustained by the plaintiff as a result of eating unwholesome apple pie manufactured by the defendant. The plaintiff does not rely on a breach of warranty, as she had no direct contractual relations with the defendant, having purchased the pie from a retail distributor. Roberts v. Anheuser Busch Brewing Association, 211 Mass. 449 , 451. Gearing v. Berkson, 223 Mass. 257, 260. Newhall v. Ward Baking Co. 240 Mass. 434 , 436. Carlson v Turner Centre System, 263 Mass. 339 . In order to entitle the plaintiff to recover, she must prove that her injuries were caused by the negligence of the defendant in the manufacture or handling of the food which she purchased and consumed. As a manufacturer of foodstuffs, the defendant is held to a high degree of care to avoid injury to the health of consumers. Wilson v. J. G. & B. S. Ferguson Co. 214 Mass. 265 . Tonsman v. Greenglass, 248 Mass. 275 . Richenbacher v. California Packing Corp. 250 Mass 198 . Sullivan v. Manhattan Market Co. 251 Mass.

395, 396. Doyle v. Continental Baking Co. 262 Mass. 516 . Flynn v. First National Stores Inc. 296 Mass. 521 . The only exception saved by the plaintiff was to the direction of a verdict for the defendant; therefore it is necessary to decide merely whether there was sufficient evidence of negligence of the defendant to warrant the submission of this issue to the jury. Salem Trust Co. v. Deery, 289 Mass. 431 , 433.

There was evidence as follows: On June 4, 1932, the plaintiff went to work without her breakfast. At noon she went to the hospital to see her nephew, and had no luncheon. She remained at the hospital until late in the afternoon, and on her way home she purchased a "Smax" apple pie at the store of one Vecchiarelli. At home she consumed some of the pie, together with a glass of milk. She thought the pie "tasted funny" but she "thought that it might be her mouth because she hadn't eaten anything before on that day." Before eating the pie she felt well but several hours thereafter she suffered from abdominal cramps and vomiting. The doctor who attended her found her suffering from abdominal cramps, diarrhea, vomiting and fainting spells. He diagnosed her illness as food poisoning caused by "eating of the putrid pie." She was unable to do any work for about three weeks thereafter. Although she testified that she did not feel well for almost a year after her illness; her doctor testified that her sickness after her return was due to other causes. The pie was of the defendant's manufacture, and when purchased by the plaintiff was in a "paper envelope-like bag with the word `Smax' and the words `General Baking Company' printed on it. . . ." It had been delivered by the defendant's salesman at Vecchiarelli's grocery store on the morning of the day on which the plaintiff purchased it. Between the time of the delivery and the sale to the plaintiff it was left on top of the show case in the store. On the morning after the plaintiff became sick the pie was examined by the plaintiff's husband, her doctor, and the storekeeper. It was "in the ice chest" in the plaintiff's home. They discovered that beneath the top crust the pie "was all moulded, kind of green color."

The doctor described the pie as "putrid" and explained that he meant by that "Anything which is contaminated with a foreign substance, which foreign substance may be meat or food."

There was ample...