Bonenberger v. Pittsburgh Mercantile Co.

• Decision Date: 25 November 1942
• Parties: BONENBERGER et al. v. PITTSBURGH MERCANTILE CO.
• Court: Pennsylvania Supreme Court

28 A.2d 913

BONENBERGER et al.
v.
PITTSBURGH MERCANTILE CO.

Supreme Court of Pennsylvania.

Nov. 25, 1942.

Appeal No. 186, March term, 1942, from judgment of Court of Common Pleas, Allegheny County, No. 777, July term, 1940; Thomas M. Marshall, Judge.

Action in assumpsit by Ida Bonenberger and her husband against the Pittsburgh Mercantile Company, a retail dealer in foodstuffs, to recover, on theory that there had been a breach of warranty in the sale of oysters, for injuries sustained when the named plaintiff swallowed a sharp oyster shell while preparing oyster stew from canned oysters purchased from the defendant. From a judgment directing a verdict for the defendant, the plaintiffs appeal.

Judgment reversed and cause remanded.

Before SCHAFFER, C. J., and MAXEY, DREW, LINN, STERN, PATTERSON, and PARKER, JJ.

28 A.2d 914

J. Thomas Hoffman and N. J. Lippard, both of Pittsburgh, for appellants.

William A. Challener and William A. Challener, Jr., both of Pittsburgh, for appellee.

PARKER, Justice.

This is an action in assumpsit for breach of warranty on a sale of oysters in a sealed container by a retail dealer in foodstuffs. The court below gave binding instructions for defendant and the plaintiffs have appealed. We are of the opinion that, viewing the evidence in a light most favorable to the plaintiffs, the judgment should not have been entered.

Ida Bonenberger, the wife of Jacob Bonenberger, ordered from defendant by telephone a pint of canned oysters which were delivered at their home the following day. In preparing an oyster stew for the family, the wife emptied the can of oysters in a pan of milk. Thereafter in tasting the broth for seasoning she swallowed a sharp oyster shell about the size of a twenty-five cent coin. The shell lodged in her esophagus and necessitated an operation for its removal under a general anesthetic. It was shown that defendant had purchased the can of oysters from Live Fish Company of Pittsburgh who in turn had purchased it from the packer in Maryland. It is conceded that the oysters themselves were wholesome and fit for consumption.

Plaintiffs depend for a right of recovery on § 15 of the Sales Act of May 19, 1915, P.L. 543, 69 P.S. § 124. It is there provided that "there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: First. Where a 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. Second. 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 the goods shall be of merchantable quality."

The seller's obligation in this suit is not based on negligence but upon warranty: 1 Williston on Sales, 2d Ed., § 237. This action being on a warranty and not in trespass for negligence, the tort cases heretofore decided (inter alia, West v. Emanuel, 198 Pa. 180, 47 A. 965, 53 L. R.A. 329; Ebbert v. Philadelphia...