Bryer v. Rath Packing Co.

• Decision Date: 11 December 1959
• Docket Number: No. 77,77
• Citation: 156 A.2d 442,77 A.L.R.2d 1,221 Md. 105
• Parties: , 77 A.L.R.2d 1 Leo A. BRYER, Individually, etc. v. RATH PACKING COMPANY.
• Court: Maryland Court of Appeals

Page 105

221 Md. 105

156 A.2d 442, 77 A.L.R.2d 1

Leo A. BRYER, Individually, etc. v. RATH PACKING COMPANY.

No. 77.

Court of Appeals of Maryland.

Dec. 11, 1959.

Robert G. Tobin, Jr., Silver Springs (Howard J. Thomas, Silver Springs, on the brief), for appellant.

Joseph B. Simpson, Jr., Rockville (Simpson & Simpson, Vivian V. Simpson, H. Algire McFaul, Rockville, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

A small chicken bone that lodged just below the epiglottis in the esophagus of a girl eating chicken chow mein in the school cafeteria brought about this appeal. The child's father, on his own behalf and as next friend of his daughter, brought a suit in tort for the negligence of the packer of sealed cans advertised as containing 'Ready to Serve Boned Chicken' from which the manager of the cafeteria and taken the chicken used in the chicken chow mein. At the conclusion of the plaintiff's case the trial court directed the jury to find for the defendant.

The cafeteria manager, who had had fifteen years experience, testified that the chicken used in the chow mein came in sealed cans of the defendant that were 'all in perfect condition.' She used boned ready to serve chicken because it was boneless. She said that formerly her staff had prepared their own chicken but had found that in picking the meat from the bone there was the possibility of bone getting into the meat, and that she had 'stopped using fresh chickens for that reason.' After the accident a check of the unserved remainder of the chow mein revealed in it other small bones, or splinters of bone, about an inch or an inch and a half long.

Appellant contends, and appellee concedes, that in Maryland, as in most jurisdictions, the packer of food products in sealed containers represents to the consumer that the contents of the can or package are suited to the purpose for which they are intended, and that when the consumer eats the product, relying on the assurance of the packer that it is fit and safe to eat, he has a right to insist that the packer shall have exercised reasonable care to see that it is so fit and safe. If proper care has not been exercised, the packer is liable to the consumer for injury that may result from failure to exercise proper care. Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866; Armour & Co. v. Leasure, 177 Md. 393, 9 A.2d 572; Cloverland Farms Dairy v. Ellin, 195 Md. 663, 670, 75 A.2d 116. The parties likewise agree, as the cases just cited indicate, that where a foreign substance or a deleterious ingredient is found in food taken directly from a sealed container, there arises a strong inference that it was there at the time of the sale by the packer and that the packer was negligent. 2 Harper and James, Torts, sec. 28.14, p. 1565. See also Great Atlantic & Pacific Tea Co. v. Adams, 213 Md. 521, 526, 132 A.2d 484.

The narrow issue on which the parties differ, and on which, as we see it, the case turns, is whether bones which are natural to the type of food eaten but which generally are not found in the style of the food as prepared are to be deemed the equivalent of a foreign substance in determining whether the food in which they are is reasonably fit and safe for human consumption. There are cases both ways. Some are suits on implied warranty, some where the claim is based on negligence. The action for breach of warranty was originally a tort action for breach of duty assumed, and a number of decisions have considered the original tort theory very much alive. In the warranty cases the Courts have said the warranty is one of merchantable quality or fitness for the general purpose for which the goods are sold which, in the food cases, means reasonably fit and safe for human consumption. Prosser, Torts, Sec. 84, p. 507 (2d Ed. 1955). In 2 Harper & James, Torts, Sec. 28.22, note 1, it is observed: 'Thus in Burkhardt v. Armour & Co., 115 Conn. 249, 161 A. 385 (1932), the foreign substance in corned beef constituted both negligence (as to the packer) and breach of warranty (as to the retailer). And the same question whether a chicken bone in a chicken dish, an oyster shell in canned oysters, or a cherry pit in cherry pie prevents the article from being 'reasonably fit for human consumption as food,' comes into the warranty cases as it does into those grounded on negligence.'

Because the question of fitness and safeness for human consumption is measurable by the same tests in both the warranty cases and the negligence cases in which negligence is proven or properly to be inferred, both classes of cases may be precedents of value in deciding the case before us. Compare Childs Dining Hall Co. v. Swingler, 173 Md. 490, 197 A. 105.

There are four leading cases holding that the presence of bone natural to the product eaten does not make the supplier liable to one injured by the bone. In Mix v. Ingersoll Candy Co., 6 Cal.2d 674, 59 P.2d 144, the injury was caused by a chicken bone in a chicken pie. The Court found that, under the Sales Act, West's Ann.Cal.Civ.Code, § 1735, which was held applicable, food must be reasonably fit for human consumption and a deviation from perfection of such a nature as in common knowledge could reasonably be anticipated and guarded against by the partaker of the food is not a breach of warranty. The Court said that as a matter of common knowledge chicken pies often contain chicken bones, that 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' (59 P.2d at page 148). The Mix case was followed in California by Silva v. F. W. Woolworth Co., 28 Cal.App.2d 649, 83 P.2d 76, where a customer was served a 'special plate' of roast turkey and swallowed a turkey bone. Brown v. Nebiker, 229 Iowa 1223, 296 N.W. 366, 371, relied on the Mix case in holding that a small bone in a pork chop was not a foreign substance and that 'One who eats pork chops, or * * * spare ribs * * *, or the type of meat that bones are natural to, ought to anticipate and be on his guard against the presence of bones, which he knows will be there.' An intermediate appellate court in Illinois, in Goodwin v. Country Club of Peoria, 323 Ill.App. 1, 54 N.E.2d 612, followed the cases which have been cited above in holding that a bone in creamed chicken (made of turkey meat) was not to be deemed a foreign substance, and that the restaurant keeper's warranty that food is fit and wholesome to be eaten is not violated when he leaves in a meat dish bones natural to that meat.

Three States have taken a contrary view. In Wood v. Waldorf System, Inc., 79 R.I. 1, 83 A.2d 90, the...