Burkhardt v. Armour & Co.

• Decision Date: 05 July 1932
• Citation: 161 A. 385,115 Conn. 249
• Parties: BURKHARDT v. ARMOUR & CO. et al.
• Court: Connecticut Supreme Court

161 A. 385

115 Conn. 249

BURKHARDT v. ARMOUR & CO. et al.

Supreme Court of Errors of Connecticut.

July 5, 1932

Appeal from Superior Court, Hartford County; Ernest A. Inglis Judge.

Action by Bertha E. Burkhardt, administratrix of the estate of Pauline S. Busch, deceased, against Armour & Company and another to recover damages for breach of implied warranty of fitness for consumption, as food, of canned corned beef and for negligence in preparing and packing the same tried to the court. Judgment rendered for plaintiff against both defendants, and plaintiff and defendants appeal.

Error on plaintiff's appeal as to form of judgment only: no error on defendants' appeal; and case remanded, with instructions.

Thomas F. Noone, of Rockville, and William S. Locke and Ralph O Wells, both of Hartford, for plaintiff.

James W. Carpenter and Thomas S. Whitman, both of Hartford, for defendants.

HINMAN, J.

The complaint alleged, in substance, that the plaintiff's decedent purchased from the defendant the Great Atlantic &amp Pacific Tea Company, hereinafter referred to as the tea company, at its Rockville store, a can of corned beef prepared and packed by the defendant Armour & Co., which by reason of negligence of the latter contained, embedded and concealed in the beef, a dangerous piece of tin; also, that the defendants in selling the same represented and warranted it safe and fit for consumption; that the decedent, although exercising due care, swallowed the piece of tin with results, detailed in the complaint, which caused her pain and suffering and expense and ultimately her death. The answers raised the general issue. The trial court held the defendant tea company not negligent but liable for breach of warranty, and Armour & Co. not accountable upon the warranty-on account of lack of privity of contract with the decedent-but liable for negligence. Details of the conclusions reached which are material on these appeals will be mentioned hereafter.

The finding is that the decedent, Pauline I, Busch, was about seventy years of age, in good health, and owned and kept her own home, her two daughters, one the plaintiff herein and the other Mrs. Hirth, boarding with her. On April 1, 1930, she requested Mrs. Hirth to purchase for her a can of corned beef for use in preparing the evening meal. Mrs. Hirth went to the store of the defendant tea company and asked the manager for a small can of corned beef without specifying any particular brand. The manager handed her a can marked " Armour's Veribest Products Corned Beef," which Mrs. Hirth paid for and took home to her mother. The can was sealed and contained a piece of tin about three-quarters of an inch square so embedded in the beef and the gelatinous substance which forms thereon that a person opening the can with due care would not notice its presence. The piece of tin had been placed by the packer at or near the bottom of the can to stop the vent hole through which the vacuum is applied to the interior of the can just before sealing, so that particles of beef will not be sucked out.

The bottom of the can was larger than the top, and in the process of removing the meat in the natural way the piece of tin would come out at the bottom of the meat and not be visible. Mrs. Busch opened the can, mixed a part of the contents with potatoes to make hash, and placed the mixture in a frying pan on the stove. The loose piece of tin was in the part of the contents so used, but she did not notice it or know of its presence. After cooking the hash for some time, Mrs. Busch tested it by tasting, and as she swallowed it, felt something sharp in her throat. She immediately went to a doctor and he extracted from her esophagus the square piece of tin. It later developed that the tin, having sharp corners, had lacerated the esophagus, and an infection developed which ultimately resulted in her death on April 19, 1930. Other facts found, modified to such an extent as the defendants are entitled under their assignments for correction of the finding, are stated later in this opinion.

The plaintiff assigns error in the conclusion reached by the trial court that: " At common law the death of a person was never an element of damage, and inasmuch as no statute creates the right to recover damages for death resulting from a breach of implied warranty, no damages could be assessed in this case against the *** Tea Company on account of the death of the plaintiff's decedent. The measure of her damages against said defendant for breach of the implied warranty of fitness was therefore her expenses for medical attendance and her pain and suffering down to the time of her death." The question presented is whether our statutes so alter the common-law rule as to render death an element of damage recoverable in this action as against the defendant Tea Company. The statutes relied on as producing this result are now sections 6030 and 5987 of the General Statutes 1930, which are quoted in a footnote,^[1] We do not deem it necessary to repeat or review the discussions of the general development and effect of these statutes appearing in the earlier cases. Kling v. Torello, 87 Conn. 301, 305, 87 A. 987, 46 L.R.A. (N. S.) 930; Broughel v. Southern New England Telephone Co., 73 Conn. 614, 620, 48 A. 751, 84 Am.St.Rep. 176; Goodsell v. Hartford & N.H. R. Co., 33 Conn. 51, 55; Murphy v. New York & N.H. R. Co., 30 Conn. 184; Mezzi v. Taylor, 99 Conn. 1, 7, 120 A. 871. It was pointed out in Kling v. Torello (1913) supra, page 308 of 87 Conn., 87 A. 987, 46 L.R.A. (N. S.) 930, that prior to 1903 the civil liability imposed by statute for injuries to the person resulting in death had been confined to those occasioned by negligence. Section 1994 of the General Statutes 1992 provided that, " The executor or administrator of any person whose death shall have been caused by negligence, may recover of the party legally in fault just damages, ***" Chapter 193 of the Public Acts of 1903, § 4, omitted the limiting words " caused by negligence" and provided for recovery in " all actions surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise." In Kling v. Torello, we held (page 309 of 87 Conn., 87 A. 987, 46 L.R.A. (N. S.) 930) that the purpose of the omission of the pre-existing limitation to injuries caused by negligence, and the substitution of the general comprehensive language just quoted, was to remove the discrimination arising from the previous limitation of recovery under the statute to death resulting from negligent conduct only, to the exclusion of intentional wrongs-such as the alleged willful and malicious assault involved in that case-and (page 310 of 87 Conn., 87 A. 987, 46 L.R.A. (N. S.) 930) that the statute as amended authorized recovery for injuries intentionally indicted which resulted in death. Practically coincident with the presentation of Kling v. Torello in this court and apparently motivated by the situation presented or illustrated by that case, the General Assembly adopted, in substitution for the act of 1993, chapter 148 of the Public Acts of 1913, which still remains in effect as section 5987 of the General Statutes. The express terms of this act correspond in substance with the effect accorded the 1993 law by Kling v. Torello by including, in the fatal injuries for which recovery might be had thereunder, those caused not only by negligence but also by " willful, malicious or felouieus act." It is unnecessary to inquire whether, if the statute had remained, as in the 1903 act, without this specification of the causes of injuries resulting in death, its scope could be regarded as embracing and permitting recovery for breach of implied warranty, for it is clear that the effect of the 1913 act was to restore the limitation which had been removed in 1903, although extending it so as to permit recovery for death caused by willful, malicious, or felouious act as well as by negligence. Damages for the death were properly excluded from the recovery allowed from the defendant tea company for breach of implied warranty.

The plaintiff was held to be entitled to recover from the defendant tea company for breach of warranty and from the defendant Armour & Co. for negligence. Recovery as to both was for the same injuries, but the measure of damages was different, in that the death was an allowable element as against the latter but not as to the former, and the award of $2,250 for pain and suffering and medical expenses, for which judgment was rendered against the tea company was augmented as to Armour & Co. by $1,250 damages for the death, a total of $3,500. The trial court ruled that " the collection of either of said amounts from either of said parties must be in full satisfaction for the injuries sustained by the plaintiff's decedent" and the judgment provided, accordingly, that the plaintiff " shall not collect both of said amounts, and if she collects from one of said defendants the amount of the judgment rendered against it, then that shall be in full satisfaction of this judgment." In this the plaintiff claims error. She concedes, correctly, that she is not entitled to receive double compensation for the same injuries by collection both judgments in full, but asserts that she is entitled to collect full compensation, and should not be deprived of the benefit of the damages for death through payment or tender of the smaller judgment against the tea company which did not include this element.

The general rule is that there can be but one satisfaction of damages, and where judgments are rendered against different persons for the same cause of action, payment of one is a satisfaction of all. Ayer v. Ashmead, 31 Conn. 447 83 Am.Dec. 154; 34 C.J. ...