Carter v. St. Louis Dairy Co.

• Decision Date: 07 May 1940
• Docket Number: No. 25327.,25327.
• Citation: 139 S.W.2d 1025
• Court: Missouri Court of Appeals
• Parties: CARTER v. ST. LOUIS DAIRY CO.

139 S.W.2d 1025

CARTER v. ST. LOUIS DAIRY CO.

No. 25327.

St. Louis Court of Appeals. Missouri.

May 7, 1940.

As Modified on Denial of Rehearing May 21, 1940.

Appeal from St. Louis Circuit Court; David J. Murphy, Judge.

"Not to be reported in State Reports."

Action for personal injuries by Jennie Carter against the St. Louis Dairy Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Jones, Hocker, Gladney & Grand and Lon Hocker, Jr., all of St. Louis, for appellant.

Benjamin B. Smith and Earl M. Pirkey, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for personal injuries sustained by plaintiff as a result of drinking buttermilk containing broken glass.

Plaintiff in her petition alleges that defendant is a corporation engaged in the manufacture and preparation and sale in the City of St. Louis, Missouri, and elsewhere in Missouri, for human consumption, a liquid product known as buttermilk, and on or about June 16, 1937, in the City of St. Louis, there was bought and paid for by or for plaintiff a bottle of said buttermilk for her to drink, and thereafter on said day plaintiff drank part of said buttermilk, including pieces of glass therein, and hereinafter mentioned, and that the same was furnished by defendant for human consumption; that said buttermilk when it was bottled for distribution by defendant as aforesaid and at the time plaintiff drank part of said buttermilk as aforesaid, contained pieces of glass, and that said bottle of buttermilk by reason of said glass was dangerous and unsafe and injurious to human life and likely to injure any one who attempted to drink said buttermilk in said bottle, and was unfit for human consumption; that because said buttermilk contained pieces of glass some of said glass which was in said buttermilk which plaintiff drank cut and scratched plaintiff's gums and mouth and throat, and the internal organs of her body where food and drink lodge or pass through, whereby plaintiff was caused to suffer pain of body and mind, and to bleed from said injuries, and to pass blood and to suffer from nausea and fainting spells and dizzy spells and dizziness and vomiting and swelling and inflammation and soreness of said injured parts.

Defendant filed a demurrer to the petition, which was overruled by the court. Thereupon defendant filed its answer, which was a general denial.

The cause was tried to a jury. There was a verdict in favor of plaintiff for $1,000; there was a remittitur of $400, and judgment was accordingly entered for $600. Defendant appeals.

Defendant assigns error for the overruling of its demurrer to the petition. In support of this assignment defendant contends that since it appears from the petition that defendant was a remote vendor negligence on the part of defendant is essential to a recovery, and that since the petition does not in terms allege either general or specific negligence, it fails to state a cause of action. This contention runs counter to the decision of this court in McNicholas v. Continental Baking Co., 112 S.W.2d 849, loc. cit. 854, wherein this court said: "A demurrer to the evidence should be sustained only when the facts in evidence and the legitimate inferences to be drawn from such facts are so strongly against plaintiff as to leave no room for reasonable minds to differ. Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143. Even though there was no privity of contract between the defendant manufacturer and plaintiff as the buyer of its product, nevertheless, under the evidence in this case, there was an implied warranty by defendant of the fitness for eating, of the bread which it manufactured, wrapped and sealed in its bakery with the...