Cassini v. Curtis Candy Co.

• Decision Date: 16 May 1934
• Docket Number: No. 410.,410.
• Parties: CASSINI et al. v. CURTIS CANDY CO.
• Court: New Jersey Supreme Court

172 A. 519

CASSINI et al.

v. CURTIS CANDY CO.

No. 410.

Supreme Court of New Jersey.

May 16, 1934.

Appeal from Second Judicial District Court, Hudson County.

Action by Emily A. Cassinl and another against the Curtis Candy Company, an Illinois corporation authorized to do business in New Jersey. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Argued January term, 1934, before PARKER, LLOYD, and PERSKIE, JJ.

Insley, Vreeland & Decker, of Jersey City (William E. Decker, of Jersey City, of counsel), for appellant.

Wiener & Stanziale, of Newark (Charles A. Stanziale, of Newark, of counsel), for appellees.

PERSKIE, Justice.

The plaintiff, Emily A. Cassini, wife of Joseph C. Cassini, purchased a bar of "Baby Ruth" candy from one Carolina Generazzo, a retail candy store keeper. Save as the deposition of Karl E. Keefer, vice president of the defendant company, disclosed that it experienced some difficulties in the imitation of its products by competitors, defendant did not deny that the candy in question was manufactured by it. On the part of the plaintiffs, Mrs. Generazzo, when asked whether this candy which she purchased from a jobber, was manufactured by the defendant, answered, "I think so." Further examination of the lastmentioned witness disclosed the following:

"Q. Now, does this candy indicate that it was made by * * *.

"The Court: Don't ask her that. You are offering the wrapper and everything.

"Mr. Stanziale: Is there any objection to this?

"Mr. Symanski: No."

At all events no point is made by defendant on this score. The candy so purchased by the plaintiff was wrapped in defendant's special paper and apparently had some sort of seal on it. Examination of plaintiff: "Q. And is this the seal that was wrapped around the candy at the time? (showing the witness seal). A. Yes, it is." Later the same witness testified that while she was home she took a bite of the candy, swallowed it and had a funny taste in her mouth. She looked at the other portion of the candy and said she saw another worm. She vomited and became sick. She further testified: "Q. I mean before you threw up—as you say—did you have any pain? A. Before I threw up? No, after I swallowed the candy worm—then after that I threw up." She was in bed for three days and incapacitated for about a week.

Defendant moved for a nonsuit The motion was based on substantially the following grounds: (a) That there was no proof of any contractual relationship between the parties ;

(b) that there was no proof that there was any worm in the candy that was eaten; and

(c) that there was no proof of negligence on the part of the defendant in the premises.

The defendant then introduced the deposition of its vice president, Mr. Keefer, which detailed the process of the manufacture of the "Baby Ruth" candy, the high standard or quality of its ingredients, and the general care on its part in the manufacture thereof, all of which tended to exculpate defendant of any negligence in the premises. A motion was made for a directed verdict on practically the same grounds as those advanced on the motion for a nonsuit. This motion was also denied. The court permitted the addition of a "third count," based on an implied warranty and later rendered a judgment of $150 in favor of the wife and one for $50 in favor of the husband.

The failure to grant the motions of nonsuit and to direct a verdict constitutes the sole specifications of determination with which the appellant is dissatisfied in point of law.

It appears to us that the determinative fact involved in this case is (1) whether the plaintiff became ill and suffered the injuries complained of as a result of having eaten a worm, or the emanations from it had permeated the candy that she had eaten, and one or the other of these had physically affected the woman; or (2) whether she became ill and suffered the injuries complained of merely because of the sight of a worm in the candy. Legac v. Vietmeyer Bros., 147 A. 110, 7 N. J. Misc. 685.

Thus it appears to us that the case at bar on the question of proof and causation can more appropriately be aligned with Griffin v. James Butler Grocery Co., 108 N. J. Law, 92, 356 A. 636, in which plaintiff and other members of the family, after eating a meal including canned peaches sold by defendant, became violently ill. It appeared that all ate the peaches with the exception of a son, who was the only one not affected. The evidence was to the effect that the other food, consisting of tea, toast, milk, and eggs were in the usual condition and presumably wholesome. The Court of Errors and Appeals sustained a verdict for the plaintiff, holding that an inference arose that plaintiff became ill by reason of eating deleterious peaches. While it is true that the case cited turns on an implied warranty rather than upon negligence, it is cited to indicate that it was open to the jury, in the instant ease, to draw the legitimate inference that the candy which the plaintiff had eaten was wormy.

We think that the evidence, as already indicated, and the legitimate inferences that could be drawn from that evidence, fully justified the finding of the trial judge.

In the case of Nock v. Coca Cola Bottling Works of Pittsburgh (1931) 102 Pa. Super. 515, 156 A. 537, 538, it was held:

"There is considerable confusion in the decisions as to the theory of the liability of the defendant in this class of cases. Some of them hold that an action is based upon negligence alone; others that it may be founded on an implied warranty; and still others that, where an implied warranty exists, it does not extend to third parties. * * * The question whether an assumpsit under a contract of implied warranty of fitness, etc., may be maintained is, in many instances, so closely related to the question of negligence that the decisions are not always susceptible of clear classification. In 26 C. J. 783, it is stated that the general rule is that in all sales of food or beverages for immediate consumption by a dealer there is an implied warranty of fitness or wholesomeness for the consumer.

"There is, undoubtedly, a very substantial weight of authorities holding that an implied warranty in cases of this character will lie. Crigger v. Coca-Cola Bot. Co., 132 Tenn. 545, 179 S. W. 155, L. R. A. 1916B, 877, Ann. Cas. 1917B, 572; Boyd v. Coca Cola Bot. Works, 132 Tenn. 23, 177 S. W. 80; Craft v. Parker, W. & Co., 96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139; Truschel v. Dean, 77 Ark. 546, 92 S. W. 781; Bunch v. Weil, 72 Ark. 343, 80 S. W. 582, 65 L. R. A. 80; Nelson v. Armour Pkg. Co., 76 Ark. 352, 90 S. W. 288, 6 Ann. Cas. 237; Walters v. U. Grocery Co., 51 Utah, 565, 172 P. 473, L. R. A. 1918E, 519. Catani v. Swift & Co., 251 Pa. 52, 95 A. 931, L. R. A. 1917B, 1272, is very generally cited in support of this conclusion."

But whatever may be the holding of other jurisdictions it is clearly the law of our state that a manufacturer of a commodity, canned, bottled, or sealed, in a container or wrapper, is under duty to an ultimate consumer to exercise reasonable care in the production of the same, regardless of lack of contractual relationship between the consumer and the manufacturer. Recovery in such instances is based on negligence. The following cases are illustrative: Tomlinson v. Armour & Company, 75 N. J. Law 748, 70 A. 314, 19 L. R. A. (N. S.) 923, suit against manufacturer based on negligence—diseased ham. Wilson v. Deschner, 167 A. 670, 11 N. J. Misc. 609, suit against a manufacturer based on negligence—nail in roll—reversed on other grounds. Carbone v. California Packing Corp., 169 A. 866, 12 N. J. Misc. 209, negligence basis of action, suit against defendant, manufacturer, who put up a can of peaches containing medicated gauze. De Groat v. Ward Baking Co., 102 N. J....