Courter v. Dilbert Bros., Inc.

• Decision Date: 27 April 1959
• Citation: 186 N.Y.S.2d 334,19 Misc.2d 935
• Parties: -Respondents, v. DILBERT BROS., INC., Defendant-Appellant. DILBERT BROS., INC., Defendant-Respondent, v. AIRLINES FOOD, INC., Defendant-Appellant. Supreme Court, Appellate Term, Second Department
• Court: New York Supreme Court — Appellate Term

Page 334

186 N.Y.S.2d 334

19 Misc.2d 935

Florence COURTER and Lyman Courter, Plaintiffs-Respondents, v. DILBERT BROS., INC., Defendant-Appellant.

DILBERT BROS., INC., Defendant-Respondent, v. AIRLINES FOOD, INC., Defendant-Appellant.

Supreme Court, Appellate Term, Second Department.

April 27, 1959.

Joseph Lubin, Flushing, for plaintiffs.

Tropp & Steinbock, I. Sidney Worthman, New York City, for Dilbert Bros., Inc.

Galli & Locker, Raymond A. Peterson, New York City, for defendant Airlines Food Division of Old Judge Foods Corp., sued as Airlines Food, Inc.

Before PETTE, DI GIOVANNA and BENJAMIN, JJ.

ANTHONY J. DI GIOVANNA, Justice.

In an oral complaint the first cause of action sought damages from Dilbert for breach of warranty '* * * as the result of a foreign substance in said jar * * *' and in the second cause of action damages from Airlines on the theory of its negligence in the manufacturing, bottling and production of 'Simon Fisher Lekvar (prune butter).' Dilbert cross-claimed against Airlines separately on the theory of negligence and breach of warranty.

The trial court rendered judgment in favor of plaintiffs against Dilbert on the breach of warranty cause of action only and impliedly dismissed plaintiffs' cause of action based upon negligence of Airlines Judgment was rendered in favor of defendant against Airlines in the same amount as awarded to plaintiff without the court specifically stating whether the recovery was based upon the breach of warranty cause of action or the negligence cause of action.

In her bill of particulars the plaintiff claimed she was injured by a 'foreign substance found in contents of said jar' and that said 'foreign substance contained in prune butter in said jar consisted of a small piece of broken prune pit' and further stated 'that the defendants breached said warranty in that the jar of prune butter contained a broker piece of broken pit; said food with the foreign substance therein being not fit for human consumption.' Plaintiff claims she was injured by a foreign substance. No appeal has been taken by Dilbert from the judgment, but such failure on Dilbert's part to take appeal does not affect the right of Airlines to attack the judgment in plaintiff's favor. Accordingly, this appeal raised the questions as to whether a piece of prune pit in prune butter constitutes a foreign substance and whether Dilbert was entitled to recover judgment on the cross-complaint on either theory of breach of warranty or negligence.

Nowhere in the record does there appear any fact showing the purchase by Dilbert of the prune butter from Airlines; nor may such fact be inferred from any of the evidence in the record. Consequently, if Dilbert is permitted judgment on the cross-complaint, such judgment must be rendered in the absence of proof of privity both in connection with its claim for breach of warranty and on its claim on the theory of negligence. I do not believe that this record justifies a judgment in favor of Dilbert against Airlines on the cross-complaint. The alleged injurious substance is in fact not a foreign substance and, consequently, cannot be the basis of an action for injuries by reason of the presence of the foreign substance. In the absence of proof of privity, Dilbert could not recover on the breach of warranty cause of action on the cross-complaint, nor could it recover on the negligence cause of action set forth in the cross-complaint.

There seems to be a dearth of cases in this state defining the words 'foreign substance.' In O'Hare v. Petersen, 174 Misc. 481, 21 N.Y.S.2d 487, 490, recourse was had to the definition appearing in the new Merrian Webster Dictionary, Second Edition, which gives the following definition:

'Not organically connected or naturally related. A substance occurring in any part of the body or organism where it is not normally found. Usually introduced from without.'

and

'Deleterious to hurt, damage, hurtful or destructive, noxious, pernicious.'

Other states have had occasion to further define and apply such definition. In Brown v. Nebiker, 229 Iowa 1223, 296 N.W. 366, 369, death ensued to a guest from infection in the wall of the esophagus resulting from penetration of a piece of pork chop or bone thereof. The court held that such piece of bone was not a foreign substance. Recourse was had therein to many cases of other states. Mention was made of the fact that there are 'a number of cases where different kinds of material have been found in food which without question were things entirely foreign to the food, such as glass, wiring, nails and things of that nature, but these cases are far from holding that a small piece or sliver of a bone in a pork chop is a foreign substance to the chop.' Quoting from Mix v. Ingersoll Candy Co., 6 Cal.2d 674, 59 P.2d 144, 147, the court said:

'The words of the Code section are that the food furnished by the restaurant keeper shall be 'reasonably' fit for such purpose--human consumption. It may well happen in many cases that the slighest deviation from perfection may result in the failure of the food to be reasonably fit for human consumption. On the other hand, we are of the opinion, that in certain instances a deviation from perfection, particularly if it is of such a nature as in common knowledge could be reasonably anticipated and guarded against by the consumer, may not be such a defect as to result in the food being not reasonably fit for human consumption.'

In the Mix case, the patron of a restaurant had been injured by a sharp bone while eating chicken pie. In discussing whether such chicken bone was a foreign substance, the California court said:

'The facts presented in the instant case we think present such a situation. We have examined a great many cases dealing with the question of the liability of restaurant keepers which arose out of the serving of food which was held to be unfit for human consumption, and we have failed to find a single case in which the facts are similar to the instant case, or in which a court has extended the liability based upon an implied warranty of a restaurant keeper to cover the presence in food of bones which are natural to the type of meat served. All of the cases are instances in which the food was found not to be reasonably fit for human consumption, either by reason of the presence of a foreign substance, or an impure and noxious condition of the food itself, such as for example, glass, stones, wires or nails in the food, served, or tainted, decayed, diseased, or infected meats or vegetables.'

It further continued:

'We have no hesitancy in so holding, and we are of the opinion that despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption. 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.'

In discussing the duty of the consumer with relation to that food, the court said, in quoting from Goetten v. Owl Drug Co., 6 Cal.2d 683, 59 P.2d 142:

'We do not believe it is a question of contributory negligence on the part of the customer, but a question of whether or not a restaurant keeper in the exercise of due care is required to serve in every instance a perfect chicken pie, in that all bones are entirely eliminated. If the customer has no right to expect such a perfect product, and we think he is not so entitled, then it cannot be said that it was negligence on the part of the restaurant keeper to fail to furnish an entirely boneless chicken pie.'

In discussing the Silva v. F. W. Woolworth Company case, 28 Cal.App.2d 649, 83 P.2d 76:

'The facts are undisputed; the only question involved is whether as a matter of law they constitute a breach of warranty, or negligence. Plaintiff ordered a 'special plate' of roast turkey with dressing and vegetables. When it was served to her, she removed the one slice of turkey and ate some of the dressing. She choked, or gagged, and with the aid of a bystander, emitted a small bone about three-quarters of an inch long, one-quarter of an inch wide, and one-eighth of an inch thick. This was carefully preserved, measured, and photographed, and placed in evidence at the trial.'

In relying upon the Mix case, the court therein said:

'The criterion upon which liability is determined in such cases is whether the object causing the injury is 'foreign' to the dish served. It was there said that ([59 P.2d at] page 148): '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.' The direct holding was that a chicken bone was not a foreign substance to a chicken pie just as a beef bone found in a steak or beef stew or a fish bone found in a fish dish does not render the food unfit for human consumption.'

The same principle was followed in Lamb v. Hill, 112 Cal.App.2d 41, 245 P.2d 316; Rowe v. Louisville & N. R. Co., 29 Ga.App. 151, 113 S.E. 823.

It can be seen, therefore, that a finding that a prune pit is a foreign substance is not in conformity with the case law of several sister states. Cases within our own state have involved mainly substances such as metal objects, stones, mice, bugs, worms, poisons and other such items. While plaintiff's cause of action for breach of warranty is not directly involved on this appeal, nevertheless serious doubt exists as to whether judgment should have been rendered in plaintiff's favor in the first instance.

But assuming that a piece of prune pit does constitute a foreign substance, I find that Dilbert is not entitled to recover on the cross-complaint against Airlines. This cause of action based upon breach of warranty is required to...