Danker v. Fischer Baking Co.

• Decision Date: 20 October 1949
• Docket Number: No. A-534.,A-534.
• Citation: 68 A.2d 774
• Parties: DANKER et al. v. FISCHER BAKING CO.
• Court: New Jersey Superior Court

68 A.2d 774

DANKER et al.

v.FISCHER BAKING CO.

No. A-534.

Superior Court of New JerseyAppellate Division.

Argued Oct. 10, 1949.

Decided Oct. 20, 1949.

Marie Danker and Fred Danker, her husband, sued Fischer Baking Company, a body corporate, for damages resulting when plaintiff wife ate a cruller, prepared and sold by defendant, which allegedly contained a splinter which lodged inside of plaintiff's pharynx.

The Superior Court entered judgment in favor of plaintiffs and defendant appealed.

The Superior Court, Appellate Division, Eastwood, J.A.D., affirmed the judgment, holding that evidence established a prima facie case justifying court in submitting case to jury.

Before Judges McGEEHAN, COLIE and EASTWOOD.

Robert V. Carton, Asbury Park, argued the cause for the plaintiffs-respondents (Harry Edelson, Asbury Park, attorney).

William J. O'Hagan, Asbury Park, argued the cause for the defendant-appellant (Vincent P. Keuper, Asbury Park, attorney).

The opinion of the court was delivered by

EASTWOOD, J.A.D.

Defendant appeals from judgment in favor of plaintiff, Marie Danker, for $500 and her husband, Fred Danker, for $390. The action was instituted to recover damages occasioned by cating a cruller, prepared and sold by defendant, containing a foreign substance.

Defendant contends that the court erred in refusing to dismiss on the grounds that (1) ‘there was insufficient proof of the cause of plaintiff's injury’; (2) that the plaintiff failed to prove causal connection between the defendant's negligence and plaintiff's injury so as to fail in their proof of proximate cause and (3) there was insufficient proof of negligence.

The well-settled rule is that those who engage in the business of preparing, baking and furnishing food for consumption by others are acquired to use reasonable care with respect to its fitness and may be held liable in damages, if, by reason of their negligence, unwholesome products, containing a foreign substance or deleterious matter, are sold and persons are made ill thereby. 11 R.C.L. 1118. Tomlinson v. Armour & Co., 75 N.J.L. 748, 70 A. 314, 19 L.R.A., N.S., 923 (E. & A. 1908); De Groat v. Ward Baking Co., 102 N.J.L. 188, 130 A. 540 (E. & A. 1925); McAteer v. Sheffield Farms Co., 152 A. 469, 9 N.J.Misc. 33 (Sup.Ct.1930); Oelschlaeger v. Hahne & Co., 2 N.J. 490, 44 A.2d 861 (Sup.Ct.1949).

To obtain a clear picture of the situation before the trial court and jury, an elaboration of the facts is essential. At approximately 4:30 P.M., on February 9, 1948, plaintiffs' daughter-in-law purchased some crullers from defendant; they were taken immediately to plaintiffs' home, removed from the bag in which they had been placed at the time of purchase and placed upon a dish on the dinner table by plaintiffs' daughter-in-law, without anyone else having touched them. While eating one of the crullers, plaintiff, Marie Danker, felt a sharp pain in her throat. She went into the bathroom in an unsuccessful attempt to bring up the object which had caused the pain. Her husband then took her that night to the hospital where she was given a gargle and, upon the recommendation of the hospital doctor, went the next day to consult Dr. John D. Makin, an eye, ear, nose and throat specialist. Dr. Makin examined her throat by use of a mirror ‘similar to a periscope’ and testified that he observed an abrasion or scratch on the right side of her pharynx, but did not discern a foreign body. Dr. Makin examined Mrs. Danker on February 15th and 27th, stating that on both of these occasions ‘she had considerable swelling of the right wall of her pharynx.’ On February 28, 1948, Mrs. Danker started coughing, gagged when she attempted to use a gargle to relieve her throat, and a small splinter covered with ‘pus' came out of her throat. The piece of wood was offered and received in evidence.

Between the date of eating the cruller and the coughing up of the splinter, Mrs. Danker suffered from a swelling in the pharynx, had a sharp pain in her throat whenever she swallowed, the pain disturbed her sleep, her face was pale and yellow and her throat ached constantly, and was compelled to subsist on a liquid diet. Dr. Makin testified that it was his opinion that the piece of wood that came out of Mrs. Danker's throat was the cause of the conditions from which Mrs. Danker suffered.

Defendant contends, that, for plaintiffs to recover, where the alleged negligent act charged against defendant...