Flynn v. First National Stores

• Decision Date: 23 February 1937
• Citation: Flynn v. First National Stores, 296 Mass. 521, 6 N.E.2d 814 (Mass. 1937)
• Parties: RITA FLYNN v. FIRST NATIONAL STORES INC. JOHN FLYNN v. SAME.
• Court: Supreme Judicial Court of Massachusetts

296 Mass. 521

6 N.E.2d 814

RITA FLYNN v. FIRST NATIONAL STORES INC. JOHN FLYNN v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

February 23, 1937

December 11, 1936.

Present: RUGG, C.

J., PIERCE, FIELDDONAHUE, & QUA, JJ.

Food.Negligence In sale of food, Res ipsa loquitur.

Evidence Presumptions and burden of proof.A party is not necessarily bound by testimony of a witness called by him.

A finding of negligence of a retail meat dealer toward one injured by a piece of wire in hamburg steak prepared and sold by the dealer was warranted by evidence from which it could be inferred that the wire must have got into the meat while it was in the dealer's store under his exclusive control.

TWO ACTIONS OF CONTRACT OR TORT.Writs in the Superior Court dated May 23 1932.

The actions were tried together before Morton, J., upon a single count in each declaration alleging negligence.The judge ordered verdicts for the defendant and reported the actions to this court.

T. H. Bresnahan, (J.

C. Kane with him,) for the plaintiffs.

W. J. Day, for the defendant.

QUA, J.These actions are prosecuted on the ground that the defendant was negligent in selling to the mother of the plaintiffs a pound of Hamburg steak made in its store containing small pieces of wire, whereby the plaintiffs were injured while eating the steak.Newhall v. Ward Baking Co.240 Mass. 434 436.The principal question is whether the judge rightly directed verdicts for the defendant.

The record contains no detailed description of the sizes or lengths of the pieces of wire, although the two pieces which caused the injuries were marked as exhibits at the trial.But each of these pieces could be identified as wire and each was large enough to cause substantial injury.And from the evidence that each of the plaintiffs was injured by a piece of wire in the very first mouthful of steak taken by each it could be inferred that the entire mass of steak contained a substantial number of pieces.There was evidence from which it could be found that the wire did not get into the Hamburg steak after it left the store.And the defendant's manager testified that there was no wire in the meat when it came into the store.Hence the jury could find that the wire got in while the meat was being stored, manufactured into Hamburg steak and kept for sale at the defendant's store under the defendant's exclusive control.They were not obliged to believe the testimony of the defendant's manager that it was impossible for wire to go through the Hamburg machine, even though this witness was called by the plaintiffs.Salem Trust Co. v. Deery,289 Mass. 431 , 435.The meat was hung in the ice box before it was made into Hamburg steak and after it was made into Hamburg steak it was placed on a platter in a case ready for sale.The question then is whether these facts will support an inference of negligence with respect to the presence in the meat as sold of foreign material of the kind shown.

"The tendency of courts is to hold the manufacturer of food to a high degree of care because of the serious consequences to human life likely to follow his negligence."Sullivan v Manhattan Market Co.251 Mass. 395 , 396.In Ward v. Great Atlantic & Pacific Tea Co.231 Mass. 90 , at page 95, this court said that "It is or may be found lack of due care for one to prepare beans for eating with pebbles still among them."In Tonsman v. Greenglass,248 Mass. 275 , this court held that evidence which would support an inference that "a thin piece of iron, about half an inch long and wide" got into a loaf of bread during the process of manufacture by the defendant justified...