Food Fair Stores of Fla., Inc. v. Macurda

• Decision Date: 27 March 1957
• Citation: 93 So.2d 860
• Parties: FOOD FAIR STORES OF FLORIDA, Incorporated, a corporation, Appellant, v. Forrest H. MACURDA and Cherie K. Macurda, his wife, Appellees.
• Court: Florida Supreme Court

Page 860

93 So.2d 860

FOOD FAIR STORES OF FLORIDA, Incorporated, a corporation, Appellant, v. Forrest H. MACURDA and Cherie K. Macurda, his wife, Appellees.

Supreme Court of Florida, Division A.

March 27, 1957.

L. S. Julian, Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for appellant.

Walsh, Simmonite, Budd & Walsh, Miami, for appellees.

THORNAL, Justice.

Appellant Food Fair, defendant below, seeks reversal of a judgment for $3,000 in favor of appellees Macurda, plaintiffs below, in an action for damages for alleged breach of an implied warranty.

We are called upon to determine what it is worth in damages to find worms and segments of worms in a half-consumed serving of canned spinach.

Appellant, Food Fair, sells food at retail. Mrs. Cherie Macurda purchased a can of 'fancy' spinach at appellant's store. The next evening she cooked the spinach and served a goodly helping to her husband, Forrest, and herself. When she had half-consumed her serving, she glanced at her plate. To her 'horror' a worm adorned the remaining portion of spinach. Investigation revealed numerous 'segments' of worms in the remainder. Forrest Macurda had by this time consumed practically his entire helping. A check on the spinach can produced a green worm about three-fourths of an inch long. Mrs. Macurda immediately started vomiting. Then Mr. Macurda took his turn at regurgitating. Healthy doses of milk of magnesia were absorbed. Mrs. Macurda, a recent mother, experienced nausea and abdominal pains until noon the next day. Mr. Macurda experienced nausea, abdominal pains and diarrhea for about three days. There were no doctor bills or loss of wages. Spinach, which was formerly a favorite food, has now become a noxious substance to these people. Alleging breach of an implied warranty to sell them food fit for human consumption, appellees sued. The jury gave them jointly a verdict for $3,000. Judgment followed this verdict. Reversal of the judgment or entry of a remittitur is here sought.

Appellant contends that the illness of appellees was the product of psychological reactions rather than physical injury. It is further contended that the amount of the verdict is excessive to the point that it should shock the judicial conscience with a resultant reversal or remittitur.

Appellees contend that there was basis for legal liability and that the evidence adequately supported the verdict of the jury which should not be disturbed.

Appellant points to the growth and importance of the food canning and processings industry. We are then urged to protect the industry against allegedly excessive verdicts. This should be done, we are told, because of a potentially adverse influence on the development of the canning industry. It is insisted that unduly large verdicts in cases of this nature reflect upon the reputation of the industry and in the ultimate places the financial burden on the consumer who buys the product.

While all of this may be true, we cannot measure the rights of these appellees by the suggested standard. In Sencer v. Carl's Markets, Inc., Fla.1950, 45 So.2d 671, we held that a retailer selling canned food products to the public may be held liable on an implied warranty for injuries sustained by a purchaser because of unwholesome substances in the product.

The evidence here clearly supports the conclusion that the can of spinach was crawling with worms. Can the worms be considered deleterious, unwholesome or unfit for human consumption?

Admittedly we are not connoisseurs of cuisine that qualifies us to view as delicacies some foodstuffs that might be indigestible by others. To certain tribes of American Indians we understand that such creatures as worms, grasshoppers, snails and the like are acceptable as...