Gay v. A & P Food Stores

• Decision Date: 29 May 1963
• Citation: 39 Misc.2d 360,240 N.Y.S.2d 809
• Court: New York City Court
• Parties: Blanche GAY, individually, and as Guardian of Walter Gay, an infant, Plaintiff, v. A & P FOOD STORES, Defendant.

Page 809

240 N.Y.S.2d 809

39 Misc.2d 360

Blanche GAY, individually, and as Guardian of Walter Gay, an infant, Plaintiff, v. A & P FOOD STORES, Defendant.

Civil Court of the City of New York, Bronx County, Trial

Term, Part I.

May 29, 1963.

Samuel Kowal, New York City, for plaintiff.

Garvey & Conway, for defendant; Vincent M. Sclafani, New York City, of counsel.

ARTHUR WATCHTEL, Judge.

This is an action to recover damages for personal injuries sustained by the infant plaintiff against the retailer based on negligence and breach of warranty. The cause of action based on negligence was dismissed on the trial and the Court limited plaintiff's case to breach of implied warranty of merchantability.

Plaintiff, Blanche Gay, purchased from the defendant a can of whole kernel corn bearing the defendant's brand name. The can of corn was used on the evening of the day it was purchased. During the meal the infant plaintiff picked up a portion of corn from his plate with his spoon, saw a worm imbedded therein and immediately thereafter became ill and nauseous. He testified he felt stomach pains thereafter for approximately a week.

The jury returned a verdict in favor of the infant plaintiff in the sum of $100, and defendant now moves to set aside the verdict.

Defendant argues that plaintiff did not eat, bite or take into his mouth the worm or any part of it. At no time did it come in contact with his person.

This case now presents the question whether damages for fright and psychic trauma may be allowed in foreign substance food cases based on breach of implied warranty, as they are now allowed in cases of negligence, since the historic overthrow of the rule of Mitchell v. Rochester Railway Company, 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781, in Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 929. The courts have understandably been concerned with the danger to the public involved. They have also understandably struggled against the technical barriers raised by the defendants in these cases to thwart consumers misled by their asserted proclamations of faith. They have raised the plea of privity to avoid the consequences of their fault, for a time successful, but now no longer so. (See Starke, J., in Parish v. Great Atlantic & Pacific Tea Company, 13 Misc.2d 33, 177 N.Y.S.2d 7). And their reliance on the law of contracts to avoid liability has met its deserved demise in the decision of the Court of Appeals of Greco v. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 115 A.L.R. 1020. There the issue was raised whether the breach of an implied warranty was a 'wrongful act, neglect, or default' within the meaning of Section 130 of the Decedent Estate Law. The answer depended upon 'a solution of the question as to whether breach of the implied warranty, in a case such as this, where personal injury to the person to whom the warranty is made results from the breach, is tortious in nature and effect and is due to the wrongful act or neglect or default of the person making and breaching the warranty.' (277 N.Y. pages 31, 32, 12 N.E.2d page 560, 115 A.L.R. 1020). And, after reviewing the history of the remedy of breach of warranty it was held that it was. For, as the Court pointed out, prior to the action for assumpsit, the remedy for breach of warranty was an action on the case for deceit. (Ames' Lectures on Legal History (1913) p. 136).

'Under each cause of action, whether framed in tort or on contract, default or breach of duty involves an injury. At times the same facts may warrant procedure ex contractu or ex delicto. At such times recovery is not conditioned on definition nor measured by a determination of whether it is grounded in a violation of a duty owing to another or in a breach of a contractual obligation. Nor is an action any the less on contract because the elements of damage arise out of a trespass (Sullivan v. Dunham, 161 N.Y. 290, 55 N.E. 923, 47 L.R.A. 715), or an assault (Busch v. Interborough Rapid Transit Co., supra [187 N.Y. 388, 80 N.E. 197]), or other personal injury (Doedt v. Wiswall, 15 How.Prac. 128, affirmed 15 How.Prac. 145; Gillespie v. Brooklyn Heights R. Co., 178 N.Y. 347, 70 N.E. 857, 66 L.R.A. 618). Violation of a duty owing to another is a wrongful act; breach of a contract involving violation of duty may be likewise a wrongful act. Here, the duty rested on defendant to see, at its peril, that the food was fit for human consumption and it is based on considerations of public health and public policy. Race v. Krum, supra [222 N.Y. 410, 118 N.E. 853, L.R.A.1918F, 1172]. Though the action may be brought solely for the breach of the implied warranty, the breach is a wrongful act, a default and, in its essential nature, a tort.' (Greco v. Kresge Co., supra, 277 N.Y. at page 34, 12 N.E.2d at page 561, 115 A.L.R. 1020).

Historically the law of warranty is older by a century than special assumpsit. The original character of the action cannot safely be lost sight of and the seller's liability upon a warranty may sound in tort as well as in contract. (1 Williston on Sales, Section 195, pages 501-2; see also Prosser on Torts, Second Edition 673 Section 83, and 77 C.J.S. Sales § 354, page 1262).

In respect of damages recoverable in food cases, the legislature has disregarded the spurious distinction between tort and contract and has provided for the measure of damages as 'the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.' (Personal Property Law, Section 150, subdiv. 6; and see Tremeroli v. Austin Trailer Equipment Co., 102 Cal.App.2d 464, 227 P.2d 923, page 933; Ryan v. Progressive Grocery Stores, 255 N.Y. 388, at page 395, 175 N.E. 105, at page 107, 74 A.L.R. 339).

Although affirmative proof of negligence on the defendant's part is not involved in these cases, contributory negligence may be asserted as a defense. (See Fredendall v. Abraham & Straus, 279 N.Y. 146, 18 N.E.2d 11). Accordingly, if damages for fright without physical contact are recoverable in tort and negligence cases as determined by the Battalla decision, the same result should also obtain in the case of breach of warranty in foreign substance food cases. Indeed, defendant concedes that the reversal of the rule of Mitchell v. Rochester Railway Co., 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781, supra, by the Battalla decision, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 929, supra, 'in no way affects the instant case for it merely makes universal that which has always applied to foreign substance cases' (Defendant's memorandum, p. 4).

This leads us to the crux of defendant's argument. Defendant is concerned with the question as to the burden of proof of the plaintiff, and properly so. Defendant argues that the failure to produce medical testimony to sustain causal relation is fatal to the plaintiff's case. This argument is not tenable. It requires no medical proof to permit an inference of causation of nausea by reason of the sight of something that is repulsive and unwholesome in the food that plaintiff is in the process of eating, be it a fly, a worm or other repulsive organism. (Campbell v. Safeway Stores, D.C.Mun.App., 149 A.2d 420, at page 422, and cases there cited; Shaw v. Tague, 257 N.Y. 193, 177 N.E. 417; and see also, Cernes v. Pittsburg Coca Cola Bottling Co., 183 Kan. 758, 332 P.2d 258 at page 262, 77 A.L.R.2d 208). Uffner v. Campbell Soup Co., 207 Misc. 21, 138 N.Y.S.2d 728, relied on by the defendant, is not to the contrary. There the court without a jury found as a fact that plaintiff failed to show any connection between the presence of the dead fly in the soup and the alleged illness, and without medical testimony to support the case he could not make such a finding of fact. The Court distinguished the case from Carroll v. New York Pie Baking Co., 215 App.Div. 240, 213 N.Y.S. 553 (2d Dept. 1926) on the ground that in the latter case there was medical testimony that the sight of cockroaches imbedded in the pie crust caused a psychic reaction in the plaintiff with resultant nervous gastritis. However, ...