Griffin v. James Butler Grocery Co.

• Decision Date: 19 October 1931
• Docket Number: No. 35.,35.
• Citation: 156 A. 636
• Parties: GRIFFIN v. JAMES BUTLER GROCERY CO.
• Court: New Jersey Supreme Court

156 A. 636

GRIFFIN

v. JAMES BUTLER GROCERY CO.

No. 35.

Court of Errors and Appeals of New Jersey.

Oct. 19, 1931.

Syllabus by the Court.

Plaintiff purchased at a grocery store canned peaches which were eaten by her and all members of her family except one. All that had eaten them became very ill within a few hours; the one that had not eaten them did not become ill. Held, that on the evidence, including the foregoing facts, the question whether such illness was caused by eating the peaches was for the jury.

Syllabus by the Court.

Exception 1 to the general language of section 15 of the Sale of Goods Act (4 Comp. St. p. 4650) provides that

"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose."

Held, applicable to canned goods as well as to goods sold in bulk or by measure.

Syllabus by the Court.

An exception to a charge not pointing out the precise language claimed to be erroneous will not be considered on appeal.

Syllabus by the Court.

A ground of appeal embracing several propositions will not suffice for reversal unless all of them are erroneous.

Appeal from Supreme Court.

Action by Martha Griffin against the James Butler Grocery Company. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

Alexander M. MacLeod, of Paterson, for appellant.

Nathan Rabinowltz, of Paterson, for respondent.

PARKER, J.

The case for the plaintiff-respondent was that she had bought from appellant company a can of canned peaches for use as food, and had been made violently ill as a result of eating part of the contents of the can. She based her suit on warranty, express or implied, or both, that the peaches were wholesome and fit for consumption by her, and on alleged breach of that warranty. Defendant answered with a general denial. The court denied a motion to nonsuit on the ground that there was no evidence to indicate either that the peaches were unfit for food, or that plaintiff had suffered injury as a result of eating them. The same disposition was made of a motion to direct a verdict for defendant on similar grounds. The court further overruled a claim of express warranty made by plaintiff, on the ground that the evidence did not support it, and gave the case to the jury on the theory of implied warranty alone. From a verdict and judgment for plaintiff, defendant appeals, and assigns as grounds error in the refusal to nonsuit and direct and error in the charge.

On the facts, there was a plain case for the jury. The plaintiff Mrs. Griffin testified that she went to defendant's store to buy some sugar and butter, and was waited on by the salesman accustomed to serve her; that after she had completed this purchase and was ready to leave the store he said, "'Don't you want to try a can of our peaches?' He says, 'We have got them on sale,' he said, 'a large cand they are a good, large can,' and I says, 'n,' he says, 'for seventeen cents,' he says, 'awell, all right, and then I will take one can, and if we find we like them I will get some more.'"

This testimony regarding the sale and purchase of the peaches at defendant's store was not denied. The only witnesses for defendant were an employee of the California packing concern that put up the peaches in cans, and four physicians, two of whom attended plaintiff or some member of her family at her home and at the hospital, one was called as a medical expert, and the fourth was pathologist of the National Canners' Association at Washington. The testimony for plaintiff indicated that the can of peaches was opened at her house just before supper, and the contents emptied into a glass dish. Those at supper were plaintiff, her son, her daughter, Mrs. Berni, and two of Mrs. Berni's children. Besides the peaches, there were tea and toast, and the son had an egg, and one or more of the children may have had milk. All ate the peaches except the son. All except the son were made violently ill with diarrhea and vomiting and other symptoms of acute gastric and intestinal disturbance. Mrs. Berni, who joined as plaintiff in her own right (Practice Act of 1912, § 4 [Comp. St. Supp. § 163—280]) and was nonsuited for reasons presently to be stated, was ill eight weeks, and was reduced in weight from 145 to 90 pounds. Her little boy died within 24 hours, and the other child died at the hospital. Plaintiff herself was in bed three months. Her son William was the only one that came through unscathed, and the only one that did not eat the canned peaches. The evidence was to the effect that the tea, toast, milk, and egg were in the usual condition and presumably wholesome. The inferences, therefore, that the party were poisoned by bad food, and that such bad food could have been none other than the peaches, were legitimate, if not indeed necessary; and hence there was a clear case for the jury on the facts.

As has been stated, the court laid the case before the jury on the theory of implied warranty arising out of the provisions of section 15 of the Sale of Goods Act, P. L. 1907 at page 316 (1 Comp. St. p. 4650). There was a nonsuit as to Mrs. Berni, the other several plaintiff, on the ground that she was not a party to the sale, and hence not entitled to the benefit of any implied warranty. She does not appeal, and therefore we are not concerned with this phase of the litigation. With respect to warranty in favor of Mrs. Griffin, the respondent, the judge charged the jury in the following language, which by the fifth (and only remaining) ground of appeal, is assigned as error:

"The plaintiff in this case alleges in her complaint regarding this sale of the can of peaches to her by the salesman of the defendant that there was an implied warranty as to the quality and fitness of the peaches for the purpose for which she used them, that is, for eating.

"Under Section 15 of the Sale of Goods Act, which is found in our Compiled Statutes, 4 Compiled Statutes of 1910, p. 4650, that section provides as follows:

"'Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: (1) Where the buyer, expressly or by implication, makes known to...