Gustafson v. Gate City Co-op. Creamery

• Decision Date: 30 January 1964
• Docket Number: 10067,Nos. 10062,CO-OP,s. 10062
• Citation: 80 S.D. 430,126 N.W.2d 121
• Parties: Mrs. Genevieve GUSTAFSON, Plaintiff and Respondent, v. GATE CITYCREAMERY, Defendant and Appellant. Mrs. Genevieve GUSTAFSON, Plaintiff and Cross-Appellant, v. GATE CITYCREAMERY, Defendant and Cross-Respondent.
• Court: South Dakota Supreme Court

Page 121

126 N.W.2d 121

80 S.D. 430

Mrs. Genevieve GUSTAFSON, Plaintiff and Respondent, v. GATE CITY CO-OP CREAMERY, Defendant and Appellant.

Mrs. Genevieve GUSTAFSON, Plaintiff and Cross-Appellant, v. GATE CITY CO-OP CREAMERY, Defendant and Cross-Respondent.

Nos. 10062, 10067.

Supreme Court of South Dakota.

Jan. 30, 1964.

Horace R. Jackson, of Whiting, Lynn, Freiberg & Shultz, Rapid City, for defendant and appellant.

E. G. Brown, of Milek & Brown, Sturgis, for plaintiff and respondent; Maurice McKee, Rapid City, on the brief.

BIEGELMEIER, Presiding Judge.

Plaintiff purchased, at a retail store, a pound of butter manufactured by defendant creamery. Having eaten some of it, she brought an action claiming fragments of glass therein had caused her physical injury and mental anguish. The complaint contained her claims in several counts. The trial court submitted the claim to a jury on the issue of negligence. There was a verdict for plaintiff; defendant appeals from the judgment thereon.

Defendant made a motion for a new trial or for judgment n. o. v. which was denied. Defendant's argument in sum, is the court erred in not directing a verdict for defendant because of the insufficiency of the evidence and its inherent incredibility and improbability.

This court in 1940 reviewed the different theories on which recovery has been allowed in food product cases as between a manufacturer and the consumer in the absence of direct contractual relations. As between liability for implied warranty and negligence the court concluded liability on the negligence theory as the better reasoning, Whitehorn v. Nash-Finch Co., 67 S.D. 465, 293 N.W. 859; also, that an inference of negligence arises from the mere presence of impurities in food when such impurities, and foreign matter, would not ordinarily appear without negligence of the manufacturer. Under instructions on this issue the jury verdict being for plaintiff, in our review we must look at the evidence, including all possible inferences to be drawn therefrom, in a light most favorable to the verdict. Fryda v. Vesely, S.D., 123 N.W.2d 345; Stygles v. Ellis, S.D., 123 N.W.2d 348.

Viewing the evidence in that posture, it appears plaintiff purchased the butter at a retail store from a case where it was replenished daily by defendant's route man; plaintiff, as other customers regularly did, served herself from the case and paid for it with other purchases at the checkout counter. The butter was wrapped in defendant's label and it makes no claim the butter was not processed by it. On arriving home, plaintiff commenced preparations of a meal for herself and a guest who was present. She cut off a portion of the butter and placed it on the table. She then cut off a chunk and ate it; her tongue started to burn; she testified she told the guest 'I believe I have cut my tongue' and 'my tongue was bleeding, and my lips started bleeding'. She then found glass and parties of dirt in the butter. After trying to call the creamery, she notified them the next day. Two creamery agents came with a health inspector to observe the butter and X-rays were taken of it. Plaintiff consulted a doctor and a few days later she removed a glass splinter from her lip. Plaintiff's supper guest generally confirmed her version of the mealtime occurrence. The inspector, an unwilling, if not hostile, witness and creamery agents admitted glass was in the butter and that plaintiff tried to show them her cut lip, but they couldn't see it. Because defendant stresses the incredibility of defendant's version of the testimony and the apparent conflict with certain experiments introduced in defense, one item of evidence is referred to at this point. Defendant claims the evidence shows the glass to be in a vertical plane along the edge of the cut in the butter, and there only, and therefore this would be incredible. But a doctor of medicine consulted by plaintiff, testified he X-rayed the butter and from the X-rays it had 'particles of foreign material in it, or opaque material suggestive of glass * * * all through it'. The X-rays in evidence support this conclusion. He also testified plaintiff had a small puncture wound or small chronic ulceration in the inner aspect of her lower lip; that in his opinion she had an injury such as described by her.

This evidence was sufficient to support the verdict and we cannot say, as defendant asserts, that it is inherently incredible and improbable. Other courts have approved verdicts on similar evidence. Coca-Cola Bottling Co. v. Reeves, 211 Ark. 452, 200 S.W.2d 811; Foley v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 215 S.W.2d 314; Danker v. Fischer Baking Co., 5 N.J.Super. 248, 68 A.2d 774; Cassini v. Curtis Candy Co., 113 N.J.L. 91, 172 A. 519. The later opinion in Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1, concerned Cassini only in so far as it mentioned the lack of privity of contract.

Defendant introduced photographs of its creamery and machinery as well as testimony showing methods of making butter. An expert witness performed an experiment by adding aluminum filings to the butter just before it entered a machine known as a 'former' and wrapping receptacle, the last place foreign matter could enter the finished product. He testified the augers which forced the butter into the machine mixed the butter and filings with the result they appeared distributed throughout thirty pounds of butter; that in his opinion it was...