Hardin's Bakeries, Inc. v. Kelly, 43697

• Decision Date: 06 December 1965
• Docket Number: No. 43697,43697
• Citation: 180 So.2d 605,254 Miss. 126
• Parties: HARDIN'S BAKERIES, INC. v. Mrs. Cecil (Helen) KELLY.
• Court: Mississippi Supreme Court

Page 605

180 So.2d 605

254 Miss. 126

HARDIN'S BAKERIES, INC. v. Mrs. Cecil (Helen) KELLY.

No. 43697.

Supreme Court of Mississippi.

Dec. 6, 1965.

Snow, Covington, Shows & Watts, Meridian, for appellant.

Williamson, Pigford & Hendricks, Meridian, for appellee.

SMITH, Justice:

The appellee, Mrs. Cecil Kelly, sued appellant, Hardin's Bakeries, Inc., in the Circuit Court of Lauderdale County demanding damages for personal injuries claimed to have been sustained as the result of eating bread manufactured and distributed by appellant which she alleged contained bits of glass. A jury returned a verdict for plaintiff in the amount of $10,000.00, and judgment was entered accordingly. From that judgment, this appeal has been prosecuted.

The evidence adduced in support of Mrs. Kelly's claim is to the effect that she took one bite of a peanut butter sandwich prepared by her daughter from bread manufactured and distributed by Hardin's which contained glass, and that she was injured when a piece of this glass lodged in her throat. She does not seem to have noticed the glass in the bread immediately but desisted from eating the sandwich after the first bite upon being told by her daughter that glass had been discovered in the remainder of the loaf from which it had been prepared

It appears that Mrs. Kelly had the misfortune to suffer several ailments which required extensive and costly surgery and hospitalization during the period covered by the evidence and which followed the above incident. She was in and out of hospitals and under the care of doctors for several months. By far the greater part of this was for conditions wholly unrelated to her claim that she swallowed the bit of glass which lodged in her throat. Among the conditions for which she was hospitalized and operated upon and for which the defendant was in no way responsible were goiter (which she had for thirteen years and which was removed by surgery), a hysterectomy, and an operation for adhesions or rupture. The jury was permitted to hear evidence as to these things and as to the expenses associated with them. The court recognized that these matters were irrelevant to any issue in the case and were likely to mislead the jury and at the conclusion of the trial the jury was instructed that under no circumstances was plaintiff entitled to recover any medical expenses or doctors' bills resulting from the goiter operation, the hysterectomy operation, or for the operation for adhesions or rupture, as there was no connection between such ailments and the swallowing of glass alleged to have been in the bread.

We do not imply with an error in the admission of prejudicial evidence may never be cured by proper instructions. But under the peculiar circumstances of this case, where the medical evidence relating to the injury charged against the defendant was so interwoven with similar evidence touching wholly unrelated surgery and hospitalization as to be virtually inextricable, it is doubtful that instructions were wholly effective in undoing the resulting harm.

The surgery required as a result of swallowing the glass contained in the bread consisted of an exploration of appellee's throat by means of a light and by having appellee swallow cotton in order to locate any foreign body that might have become embedded in the throat wall. Her throat was then X-rayed and cotton fibers were allegedly shown by the picture to have been caught on some protruding sharp object in the throat wall. This exploratory 'operation' was followed by an excision of a small piece of tissue from the inside of plaintiff's throat. The doctor said this contained some hard substance which was not further identified. The jury apparently inferred from the circumstantial evidence before it that this hard substance was a bit of glass which had been in the...