Helms v. General Baking Co.

• Decision Date: 07 July 1942
• Docket Number: No. 26105.,26105.
• Parties: HELMS v. GENERAL BAKING CO.
• Court: Missouri Court of Appeals

164 S.W.2d 150

HELMS v. GENERAL BAKING CO.

No. 26105.

St. Louis Court of Appeals. Missouri.

July 7, 1942.

Appeal from St. Louis Circuit Court; Edward M. Ruddy, Judge.

"Not to be reported in State Reports."

Action by George Helms against General Baking Company (Bond Bread) for injuries sustained from eating bread alleged to have contained a foreign substance. From a judgment for plaintiff, defendant appeals.

Affirmed.

John F. Evans, of St. Louis, for appellant.

Thos. W. Carlos, of St. Louis, for respondent.

HUGHES, Presiding Judge.

Appellant's counsel has given us a statement of the facts which we deem to be fair and sufficient. It is as follows:

"This is an appeal from a judgment for $500.00 rendered in favor of plaintiff and against defendant-appellant in a cause of action for alleged injury from eating bread manufactured by defendant and sold through a retail grocer.

"Plaintiff's evidence tends to show that on January 9, 1940, he purchased a loaf of "Bond" bread through a retail grocer and took it home, where his wife made up some sandwiches. At the time plaintiff was employed as a night watchman on a W. P. A. job and took the sandwiches to work with him. About 8 o'clock in the evening he sat down to eat his lunch and consumed one entire sandwich without any unusual happening. When halfway through the second sandwich a piece caught in his throat and choked him, and he started vomiting. `It felt like pins going down my throat.' Examination of the remaining part of the sandwich revealed some small pieces of steel. However, these particles were confined to the one slice of bread, as examination of the remainder of the bread revealed no contamination. Subsequently, plaintiff took a part of the bread to defendant's office, where he was requested to leave it, but refused. He says he misplaced this particular part, but produced another portion at the trial.

"Plaintiff remained on the job until midnight and says he vomited two times that evening. The next morning his throat was sore and he called Dr. Earl R. Davis, who prescribed a gargle. Later in the day his throat got worse and he again called Dr. Davis. On this occasion he vomited again, and vomited up a piece of bread with steel in it. He subsequently visited Dr. Davis about nine times over a period of five weeks, during which time he had `a kind of choking and burning in my throat.'

"Dr. Davis testified in corroboration of plaintiff's complaints. He stated that he induced vomiting by putting his finger in plaintiff's throat, and found a small piece of wire in his throat. He saw him eight or nine times over a period of three or four weeks, and estimated his services as of the value of $35.00 or $40.00. The doctor did not know plaintiff before this occurrence, but admitted that he had known Mr. Carlos fifteen or twenty years and the latter had called him in a few lawsuits.

"Approximately one month after this alleged injury plaintiff was involved in an automobile accident and sustained serious injuries. He was treated by other physicians, and employed another attorney, who filed a suit in which plaintiff's deposition was taken. Certain passages from that deposition, relating to the injuries in the present case, were read in evidence.

"The case was submitted to the jury upon an instruction involving the theory of breach of implied warranty. The amended petition bottoms plaintiff's cause of action on certain allegations which defendant contends are drawn solely on the theory of tort for and on account of negligence, while plaintiff insists that the petition supports the theory of the instruction."

Appellant assigns as error the giving of plaintiff's instruction No. 1 which predicates a right of recovery upon the theory of breach of implied warranty, and the contention of appellant being that the amended petition on which the case was tried is bottomed solely upon the theory of negligence. The material parts of the amended petition to this assignment of error are as follows:

"And for his cause of action against the defendant, plaintiff states that on or about January 10, 1940, he purchased a loaf of defendant's `Bond' bread at a grocery store near plaintiff's home, which bread had been manufactured, prepared and wrapped by said defendant and placed for sale at said store, and after eating a portion of said bread he became violently sick, all as a direct and proximate result of the carelessness and negligence of the defendant in this, to wit:

`1. Said defendant so manufactured, prepared and wrapped said loaf of `Bond' bread as aforesaid at its plant in St. Louis, Missouri, and at all times defendant had complete and exclusive control of said bread until said defendant delivered the same to the retail store heretofore mentioned, and defendant, by selling said bread, knew and intended that it should be consumed by the public, and thereby warranted and represented said loaf of `Bond' bread as being pure, harmless, wholesome and safe for all persons who might purchase the same, and defendant knew that persons so purchasing the same would rely upon the warranty and representations as aforesaid.

`2. Plaintiff further states that defendant manufactured, prepared and wrapped a loaf of `Bond' bread that was unwholesome and unfit for human consumption in that the same contained pieces of flexible steel, and defendant knew, or by the exercise of ordinary care on its part, could or should have known that to manufacture, prepare and wrap a loaf of `Bond' bread containing flexible steel, would likely cause a member of the general public and particularly plaintiff purchasing the same and eating it, violent sickness, and as a direct result of the negligence and carelessness of said defendant as above set out, plaintiff did purchase and consume and ate a portion of the said bread and suffered the following serious injuries:"

Plaintiff's instruction No. 1 is lengthy, and no good purpose would be served by copying it herein in extenso, sufficient to say that it does base plaintiff's right of recovery solely upon an implied warranty that the bread was a wholesome food fit for human consumption and free from harmful and deleterious ingredients.

There can be no question but that the petition did allege negligence, on the other hand there can also be no question but that the petition also alleged a cause of action based on warranty. In this respect the petition could not be classed as a model, but if defendant did not and could not determine from the petition...