Kroger Co. v. Beck

• Decision Date: 25 April 1978
• Docket Number: No. 3-1276A299,3-1276A299
• Citation: 375 N.E.2d 640,176 Ind.App. 202
• Parties: The KROGER COMPANY, Appellant-Defendant, v. Phyllis R. BECK, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 640

375 N.E.2d 640

176 Ind.App. 202

The KROGER COMPANY, Appellant-Defendant, v. Phyllis R. BECK, Appellee-Plaintiff.

No. 3-1276A299.

Court of Appeals of Indiana,Third District.

April 25, 1978.

R. Kent Rowe, Paul M. Oleniczak, Rowe, Sweeney Butler, Simeri & Laderer, South Bend, for appellant-defendant.

Kenneth P. Fedder, John B. Ramming, Voor, Jackson, McMichael, Allen Fedder & Herendeen, South Bend, for appellee-plaintiff.

STATON, Judge.

Phyllis Beck sued The Kroger Company in the St. Joseph Superior Court, Small Claims Division; Beck recovered $2700. Kroger appeals. Two issues are before us:

(1) Was there sufficient evidence of a contemporaneous physical injury to support the trial court's award of damages for mental anguish?

(2) Was $2700 an excessive damage award for mental anguish and suffering?

We have reviewed the record, and we find that the judgment of the trial court is supported by the evidence. We affirm.

I. Injury

Phyllis Beck purchased a sirloin steak for her family at a Kroger grocery store on October 31, 1976. The steak had been pre-packaged by Kroger for its customers. Later the same day, she prepared the steak for dinner by cutting it into portions and broiling it. After serving the steak to her family for dinner, Phyllis Beck felt a sharp pain in the back of her throat when she placed the second bite of the steak into her mouth. She yanked the piece of steak from her mouth, ran into the bathroom, and vomited violently. In the steak, she found an inch-long piece of metal which was the tip end of a large hypodermic needle used for injecting animals. This sharp end of the hypodermic needle had punctured her throat.

Phyllis Beck testified at trial that she could not swear that she bled as a result of the puncture because of the location of the wound (soft palate at the back of the throat) and the vomiting. She did not go to a doctor, but rather administered first aid to herself for a month by gargling with Listerine. Although her mouth has healed and she does not have a scar, she is afraid that such an incident will reoccur. She further testified that she has not been able to enjoy eating steak or any other kind of meat since.

Her husband was present when she was injured by the needle. He told the court that at one point during dinner his wife screamed and went into the bathroom and vomited. She showed him the needle which she had removed from her mouth. He testified that after the incident "having meat or not having meat" was "a bone of contention." The incident "took, quite frankly, the fun out of eating for some time. . . ."

II. Contemporaneous Physical Injury

Kroger argues, on appeal, that Beck failed to show any contemporaneous physical injury which would justify an award for the psychological injury. Kroger suggests that the "pricking" of Phyllis Beck's throat did not constitute an appreciable physical injury. Kroger maintains that the psychological injury she claims is only related to a fear of what might have happened had the needle been swallowed and was not directly related to the contemporaneous physical "pricking."

Phyllis Beck's complaint alleged "great bodily harm and mental anguish." The only witnesses at trial were Phyllis Beck and her husband, and their testimony was uncontradicted: Phyllis Beck experienced and evidenced pain, yanked the piece of animal hypodermic and steak from her mouth, vomited, and has not enjoyed meat since the incident. She stated explicitly many times, "It (her throat) was punctured." The inference drawn by the trier of fact was that she was injured as a proximate result of her contact with the needle in the steak which had been purchased from Kroger. That inference, from the uncontradicted evidence, must prevail. Haynes v. Brown (1949), 120 Ind.App. 184, 88 N.E.2d 795. We will look only to the evidence and reasonable inferences to be drawn therefrom which support the judgment. Wilson v. Jerry Miller, Inc. (1973), 157 Ind.App. 135, 299 N.E.2d 177.

Kroger characterizes her injury as a "prick" followed by an unconnected fear. This framing of the factual basis of the complaint is not even remotely supported by the evidence. Moreover, Kroger's attempt to show that her fear of eating meat was not related to the "prick" of the needle presupposes that a contemporaneous physical injury (which was uncontradicted, in that a "prick" is an injury) must be permanent or substantial to spawn mental distress. A cursory review of mental anguish decisions shows that permanent or substantial physical injury is not required and has not been required by the law. ¹

Coca-Cola Bottling Co. of Arkansas v. Langston (1939), 198 Ark. 59, 127 S.W.2d 263, concerned a man who drank a beverage in which he found two or three teaspoonfuls of finely ground or powdered glass. He discovered particles of glass in his mouth and became frightened. Examination revealed that his mouth was roughened, cut, and bleeding. The court, in allowing a recovery of $1000, stated that "(i)t is possibly true that the tiny cuts or scratches made by the glass in the man's throat did not amount to very much." But, the court added, "we must recognize the principle that one who takes into his mouth some matter which he thinks is deleterious, injurious, poisonous, that there may be ensuing fright, there may be great mental and consequent physical suffering." 127 S.W.2d at 264. Phyllis Beck's testimony detailed physical injury, month-long pain, nausea, vomiting, fright, and loss of ability to eat meat.

Another case, Morton v. Stack (1930), 122 Ohio St. 115, 170 N.E. 869, illustrates that the type of initial injury is not important. In Morton v. Stack, supra, a child was trapped in a room with no outside fire escape. The child was forced to inhale smoke for about fifteen minutes before being rescued. Although the initial injury was not severe, for some weeks the child was nervous, shook, cried out in her sleep, and one and one-half years later experienced convulsions. The court determined that the absence of the fire escape was the proximate cause of the smoke inhalation which resulted in the mental anguish. Phyllis Beck's injury, a puncture in her throat, was certainly as appreciable as the child's smoke inhalation. We conclude that Beck's inability to demonstrate permanent physical impairment is not fatal to her claim.

Once it has been shown that injury occurred, it is for the trier of fact to determine whether that injury was the catalyst producing the mental distress. ²

Kroger does not dispute the fact that Beck was at least "pricked" by the extremely sharp tip of an animal hypodermic as she was chewing a piece of steak from its store. Kroger does not argue that the hypodermic needle was not dangerous or would not cause pain in a normal person. ³ As a Mississippi Supreme Court succinctly stated, "Anything taken into the mouth there to be masticated should be free of those elements which may endanger the life or health of the user." Pillars v. R. J. Reynolds Tobacco Co. (1918), 117 Miss. 490, 78 So. 365, 366. ⁴ Kroger does not maintain that a sharp object in a steak which "pricks" the throat and causes vomiting could not engender emotional distress. Phyllis Beck's testimony was unrefuted, and it established the legally required injury as well as the causal connection. The trial court did not commit error when it considered mental distress which had been based on an uncontroverted contemporaneous physical injury. ⁵

III. Damages

Kroger asserts that even if damages for mental distress were proper, $2700 is an excessive amount in that Phyllis Beck did not offer specific evidence supporting that amount. A damage judgment will only be reversed by this Court after we have examined the evidence concerning the injuries, and it is apparent that the amount of damages assessed by the fact-finder is so small or so great as to indicate that the fact-finder was motivated by prejudice, passion, partiality, corruption, or considered some improper element. Wynder v. Lonergan (1972), 153 Ind.App. 92, 286 N.E.2d 413; Rondinelli v. Bowden (1973), 155 Ind.App. 582, 293 N.E.2d 812. On appeal, uncertainty as to the exact amount of damages is resolved against the wrongdoer. Charlie Stuart Oldsmobile, Inc. v. Smith (1976), Ind.App., 357 N.E.2d 247.

We cannot ignore the fact that Kroger offered no evidence at trial whatsoever. ⁶ Phyllis Beck testified to the initial injury, the vomiting, the fear, and the continuing inability to eat meat. She did not introduce expert medical testimony, but such testimony is not crucial to the establishment of her injury. ⁷ The owner of a car may testify to the amount of damages suffered, Charlie Stuart Oldsmobile, Inc. v. Smith, supra ; we see no reason to disallow pain and suffering damages just because the victim is the only witness who personally experienced the pain and suffering. In Medeiros v. Coca-Cola Bottling Co. of Turlock, Limited (1943), 57 Cal.App.2d 707, 135 P.2d 676, the plaintiff found a cleaning brush in his beverage. The court stated,

"We think that a court may well take judicial notice that even a normal person in seeing a disgusting looking object in a bottle from which he has just drunk may and often will suffer intense nausea which may produce more serious results. Also one may recover for injury resulting from mental shock in such cases."

135 P.2d at 680. Medeiros recovered $7500.00.

Phyllis Beck's husband corroborated her account of what happened when she encountered the needle. The anxiety that she experienced was manifested immediately. She stated that she came back from the bathroom and "pulled everything off the table and was worried that someone else possibly might have had another part of maybe the same thing in their meat." She has had nightmares about the incident. Her husband testified that after the occurrence his wife "wasn't in the state of mind that she wanted to (prepare meat)." The trial judge specifically held that he did not...