Matthews v. Campbell Soup Company, Civ. A. No. 73-H-1319.

• Decision Date: 13 August 1974
• Docket Number: Civ. A. No. 73-H-1319.
• Citation: 380 F. Supp. 1061
• Parties: W. B. MATTHEWS, Plaintiff, v. CAMPBELL SOUP COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Texas

380 F. Supp. 1061

W. B. MATTHEWS, Plaintiff, v. CAMPBELL SOUP COMPANY, Defendant.

Civ. A. No. 73-H-1319.

United States District Court, S. D. Texas, Houston Division.

August 13, 1974.

Flatow & Hinojosa, Marc Flatow, Houston, Tex., for plaintiff.

Vinson, Elkins, Searls, Connally & Smith, Raybourne Thompson, Jr., and Robert A. Rowland, III, Houston, Tex., for defendant.

MEMORANDUM AND ORDER:

SEALS, District Judge.

This action is before the Court on a Motion for Summary Judgment filed by Defendant. In this diversity suit, 28 U. S.C. § 1332(a)(1), Plaintiff seeks to recover for injuries to his teeth and gums which were allegedly suffered while he was eating the contents of a can of Defendant's Oyster Stew Soup. Plaintiff claims that the injuries were caused by a small deleterious object in the soup. Plaintiff surrendered this object to Defendant for examination and it has been identified as a small irregularly shaped oyster pearl.

Plaintiff sets forth two theories of recovery: strict liability in tort and negligence in the manufacture and labeling of this product. Defendant contends that on the undisputed facts before the Court, Plaintiff cannot prevail on a theory of strict liability and that there is no evidence in the record to raise an issue of negligence. In ruling on Defendant's motion this Court is, of course, bound to apply those principles of products liability and negligence law which would be applied by the courts of this State. Erie R.R. Co. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Texas courts have long recognized that the manufacturers of food products warrant that they are wholesome and fit for human consumption. Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (Tex. 1942); Griggs Canning Co. v. Josey, 164 S.W.2d 835, 139 Tex. 623, (Tex. 1942); See also Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170 (Tex. 1938). The warranty was imposed by operation of law as a matter of public policy:

It seems to be the rule that where food products sold for human consumption are unfit for that purpose, there is such an utter failure of the purpose for which the food is sold, and the consequences of eating unsound food are so disastrous to human health and life, that the law imposes a warranty of purity in favor of the ultimate consumer as a matter of public policy. Jacob E. Decker & Sons, Inc. v. Capps, supra, at 829.

In McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex. 1967), this strict liability concept applicable to foodstuffs was extended to include consumer products generally. See also, Putnam v. Erie City Manufacturing Company, 338 F.2d 911 (5th Cir. 1964). The McKisson court adopted the Restatement, Second, Torts § 402A which provides as follows:

Special Liability of Seller of Product for Physical Harm to User or Consumer

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

2. The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

In order to prevail under this strict liability standard Plaintiff must establish that: 1) the product in question was defective; 2) the defect existed at the time the products left the hands of the defendant; 3) that because of the defect the product was unreasonably dangerous to the user or consumer (plaintiff); 4) that the consumer was injured or suffered damages; 5) and that the defect (if proved) was the proximate cause of the injuries suffered. Gravis v. Parke-Davis & Co., 502 S.W.2d 863 (Tex.Civ.App. 1973); Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir., 1974).

Defendant argues that, as a matter of law, the can of Oyster Stew Soup at issue here was not unfit, unwholesome, defective, or unreasonably dangerous. As indicated in Reyes v. Wyeth Laboratories, supra, "defective condition" and "unreasonably dangerous" are essentially synonymous. Further, in light of the Texas Supreme Court's adoption of Section 402A of the Restatement in McKisson, supra, it is apparent that a food product is defective or unreasonably dangeous if it is unwholesome or unfit for human consumption and vice versa.

Defendant's position is bottomed on what may be labeled the "foreign-natural" doctrine. This doctrine, which has been neither accepted nor rejected by Texas courts, apparently first emerged in Mix v. Ingersoll Candy Co., 6 Cal.2d 674, 59 P.2d 144 (1936). There plaintiff brought suit for injuries caused by a fragment of chicken bone contained in a chicken pie. The court held that the chicken pie was not unfit for human consumption as a matter of law:

"Although it may frequently be a question for a jury as the trier of facts to determine whether or not the particular defect alleged rendered the food not reasonably fit for human consumption, yet certain cases present facts from which the court itself may say, as a matter of law that the alleged defect does not fall within the terms of the statute. It is insisted that the court may so determine herein only if it is empowered to take judicial notice of the alleged fact that chicken pies usually contain chicken bones. It is not necessary to go so far as to hold that chicken pies usually contain chicken bones. It is sufficient if it may be said that as a matter of common knowledge chicken pies occasionally contain chicken bones. We have no hesitancy in so holding, and we are of the opinion that despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. At least he cannot hold the restaurant keeper whose representation implied by law is that the meat dish is reasonably fit for human consumption, liable for any injury occurring as a result of the presence of a chicken bone in such chicken pie." At 148 (Emphasis supplied)

Probably a majority of jurisdictions having occasion to treat the problem have adopted the Mix rationale. See, for example: Webster v. Blue Ship Tea Room, Inc., 347 Mass. 421, 198 N.E.2d 309 (Mass. 1964), (fish bone in New England fish chowder); Allen v. Grafton, 170 Ohio St. 249, 164 N.E.2d 167 (1960) (oyster shell in oyster); Adams v. Great Atlantic & Pacific Tea Co., 251 N.C. 565, 112 S.E.2d 92 (partially crystalized grain of corn in a package of corn flakes); Brown v. Nebiker, 229 Iowa 1223, 296 N.W. 366 (1941), (sliver of bone in pork chop); Courter v. Dilbert Bros., Inc., 19 Misc.2d 935, 186 N. Y.S. 334 (1958), (prune pit in jar of prune butter); Norris v. Pig'N Whistle Sandwich Shop, 79 Ga.App. 369, 53 S. W.2d 718 (1949), (particle of bone in pork chop sandwich); Goodwin v. Country Club of Peoria, 323 Ill.App. 1, 54 N. E.2d 612 (1944), (turkey bone in cream turkey).

A relatively recent expression of the foreign-natural view is found in Musso v. Picadilly Cafeterias, Inc., 178 So.2d 421 (La.App. 1965). While eating at defendant's cafeteria, plaintiff encountered a cherry stone or pit in a slice of cherry pie. The court stated that vendors are strictly liable for injuries occasioned by the serving of food which is unwholesome or deleterious or which contains a vice or defect, but, held that a restauranteur is not liable for injuries resulting from substances natural to the food served and inadvertently left therein. The court's reasoning is attractively simple: if the food contains only natural substances it cannot be unfit or unwholesome. The essence of the foreign-natural rule and the rationale behind it is captured in the following passage from Musso:

The rationale of the majority rule as expressed in the cited authorities is that substances which are a natural part of the food served are not considered foreign matter or substances if inadvertently left therein. On this premise it is reasoned that the presence of substances natural to the ingredients or finished product does not constitute breach of the vendor's implied warranty that the food is wholesome and fit for human consumption. The cases further hold that the warranty implicit in the sale of food must be construed in the light of the common knowledge with reference to the nature and character of the food being served. In this respect it is further reasoned common experience dictates that one eating the meat of animals, fowl or fish should do so with the knowledge such foods may contain pieces of bone. At 426.

Not all jurisdictions have followed the foreign-natural view; it has been rejected by several courts in favor of a "reasonable expectation" test. In Zabner v. Howard Johnson's Inc., 201 So.2d 824 (Fla.App. 1967), a consumer was injured by a piece of walnut shell concealed in a dish of maple walnut ice cream. Following the foreign-natural test the trial court entered judgment for the defendant. After tracing the history of this doctrine and its application the appellate court opted in favor of a test of "reasonable expectation." "The test should be what is `reasonably expected' by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation."

Observing that natural substances can often be as dangerous to the consumer as foreign objects such as a pebble or a piece of glass or wire, the Zabner court stated: "The...