Minutilla v. Providence Ice Cream Co.

• Court: Rhode Island Supreme Court
• Writing for the Court: BARROWS, J.
• Citation: Minutilla v. Providence Ice Cream Co., 50 R.I. 43, 144 A. 884 (R.I. 1929)
• Decision Date: 27 February 1929
• Docket Number: No. 6595.,6595.
• Parties: MINUTILLA v. PROVIDENCE ICE CREAM CO.

144 A. 884

MINUTILLA

v. PROVIDENCE ICE CREAM CO.

No. 6595.

Supreme Court of Rhode Island.

Feb. 27, 1929.

Exceptions from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Action by Angelo Minutilla against the Providence Ice Cream Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled, and case remitted for entry of judgment.

Rosenfeld & Hagan and C. Bird Keach, all of Providence, for plaintiff.

James J. McCabe, of Providence, for defendant.

BARROWS, J. Plaintiff, a customer in a restaurant, purchased and ate therein a portion of ice cream manufactured and put up by defendant in small parcels, each wrapped in tissue paper. The cream was kept in a cooler furnished by defendant, the pieces being taken out singly and served in the wrappers. Imbedded in the middle of plaintiff's parcel were four very small particles of glass which scratched plaintiff's throat and two of which a physician removed from his stomach by means of a stomach pump. The fragments of glass were so small that they probably would have been swallowed unnoticed except for the scraping of plaintiff's throat and a subsequent crushing of a spoonful of cream to ascertain what the hard substance might be. Return to the counterman and examination by him disclosed another bit of glass in the "middle" of the portion which had been served to plaintiff. Plaintiff who incurred some medical expenses and suffered for a time with stomach trouble brought suit in "trespass on the case for negligence," and recovered a verdict for $425, which was not excessive.

The declaration contained two counts: The first, asserting negligence in the manufacture of the cream; the second, asserting the presence of glass but without averment of negligence. Defendant is before this court claiming numerous errors in the course of the trial, including refusal of the court to direct a verdict for defendant, and the court's subsequent refusal to grant defendant's motion for a new trial, based upon the ground that the verdict was against the evidence.

1. The trial court treated the case under the pleadings as an action of trespass on the case for negligence. The plea was not guilty. There is a suggestion now made that the second count sounded in contract for breach of an implied warranty. Hertzler v. Manshum, 228 Mich. 416, 200 N. W. 155. As pointed out in Roberts v. Anheuser Busch Brewing Ass'n, 211 Mass. 449, 98 N. E. 95, while a breach of warranty sometimes may be the basis for a tort action of deceit, cf. Newhall v. Ward Baking Co., 240 Mass. 434, 134 N. E. 625, there can be no warranty without privity of contract. For breach of warranty under the Sales Act (G. L. 1923, §§ 4427-4502) compare Smith v. Gerrish, 256 Mass. 183, 152 N. E. 318. No pretense is made that the count asserted a right of action under the Sales Act. No actual privity was claimed to exist. In a single action recovery cannot be had in both contract and tort. Drury v. Armour & Co., 140 Ark. 371, 216 S. W. 40; O'Brien v. Louis K. Liggett Co., 255 Mass. 553, 152 N. E. 57, 47 A. L. R. 146. The second count may have been an attempt to follow the Massachusetts practice of suing in contract or tort and electing on which count to go to the jury. No warrant exists for such procedure here. It may have been inserted on the theory that it set forth an action of trespass on the case for negligence by reason of the doctrine of res ipsa loquitur. If so, its allegations were insufficient. Bennett v. Connery & Co., 48 R. I. 350, 138 A. 50. The court rightly disregarded the second count and tried the case as one controlled by the! ordinary requirements of an action for negligence wherein plaintiff, to succeed, always has the duty of establishing defendant's negligence.

2. Defendant asked for the direction of a verdict on the ground that it had violated no duty to plaintiff because no privity of contract existed between them. McCaffrey v. Mossberg & Granville Mfg. Co., 23 R. I. 381, 50 A. 651, 55 L. R. A. 822, 91 Am. St. Rep. 637; Slattery v. Colgate Co., 25 R. I. 220, 55 A. 639. It asserted that ice cream was not an "imminently dangerous substance," and that defendant, in the absence of privity of contract between the maker and the injured consumer, was not liable. While the McCaffrey Case was based on lack of privity, it inferentially suggests, on page 386 of 23 R. I. (50 A. 652), that "the furnishing of provisions which endanger human life or health" may call for the application of a different rule. Since that time, modern conditions of preparing and marketing food products have necessitated the adoption of the general rule that a maker who through a retailer furnishes unwholesome food or drink for public consumption may be directly liable to the injured consumer who purchases from the retailer. 17 A. L. R. 688; 11 R. C. L. 1123; 26 C. J. 785. Some courts have said that, if defendant negligently prepares the food, damage to a consumer may reasonably be anticipated, and no privity of contract is necessary. Ketterer v. Armour & Co. (D. C.) 200 F. 322, affirmed in (C. C. A.) 247 F. 921, L. R. A. 1918D, 798; Tomlinson v. Armour, 75 N. J. Law, 748, 70 A. 314, 19 L. R. A. (N. S.) 923; Parks v. C. C. Tost Pie Co., 93 Kan. 334, 144 P. 202, L. R. A. 1915C, 179; Ternay v. Ward Baking Co. (Sup.) 167 N. Y. S. 562 (glass); Freeman v. Schultz Bread Co., 100 Misc. Rep. 528, 163 N. Y. S. 397; Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152, 1 L. R. A. (N. S.) 1178, 110 Am. St. Rep. 157 (glass); Meshbesher v. Channellene Oil Co., 107 Minn. 104, 119 N. W. 428. 331 Am. St. Rep. 441; Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791; Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S. W. 155, L. D R. A. 1916B, 877, Ann. Cas. 1917B, 572; rury v. Armour, 140 Ark. 371, 216 S. W. 40; Davis v. Van Camp Packing Co., 189 Iowa, 775, 176 N. W. 382, 17 A. L. R. 649 (jury, manufacturer's care not conclusive); Haley v. Swift, 152 Wis. 570, 140 N. W. 292. Some have likened the sale of food to that of poisonous drugs and patent medicines, the safe compounding of which is demanded by public policy, Richenbacher v. California Packing Corporation, 250 Mass. 198, 145 N. E. 281; Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715, others have found a privity of contract between maker and ultimate consumer in what has been called an implied warranty of whole-someness, Davis v. Van Camp Packing Co., supra. Some, accepting the general doctrine that no action is maintainable without privity, have made an exception in cases of food. Mazetti v. Armour, 75 Wash. 622, 135 P. 633, 48 L. R. A. (N. S.) 213, Ann. Cas. 1915C, 140. Some, as in Massachusetts, have allowed recovery based on either implied warranty or negligence, but not in the same action, Richenbacher v. California Packing Corporation, supra; Davis v. Van Camp, supra; Chysky v. Drake Bros. Co., 192 App. Div. 186, 182 N. Y. S. 459, and some only for negligence, Drury v. Armour, supra. No error was made in refusing to direct a verdict for lack of privity of contract, and defendant, if negligent, was liable to plaintiff.

3. Was the evidence sufficient to warrant submission to the jury and to sustain the finding for plaintiff? Perhaps in no state have so many and recent cases been brought for putting out dangerous foodstuffs as in Massachusetts. One of the latest is O'Brien v. Louis K. Liggett Co., 255 Mass. 553, 152 N. E. 57, 47 A. L. R. 146 (glass), wherein the court held that the mere presence of glass in strawberry shortcake served by defendant was not evidence to warrant an inference that defendant was negligent. The case followed Ash v. Childs, 231 Mass. 88, 120 N. E. 396, 4 A. L. R. 1556, which is adversely criticized in 5 Wigmore on Evidence (2d Ed.) p. 496, as casting an improper burden on plaintiff. The doctrine of res ipsa loquitur in some states has been applied only in cases of canned goods or those in sealed packages. Richenbacher v. California Packing Corporation, supra. Without discussing the limitations of the res ipsa loquitur doctrine, we may note that the court in this case expressly stated it to be inapplicable, and plaintiff assented thereto. Defendant, however, urges that the court substantially permitted the jury to find its verdict by application of the doctrine of res ipsa loquitur in spite of plaintiff's disclaimer of reliance thereon and of the explicit statement of the court. The transcript shows that in the extended discussion of the law between the court and counsel for the defendant the court said that defendant's negligence could not be assumed; it must be established by a preponderance of evidence. The position of the court is fairly shown by defendant's brief in this court, where his counsel complains (page 23): "The court charged that in view of the practical impossibility for one who buys a food product to know the conditions under which that particular loaf of bread or piece of ice cream was manufactured, the law, in view of that difficulty, if a person is injured by a food product and he can show, by proper probative evidence, that he bought that food product in the original package in which it was put up by the maker and that in...