Newhall v. Ward Baking Co.

• Decision Date: 03 March 1922
• Citation: 240 Mass. 434,134 N.E. 625
• Parties: NEWHALL v. WARD BAKING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 434

134 N.E. 625

NEWHALL

v.WARD BAKING CO.

Supreme Judicial Court of Massachusetts, Essex.

March 3, 1922.

Exceptions from Superior Court, Essex County; Lloyd E. White, Judge.

Action of tort by Alice M. Newhall against the Ward Baking Company to recover for an injury caused by the alleged presence of a part of a nail in a loaf of bread purchased by plaintiff from a retailer, who had purchased it from defendant. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.

Defendant excepted to the denial of its motion for a directed verdict and to a part of the charge authorizing a recovery if the nail was in the bread by reason of negligence. The court charged in part that:

‘This action is based upon the assumption that the defendant has caused some fraud to be represented by the defendant; that when it said that it was pure that it either knew or ought to have known that the nail was there, or it ought not to have made representations that it was $100 per cent. pure without knowing whether there was a nail in the bread or not.’James W. Sullivan and Joseph F. Doyle, both of Lynn, for plaintiff.

Wm. M. Noble, of Boston, for defendant.

DE COURCY, J.

[1] Part of a nail, in a loaf of bread manufactured by the defendant, lodged in the plaintiff's throat. She bought the bread from a retail grocer; and as there was no contract between her and the defendant, there is no liability based on implied warranty of the wholesomeness of food sold for immediate consumption. Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785, L. R. A. 1916D, 1006;Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 120 N. E. 225, 5 A. L. R. 242; L. R. A. 1917F, 472 note. While the declaration contained no count in contract, it did contain one in tort for negligence. The general rule that a manufacturer of an article is not liable for negligence in its manufacture to a third person with whom he has no contractual relations, is subject to certain well-settled exceptions. Tompkins v. Quaker Oats Co., 239 Mass. 147, 131 N. E. 456, and cases collected. One of these exceptions recognizes the liability of a tort feasor to third persons for negligence in the preparation of food for human consumption. The tendency of courts is to hold such manufacturer to a high degree of care, because of the serious consequences to human life likely to follow his negligence. Wilson v. Ferguson Co, 214 Mass. 265, 101 N. E. 381. And manifestly food which contains a nail or other like foreign substance may be quite as unfit for consumption as if it were composed of deleterious ingredients. Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N. E. 407, 5 A. L. R. 1100;Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152,1 L. R. A. (N. S.) 1178, 110 Am. St. Rep. 157:Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S. W. 155, L. R. A. 1916D, 877, Ann. Cas. 1917B, 572. See Ash v. Childs Dining Hall Co., 231 Mass. 86, 120 N. E. 396, 4 A. L. R. 1556;Liggett & Myers Tobacco Co. v. Cannon, 132 Tenn. 419, 178 S. W. 1009, L. R. A. 1916A, 940, Ann. Cas. 1917A, 179. In the present case, however, it is unnecessary to consider the liability of the defendant as a tort feasor for negligence, because the trial judge directed a verdict for it on the second count, and the correctness of that ruling is not before us on the defendant's exceptions.

The count on which the plaintiff got a verdict was based on deceit, and is similar to that in Roberts v. Anheuser Busch Brewing Association, 211 Mass. 449, 98 N. E. 95. The alleged representation was printed upon the wrapper:

‘This bread is 100 per cent. pure, made under the most modern, scientific process; has very special merit as a healthful and nutritious food. The water of which this bread is made contains Arkady yeast food,’ etc.

The representation is claimed to be false because of the presence in the loaf of bread of the top end of a wire nail, described as follows:

‘The nail has a circular head and at its widest part is 1/4 inch. The length of the nail without the head is 9/32 of an inch. The diamete of the nail is 3/32 of inch.’

It seems quite apparent that the words relied on-‘100 per cent. pure’ and ‘healthful * * * food’-were used in the sense of containing no deleterious or...