Rabb v. Covington
| Citation | 2 S.E.2d 705,215 N.C. 572 |
| Decision Date | 10 May 1939 |
| Docket Number | 530. |
| Parties | RABB v. COVINGTON et al. |
| Court | North Carolina Supreme Court |
This is an action to recover damages for an injury which the plaintiff alleges he sustained by reason of a foreign substance contained in food sold by the defendants for his consumption. The complaint is based both upon negligence and warranty; but upon the trial of the case it appeared that the plaintiff thought himself unable to successfully proceed against the White Provision Company, the manufacturers, upon the ground of negligence, and nonsuit as to that defendant was not resisted.
The evidence discloses that the plaintiff bought from the defendants, through his mother, some "weiners", or sausages, for his lunch. The mother made the weiners into sandwiches and on the next day plaintiff carried them with him in a lunch box to his work and at lunch time undertook to eat them. He bit into one of the sandwiches, felt his teeth break, and felt pain. He put the food out in his hand examined it, and found a piece of metal sticking in the meat. The metal had broken the teeth and plaintiff spit out little parts of them. Plaintiff carried the sandwiches home and showed them and the metal which he had found to his mother. He then went to a dentist, Dr. Watkins, who told him that two of his teeth were broken. He later took the sandwiches to Mr Burwell's office and there found another piece of metal a little larger than the first piece. The pieces of metal were exhibited to the jury.
Dr Watkins testified that the plaintiff came to him and, upon examination, he found two of his teeth badly broken.
A fellow workman corroborated the statement of the plaintiff that he had seen him when he bit into the sandwich and saw the metal.
It is conceded by the plaintiff that the sausage in question was in a casing and that this constituted a sealed container.
On the conclusion of the evidence the defendants moved for judgment as of nonsuit, which motion was allowed, and plaintiff excepted and appealed.
C L. Burwell, E. Riggs McConnell, and John James, Jr., all of Charlotte, for appellant.
John H. Small, Jr., of Washington, and Jake F. Newell, of Charlotte, for appellees.
The question presented for our decision is whether a sale of food by a retail dealer to a customer for his immediate consumption carries with it a warranty that the food is merchantable and fit for human consumption when the article of food is contained in a sealed package, affording no opportunity for inspection of its contents, and was bought in that condition by the retailer from a manufacturer. The plaintiff contends that there is such a warranty and that it is not abated or disturbed by the fact that the food was at the time of its purchase by defendants and its sale to plaintiff in a sealed container. The defendants contend that inasmuch as the food was sold in such sealed container and neither the seller nor buyer had an opportunity to inspect it, or that at least their opportunities were equal, the doctrine of caveat emptor applies and no warranty is implied.
To accept the view urged by the defendants would be to make an exception to the prevailing rule, in favor of canned goods or food sold in sealed packages, in deference to what is termed modern commercial developments in food distribution, which, it is contended, would make the application of the warranty rule inconvenient and unfair to dealers. No case demanding a decision of this point seems to have been presented to the Court and it has not, therefore, at least not consciously, made such a distinction.
Authorities are divided on the subject, seeming to fall on one side or the other of the line accordingly as they appraise the relative importance of the policies involved, or the consequences which might follow the adoption of one or the other.
Modern conditions of living, the conveniences and necessities of civilization, which have caused infinite division of labor in the production, processing and distribution of food products whereby in its preparation for final consumption it passes through many hands and assumes many forms, may have rendered many of the old simple rules of law relating to the subject difficult of application and productive of hardship. Conceding that the development and interpretation of law must, as far as possible, be kept in accord with these changing conditions of society to which they apply, we may observe that drastic changes for the purpose of readjustment are usually matters for the lawmaking body and not for the court. Here we have no sales law applicable to the situation, although the inadequacy of common law rules to do justice in the matter, if such exists, should have been long apparent to the lawmaking bodies. In this case, too, we are confronted with the argument that if we were free to make a choice of policies that choice must be made...
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