Richenbacher v. California Packing Corp.

• Decision Date: 31 October 1924
• Citation: 145 N.E. 281,250 Mass. 198
• Parties: RICHENBACHER v. CALIFORNIA PACKING CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 198

145 N.E. 281

RICHENBACHER

v.CALIFORNIA PACKING CORPORATION.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 31, 1924.

Exceptions from Superior Court, Worcester County; T. Hammond, Judge.

Action of tort by Grace R. Richenbacher against the California Packing Corporation for damages from biting a piece of glass while eating spinach. Findings for plaintiff, and defendant brings exceptions. Exceptions overruled.

M. M. Yaylor, of Worcester, for plaintiff.

C. M. Thayer, of Worcester, for defendant.

PIERCE, J.

This is an action of tort to recover damages caused to the plaintiff by biting upon a piece of glass while eating spinach. The spinach had been taken from a can purchased from a retailer, who had purchased it from a wholesale grocer to whom it had been sold by the defendant.

The declaration was in two counts; the first alleging a misrepresentation by the defendant, and the second alleging negligence of the defendant in that it ‘carelessly and negligently allowed and put within and concealed within the can of spinach a piece or pieces of glass.’ At the close of the evidence, which the bill of exceptions does not state is fully reported, the defendant moved for a directed ‘verdict’ on the first count. This motion was allowed and no exception appears to have been taken thereto. The defendant then moved for a directed ‘verdict’ on the second count. This motion was denied; the defendant excepted to its disallowance and the presiding judge found for the plaintiff and made a ‘Statement of Findings and Rulings' in part as follows:

‘The defendant manufactures and sells various canned food products intended for food for human consumption, among which is a brand of canned spinach known as ‘Del Monte.’ The spinach is prepared and canned at the factory of the defendant, where the cans are sealed in such a manner that they can be opened only by cutting out the top of sides of the can with a can opener. In the year 1919 and 1920 the defendant sold to the United Wholesale Grocery Company, a wholesale grocery store in Worcester, Massachusetts, some of the Del Monte canned brand of spinach which had been prepared and canned by it in its factory. The Lake Shore Grocery Stroe, a retail store in Worcester, bought some cans of this spinach from the United Wholesale Grocery Company, and the plaintiff bought one of these cans from the Lake Shore Grocery Store. In eating the spinach the plaintiff was injured by a piece of glass which was contained in the spinach at the time the can was opened. The plaintiff's tooth was broken and the roof of her mouth was considerably cut. The can contained, at the time it was opened, three pieces of glass of dimensions as follows: One was about three quarters of an inch long, sharpened at both ends, apparently chipped. It was thick glass, grayish in color. Another piece was about an inch and a quarter to an inch and half long. The third piece was wedge-shaped, about half an inch wide at the bottom, and about one and one-half to one and three-quarters inches long. The side of one piece had a rounded edge. I find that the method and process by which spinach was prepared and canned by the defendant was as stated in its answer to the plaintiff's interrogatory No. 19, as modified by the plaintiff's motion to strike out. There was no evidence that the defendant had been negligent in preparing and canning the spinach in question, unless the fact that the glass was in the can when it was...