Sapiente v. Waltuch
| Decision Date | 03 October 1940 |
| Citation | 15 A.2d 417,127 Conn. 224 |
| Court | Connecticut Supreme Court |
| Parties | SAPIENTE v. WALTUCH. |
Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.
Action by Raffie Sapiente against Benjamin Waltuch for injuries allegedly caused by breach of warranty by the defendant in the sale of food to plaintiff, brought to the court of common pleas and tried to the jury. Verdict and judgment for plaintiff, and the defendant appeals.
No error.
Manuel S. Sachs and Joseph I. Sachs, both of New Haven, for appellant.
John Henry Sheehan and George W. Chisaski, both of New Haven, for appellee.
Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.
The plaintiff claimed that she was made ill by eating macaroni infested with weevils. The only question on this appeal is whether the court erred in refusing to set aside the verdict as against the evidence and as excessive.
The evidence, considered in the light most favorable to the plaintiff, disclosed the following facts: On July 23, 1938 the plaintiff, a housewife, went to the grocery store of the defendant and asked for three packages of assorted macaroni. Three packages of the V. LaRosa & Sons brand were delivered to her, she paid for them and took them home. She was familiar with this brand, but asked for no special kind. When she reached home she cooked a portion for herself, put some butter on it and ate it. Shortly thereafter she became ill and vomited. On inspecting the macaroni she found it was full of little black bugs. Her illness continued for some time and she was under the care of a doctor. The next day her husband consulted a lawyer and on August 17, 1938, the latter notified the defendant.
In support of his claim that the verdict should have been set aside, the defendant contends (1) that the plaintiff did not rely on the defendant's skill or judgment, (2) that there was a contract to sell a specified article under its patent or trade-name, (3) that she failed to give the requisite notice, (4) that there was no evidence that the bugs caused her illness, (5) that the plaintiff was guilty of contributory negligence, and (6) that the damages were excessive.
No extended discussion of the first two claims is necessary. The facts which the jury could reasonably have found, considered in the light of General Statutes, § 4635, subdivisions (1) and (4), negative the claims of the defendant in this regard. It shows that there was no contract to sell a specified article under its trade-name and that the plaintiff relied on the skill and judgment of the defendant. Burkhardt v. Armour & Co., 115 Conn. 249, 256, 161 A. 385, 90 A.L.R. 1260.
The injury occurred July 23, and notice was mailed the defendant by the plaintiff's attorney on August 17. While the statute, General Statutes, § 4669, requires that notice be given within a reasonable time, the jury could reasonably have found that, under the circumstances, notice in a little over three weeks was a compliance therewith. ‘ Where the question whether proper notice was given depends upon the construction of a written instrument, or the circumstances are such as lead to only one reasonable conclusion, it will be one of law; but where the conclusion involves the effect of various circumstances capable of diverse interpretation, it is necessarily one of fact for the trier.’ Truslow & Fulle, Inc. v. Diamond Bottling Corp., 112 Conn. 181, 188, 151 A. 492, 495, 71 A.L.R. 1142. The issue of notice in this case falls within the latter classification.
The sequence of events, according to the plaintiff, was that she ate the macaroni, became violently ill, and then saw the bugs. Her doctor testified that her illness resulted from the effect of the sight of the bugs after she had eaten the macaroni rather than from eating them. The jury was entitled to believe the plaintiff rather than her doctor and to find that the plaintiff's illness resulted from eating the...
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