Saunders v. Goldstein, 2958.
| Decision Date | 06 November 1939 |
| Docket Number | No. 2958.,2958. |
| Citation | 30 F. Supp. 150 |
| Parties | SAUNDERS v. GOLDSTEIN (SOUTHERN DAIRIES, Inc., et al., Third-Parties). |
| Court | U.S. District Court — District of Columbia |
Ralph Cusick, of Washington, D. C., for plaintiff Saunders.
John J. Carmody (of Whiteford, Marshall, Hart & Carmody), of Washington, D. C., for defendant Goldstein.
Edmund L. Jones (of Hogan & Hartson), of Washington, D. C., for defendant and third-party plaintiff Southern Dairies, Inc.
John E. Laskey and John L. Laskey, both of Washington, D. C., for third-party defendants Murrell and Louise D. Frazier.
This is a motion by the third-party defendant to dismiss the original complaint and the third-party complaint.
The complaint alleges: "That on or about November 21, 1938 * * * defendant, Southern Dairies, Inc., * * * was engaged in * * * manufacturing and distributing for public use and consumption ice-cream and confections including an ice-cream product known as `Drum Stick' which consisted of a cake cone filled with ice-cream and represented as being covered with nuts * * * and offered the said product to the general public including the plaintiff through various stores and drug stores and through the defendant, Samuel Goldstein, trading as Taylor's Pharmacy."
It is alleged that the plaintiff purchased from the defendant Samuel Goldstein, trading as Taylor's Pharmacy, the product known as "Drum Stick" and unknown to the plaintiff the said confection contained a stone which the plaintiff unexpectedly bit while eating the confection and the plaintiff became injured, and as a result of the negligence aforesaid plaintiff sustained damages.
It is to be noted that the complaint proceeds upon the theory of negligence.
The defendant, Southern Dairies, Inc., sought and obtained leave as a third-party plaintiff to make Murrell B. Frazier and Louise D. Frazier, trading as M. B. Frazier and Son, third-party defendants and served upon them a summons and third-party complaint pursuant to Federal Rule 14, 28 U.S.C.A. following section 723c.
The third-party complaint alleges that the third-party plaintiff, Southern Dairies, Inc., purchased the nuts used in the manufacture of the "Drum Stick" from the third-party defendants, and that in selling the nuts, the third-party defendants did enter into a contract of implied warranty that the said nuts were pure and fit for human consumption, and that the third-party plaintiff did purchase and accept the said nuts in reliance on said contract of implied warranty.
The third-party complaint further alleges that if any stone or other foreign substance got into a "Drum Stick", as alleged in the original complaint filed herein, it did not get into the said "Drum Stick" in the plant of the third-party plaintiff or through the said third-party plaintiff's agency in any manner, but was imbedded in said nuts when received from said third-party defendants in such a way as not to be discoverable through the use of reasonable care.
Continuing, the third-party complaint in paragraph 5 alleges that ...
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