Vincent v. Nicholas E. Tsiknas Co.
| Decision Date | 19 June 1958 |
| Parties | Lee C. VINCENT v. NICHOLAS E. TSIKNAS CO., Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
George M. Poland, Boston, Herbert E. Hunziker, Falmouth, for plaintiff.
Paul V. Power, Boston, for defendant.
Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.
This is an action of tort to recover damages for breach of an implied warranty of merchantability. The case was referred to an auditor whose findings of fact were to be final and therefore the report was in effect a case stated. Galluzzi v. City of Beverly, 309 Mass. 135, 34 N.E.2d 492. On June 17, 1954, the plaintiff, a married woman, purchased a jar of baby food from the defendant, a grocer in Woods Hole. The clerk who sold it to her knew that she was married. 'The purchase * * * was charged and the charge account was paid with her husband's money.' The jar was of glass made by a well known glass manufacturer and its contents packed by an equally well known packer. It was about three and one half inches in height, two inches in diameter, and covered with a metal cap which fitted over the lip of the jar. On the cover was printed 'Pry up gently at points indicated,' these points being indicated by theree arrows. No opener came with the jar and the plaintiff attempted to open it with what we understand to have been the ordinary type of opener used to open cans of beer. It was about three inches long and one half inch wide, and its end 'was turned down about one half inch and curled at the end so as to make a small lip.' It bore the label: 'Schmidt's of Philadelphia, Brewers since 1860.' The plaintiff demonstrated to the auditor the manner in which she applied the opener to the cover. She inserted it As a result the plaintiff's hand was cut. The auditor's report, after an introductory paragraph, has a heading 'Facts.' There follows in several paragraphs a statement of what happened and the out of pocket loss. Next comes a paragraph reading: 'I find that in the circumstances where no utensil was given or recommended for use on the jar, the female plaintiff could properly expect the shoulder of the glass jar would be strong enough to withstand the pressure exerted in the manner described, and the failure of the jar to withstand such pressure was a breach of warranty of merchantability.' Following this finding is a paragraph in which the auditor finds that the plaintiff purchased as a principal, beginning 'I find.' The concluding four paragraphs state respectively facts as to notice, and the findings as to liability under each of three counts.
The plaintiff excepted to the denial of her motion for judgment. There was a finding for the defendant, which we treat as an order for judgment. Duff v. Town of Southbridge, 325 Mass. 224, 226, 90 N.E.2d 12. The denial of the plaintiff's motion was correct.
The auditor does not state that his ultimate findings were based solely upon his subsidiary findings but this is not conclusive and we think it is apparent that the ultimate findings were so based. Mahoney v. C. & R. Construction Co., 311 Mass. 558, 42 N.E.2d 255; Hanifin v. C. & R. Construction Co., 313 Mass. 651, 661, 48 N.E.2d 913; McAndrew v. Quirk, 329 Mass. 423, 425, 108 N.E.2d 667; Deyo v. Athol Housing Authority, 335 Mass. 459, 463, 140 N.E.2d 393; Wasserman v. Roach, 336 Mass. ----, 146 N.E.2d 909. It follows that the conclusions of the auditor were subject to review. Wasserman v. Roach, supra, and cases cited.
A majority of the court think that the fact that 'no utensil was given or recommended for use...
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...where plaintiff failed to conduct "patch test" as instructed before applying hair dye which burned her); Vincent v. Nicholas E. Tsiknas Co., 337 Mass. 726, 729, 151 N.E.2d 263 (1958) (no breach of warranty where plaintiff's "inappropriate" use of a bottle opener to open a jar caused it to S......
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