Williams v. Elson, 89.
| Decision Date | 18 September 1940 |
| Docket Number | No. 89.,89. |
| Citation | 218 N.C. 157,10 S.E.2d. 668 |
| Parties | WILLIAMS. v. ELSON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; A. Hall Johnston, Special Judge.
Action by Robert Rouse Williams against John R. Elson for injury allegedly sustained by reason of a foreign substance contained in a barbecued beef sandwich sold by defendant to plaintiff. From a judgment as in case of nonsuit, the plaintiff appeals, assigning error.
Reversed.
Ford & Lee, of Asheville, for appellant.
Harkins, Van Winkle & Walton, of Asheville, for appellee.
This is an action to recover damages for injury which the plaintiff alleges he sustained by reason of a foreign substance, glass, contained in a barbecued beef sandwich sold by the defendant to him for his consumption. The complaint is based both upon negligence and upon breach of warranty. When the plaintiff had introduced his evidence and rested his case, the court sustained the defendant's motion for judgment as in case of nonsuit, and entered judgment accordingly. The plaintiff appealed, assigning as error the action of the court.
In so far as the alleged cause of action in tort, negligence, is concerned, we are of the opinion that the motion for judgment as in case of nonsuit was properly allowed. This is virtually conceded in the appellant's brief.
As to the alleged cause of action in contract, a breach of warranty, we will first consider the complaint. Paragraph VII thereof is as follows: "That, as this plaintiff is advised, informed and believes, the defendant, by and through his servants, agents and employees, prepared, compounded and manufactured sandwiches, pies and other food, and offered for sale and sold to the general public such foods at its stores to be consumed by such customers, and warranted said articles so sold for human consumption to be fresh and to contain no deleterious, poisonous or other substances injurious to the life or health of persons who might purchase the same." And paragraph XI thereof is in part as follows: "That by reason of the negligence and carelessness of the defendant in com-pounding and manufacturing foods containing such foreign, poisonous and deleterious substances, and offering to sell and selling impure, deleterious and unwholesome food to the plaintiff in violation of its warranty and in violation of the law, the plaintiff has been greatly injured and damaged in that he has been rendered physically unable to do any work since consuming said food. * * * " When liberally construed, we are of the opinion that an action for a breach of warranty has been alleged.
The evidence tends to show that on the 13th day of December, 1938, the plaintiff went to the drug store of defendant near Enka and purchased a barbecued beef sandwich which was delivered to him wrapped up by some one from the store; that the plaintiff took the sandwich with him and hunted for about three hours, and then drove to Wilson's store in Canton for shells, and while there started to eat his lunch; he unwrapped the sandwich and took four bites thereof without untoward incident, but when the fifth bite was taken he "bit down on something hard, " which "cut my tongue and gums, " that he "spit it out of my mouth and discovered that it was a piece of...
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Davis v. Radford
...purchaser. Ward v. Morehead City Seafood Co., 171 N.C. 33, 87 S.E. 958; Rabb v. Covington, 215 N.C. 572, 2 S.E.2d 705; Williams v. Elson, 218 N.C. 157, 10 S.E.2d 668. However, in Thomason v. Ballard & Ballard Co., 208 N.C. 1, 179 S.E. 30, it was held that for an injury from unwholesome food......
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Adams v. Great Atlantic & Pacific Tea Co., 607
...a sealed container, and had in them pieces of metal. Upon authority of Rabb v. Covington, a nonsuit was held improper in Williams v. Elson, 218 N.C. 157, 10 S.E.2d 668, where defendant sold plaintiff for consumption a barbecued beef sandwich containing glass. In Davis v. Radford, 233 N.C. 2......
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King v. Coley
... ... can prove it; they must first plead it, then prove it ... McLaurin v. Cronly, supra ... Williams ... v. Elson, 218 N.C. 157, 10 S.E.2d 668, upon which ... plaintiffs rely, is distinguishable. There, breach of ... warranty was clearly and ... ...