Ward Baking Co. v. Trizzino

*230 OPINION OF COURT.

The following is taken, verbatim, from the opinion.

LEVINE, J.

In view of the seeming conflict -of authorities upon the subject, there being no direct authority in Ohio covering cases exactly like the case at bar, we find ourselves on virgin territory and are free to resort to our own processes of reasoning and considerations of the demands of justice.

The Baking Company, when it delivered the cake' in question to the grocery man, to say the least, impliedly represented to the public, who is the ultimate consumer, that this cake is free from injurious substances and fit for consumption as food. There is no doubt that an implied warranty arises as between the grocery man, who purchased the cake from the Baking Company, and the Baking Company. Since the Baking Company was fully aware that the grocery man did not purchase the cakes for his own consumption, but purchased •the same, instead, for the purpose of selling the same to members of the public who are the ultimate consumers, this implied obligation, which unquestionably arose in favor of the grocery man, may be legally said to have so arisen for the benefit of the consumer. The grocery man-who is, in effect, merely a distributing medium for the articles of food furnished by the Baking Company, and the Baking Company having had full knowledge of that fact, dealt with each other and entered into a contractual relationship for the benefit of the public, which is the ultimate consumer. In other words, this contract between the grocery man and the Ward Baking Company, was a contract, to all intents and purposes, entered into for the benefit of a third party, to-wit, the ultimate consumer. Whatever implied warranty arises in favor of the grocery man, who established the contractual relationship with the Baking Company, is for the benefit of this third party, namely, the ultimate consumer.

While we have not made a minute examination of the authorities cited and which are claimed to bear upon the legal point in question, we are content to place ourselves in the catagory of the minority states, even if such be the case, and to hold that there is imposed the absolute liability of a warrantor, on the manufacturer of articles of food, in favor of the ultimate purchaser, even though there are no direct contractual relationships between such ultimate purchaser and the manufacturer.

It is ' urged by the Baking Company that the allegation of negligence, as now found in defendant in error’s petition, does not set forth any operative facts to show wherein the Baking Company was negligent; that -it is either a conclusion of law and therefore meaningless, or is intended to invoke the doctrine of res ipsa loquitur, which cannot be applicable to the'case at bar.

In order to justify the submission of the question of negligence in the case at bar, it is sufficient to plead that the defendant was negligent by reason of said needle being imbedded in said cake, and proof offered upon that point will raise a question for the decision of the jury. It is not necessary to resort to the doctrine of res ipsa loquitur in order to justify such action by the court. The presence of the needle in the cake bearing the name of the Ward Baking Company is an evidential fact from which negligence may be inferred. The other evidence offered by the plaintiff eliminated the probability or possibility of the needle having become imbedded in the cake after it left the Ward Baking Company.

Considerations of public policy demand that the utmost care and caution be exacted from the manufacturer of articles of food, who not only manufactures the same, but causes the *231 same to be delivered to grocery men, bakeries, and so forth for the purpose of general distribution and sale of those articles to members of the general public. The consumer has a right to rely upon the implied representation of the Baking Company that these articles, bearing its name, are not only free from injurious substances, but are fit for consumption, as food.

It is urged that the verdict rendered by the jury is so high and excessive as to demonstrate that the jury was influenced by passion or prejudice.

We hold that, in a case like the case at bar, the jury has a right to consider the mental suffering caused by the anxiety and fear of the ensuing consequences while the needle was in defendant in error’s system. There is evidence not only of pain and suffering and mental anguish, but of the loss of weight, together with hospital expenses, X-rays and medical treatment, which lasted for nearly one year. We find no misconduct of counsel for defendant in error.

In view of the above consideration, the judgment of the Common Pleas will be affirmed.

(Sullivan, PJ. and Vickery, J, concur.)