Tonsman v. Greenglass

DeCourcy, J.

It is a long established general rule that the manufacturer of a defective article is not liable to an ultimate consumer, who has purchased from a middleman, for injuries resulting from negligence in its manufacture, where there is neither fraud nor privity of contract, and the defective article is not inherently dangerous. Tompkins v. Quaker Oats Co. 239 Mass. 147 , and cases cited. Windram Manuf. Co. v. Boston Blacking Co. 239 Mass. 123 . 17 A. L. R. 674 note, and cases collected.

The courts generally, although on various grounds, recognize as an exception to this rule the liability of the manufacturer to third persons for negligence in the preparation of food for human consumption: whether the unfitness of the food be due to deleterious ingredients, or to the presence of a foreign substance. Wilson v. J. G. & B. S. Ferguson Co. 214 Mass. 265 . Newhall v. Ward Baking Co. 240 Mass. 434, 436 . Tomlinson v. Armour & Co. 46 Vroom, *278 748 . Boyd v. Coca Cola Bottling Works, 132 Tenn. 23 . Ketterer v. Armour & Co. 200 Fed. Rep. 322. Freeman v. Schults Bread Co. 163 N. Y. Supp. 396 . Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678 . Drury v. Armour & Co. 140 Ark. 371 . Watson v. Augusta Brewing Co. 124 Ga. 121 . Salmon v. Libby, McNeill & Libby, 219 Ill. 421 . Davis v. Van Camp Packing Co. 189 Iowa, 775 . Parks v. C. C. Yost Pie Co. 93 Kans. 334 . Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488 . Craft v. Parker, Webb & Co. 96 Mich. 245 . Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864 . Ward v. Morehead City Sea Food Co. 171 N. C. 33 . Crigger v. Coca-Cola Bottling Co. 132 Tenn. 545 . Mazetti v. Armour & Co. 75 Wash. 622 . See also Bishop v. Weber, 139 Mass. 411 . 17 A. L. R. 689 note.

There was testimony on which the jury could find these facts: The plaintiff, through her agent, bought from a neighboring grocer a loaf of bread which was manufactured by the defendants and had on it their trade mark label, “ Greenglass Bread, the Best Bread Baked.” When she attempted to eat a slice cut from the loaf her teeth came in contact with a thin piece of iron, about half an inch long and wide, and two of her teeth were broken; the piece of metal was in the centre of the loaf, and was “ covered with green stuff,” and the bread “ smelled something terrible.” The process of.mixing the ingredients, and the machinery used, were described by one of the defendants, but no explanation was offered as to the presence of this foreign substance in the loaf. The jury reasonably could infer that it got into the bread during the process of manufacture, because it was imbedded in the centre or soft part, and the discoloration of the iron and the bad odor indicated that the metal was there while the dough was soft and during a period of fermentation or other chemical change. The trial judge did not apply the doctrine of res ipso loquitur, but properly submitted the issue of negligence to the jury. We find no error in the portion of his charge that was excepted to, especially when it is considered in connection with the context. The first and seventh requests were rightly denied. Wilson v. J. G. & B. S. Ferguson Co. supra. The defendants were not entitled *279 to those numbered 2, 3, 6 and 8, which selected isolated facts for emphasis and comment; and the subject matter was adequately and correctly covered by the charge. Altavilla v. Old Colony Street Railway, 222 Mass. 322 .

Exceptions overruled.