Williams v. . Elson , 218 N.C. 157 ( 1940 )

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 compounding 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 13 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 someone 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 glass; it was about the size of my little finger nail;" the plaintiff then took the remainder of the sandwich to the defendant's drug store and showed it and the piece of glass to the defendant; while on his way back to defendant's drug store the plaintiff felt with his fingers other glass in the remaining portion of the sandwich; after showing the sandwich to defendant the plaintiff took it back to his car and drove home; and that his dog ate the remainder of the sandwich in the car. When plaintiff got home he called his family physician who prescribed for him, that he suffered in both body and mind as a result of having eaten a part of the sandwich containing glass; that his dog became sick.

We are of the opinion, and so hold, that under authority of Rabb v.Covington, 215 N.C. 572, there was error in sustaining the motion for judgment as in case of nonsuit. The allegation of a breach of warranty is sufficient, and the evidence when construed most favorably to the plaintiff is sufficient to support the allegation. When the defendant sold the sandwich to the plaintiff there was at least an implied warranty that it was fit for the purpose for which it was sold, namely, for human consumption, Ward v. Sea Food Co., 171 N.C. 33, and, nothing else appearing, the finding of glass therein was evidence of a breach of this warranty, and presented an issue for the jury.

The defendant in his brief contends that there is a distinction betweenRabb's case, supra, and the instant case in that the evidence shows that the sandwich in the instant case was delivered to the plaintiff for immediate consumption at the place of delivery, whereas the sausage in theRabb case, supra, was delivered for future consumption away from the place of sale, and that therefore the instant case is governed by the principle enunciated in some jurisdictions to the effect that food delivered for a consideration for immediate consumption at the place of delivery constitutes a service rendered, rather than, a sale, and that the deliverer thereof owes to the consumer only the duty to exercise due care to see that the food delivered is fit for human consumption, and is not bound by any contractual relations growing out of an implied warranty of fitness. Niskyv. Childs Co., 103 N. J., 464, 135 A. 805, 50 A.L.R., 227, and annotations thereunder. Such principle being stated in an old case as follows: "An innkeeper . . . does not sell but utters his provisions."Parker v. Flint, 12 Mod., 1303, 88 Eng. Reprint, 1303. With this contention we cannot concur for the reasons, inter alia, it does not clearly appear from the evidence that the sandwich delivered to the plaintiff by a person from the drug store of the defendant was for immediate consumption at the place of delivery, nor does it appear from the evidence that the defendant made or prepared the sandwich. Hence, we are not called upon at the present time to determine whether we will agree with the principle enunciated in the Nisky case, supra, or adopt the opposite view enunciated by the Courts of New York and Massachusetts. Temple v. Keeler, 238 N.Y. 344,144 N.E. 635, 35 A.L.R., 920, and Friend v. Childs Dining Hall Co.,231 Mass. 65, 120 N.E. 407, 5 A.L.R., 1100.

The judgment of the Superior Court is

Reversed.