Opinion
January 8, 1936.
January 31, 1936.
Negligence — Food — Foreign substance in — Evidence — Sufficiency — Reference to corporate defendant.
In an action for injuries resulting from the negligence of defendant in failing to use proper care in handling a meat product and in permitting glass to enter it before delivery to the restaurant where it was served to plaintiff, the evidence was held insufficient as a matter of law to establish liability of defendant, where plaintiff's evidence failed to exclude the possibilities that the glass might have been in the meat product before the defendant company came into its possession or after it had been sold to the restauranteur, and there was no specific identification by name of the defendant, a corporation, and its connection with the product.
Argued January 8, 1936.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.
Appeal, No. 372, Jan. T., 1935, by plaintiff, from judgment of C. P. No. 3, Phila. Co., March T., 1933, No. 473, in case of Mary J. Werner v. Armour Company. Judgment affirmed.
Trespass for personal injuries. Before PARRY, J.
The opinion of the Supreme Court states the facts.
Compulsory nonsuit entered. Motion to take off nonsuit overruled. Plaintiff appealed.
Error assigned was refusal of motion to take off nonsuit.
Louis Sherr, with him Albert H. Wernick, for appellant.
William N.J. McGinniss and Foulkrod, Sheppard, Porter Alexander, for appellee, were not heard.
Plaintiff alleged negligence in that the defendant failed to use proper precaution and care in handling liverwurst and in permitting glass to enter it before delivery to the restaurant where it was served to her in a sandwich. Defendant was not sued because it was a manufacturer. Therefore, our case Rozumailski v. Phila. Coca-Cola B. Co., 296 Pa. 114, has no application. We there held that where a food product is sold in the original container and the attending circumstances preclude the possibility that third parties might have introduced foreign substances into it, the manufacturer is liable for harmful effects caused by such substances, and that proof of injury resulting from them, without more, is sufficient to take the case to the jury.
Appellant's case is more analogous to Madden v. Great Atlantic Pacific T. Co., 106 Pa. Super. 474, but there the defendant, while not a manufacturer, had exclusive control over the packing and disposal of the tea from the moment of importation until it was sold to the consumer who was injured by its use.
Appellant excluded neither the possibility that the glass might have been in the liverwurst before the defendant company came into its possession, nor after it had been sold to the restaurateur, and this burden of proof, to establish a prima facie case, was hers. We might dispose of this case on this ground alone. But, when the action was tried, the only evidence as to who had possession of the article at the time it was delivered to the restaurateur was "Armour." There was no other identification of the defendant than this word. The defendant was a corporation and there should be a specific identification of it and its connection with the product that injured plaintiff. Appellant utterly failed to establish any liability of Armour Company through her testimony. See Burford v. McCue, 53 Pa. 427, 431.
Judgment affirmed.