On appeal by defendant from judgments rendered by the trial judge of the Second Judicial District Court of Hudson county, sitting without a jury, in favor of plaintiffs. Affirmed.
For the appellant, Insley, Vreeland & Decker (William E. Decker, of counsel).
For the appellees, Wiener & Stanziale (Charles A. Stanziale, of counsel).
Before Justices Parker, Lloyd and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The plaintiff Emily A. Cassini, wife of Joseph C. Cassini, purchased a bar of "Baby Ruth" candy from one, Carolina Generazzo, a retail candy store keeper. Save as the deposition of Karl E. Keefer, vice-president of the defendant company, disclosed that it experienced some difficulties in the imitation of its products by competitors, defendant did not deny that the candy in question was manufactured by it. On the part of the plaintiffs, Mrs. Generazzo, when asked whether this candy which she purchased from a jobber, was manufactured by the defendant, answered, "I think so." Further examination of the last mentioned witness disclosed the following: "Q. Now, does this candy indicate that it was made by ." The court "Don't ask her that. You are offering the wrapper and everything." Mr. Stanziale -- "Is there any objection to this?" Mr. Symanski -- "No." At all events no point is made by defendant on this score. The candy so purchased by the plaintiff was wrapped in defendant's special paper and apparently had some sort of seal on it. Examination of plaintiff: "Q. And is this the seal that was wrapped around the candy at the time? (showing the witness seal). A. Yes, it is." Later the same witness testified that while she was home she took a bite of the candy, swallowed it and had a funny taste in her mouth. She looked at the other portion of the candy and said she saw another worm. She vomited and became sick. She further testified: "Q. I mean before you threw up -- as you say -- did you have any pain? A. Before I threw up? No, after I swallowed the candy worm -- then after that I threw up." She was in bed for three days and incapacitated for about a week.
Defendant moved for a nonsuit. The motion was based
on substantially the following grounds: (a) That there was no proof of any contractual relationship between the parties; (b) that there was no proof that there was any worm in the candy that was eaten, and (c) that there was no proof of negligence on the part of the defendant in the premises.
The defendant then introduced the deposition of its vice-president, Mr. Keefer, which detailed the process of the manufacture of the "Baby Ruth" candy; the high standard or quality of its ingredients, and the general care on its part in the manufacture thereof, all of which tended to exculpate defendant of any negligence in the premises. A motion was made for a directed verdict on practically the same grounds as those advanced on the motion for a nonsuit. This motion was also denied. The court permitted the addition of a "third count," based on an implied warranty and later rendered a judgment of $150 in favor of the wife and one for $50 in favor of the husband.
The failure to grant the motions of nonsuit and to direct a verdict constitutes the sole specifications of determination with which the appellant is dissatisfied in point of law.
It appears to us that the determinative fact involved in this case is (1) whether the plaintiff became ill and suffered the injuries complained of as a result of having eaten a worm, or the emanations from it had permeated the candy that she had eaten, and one or the other of these had physically affected the woman; or (2) whether she became ill and suffered the injuries complained of merely because of the sight of a worm in the candy. Legac v. Vietmeyer Bros., 7 N.J. Mis. R. 685; 147 A. 110.
Thus it appears to us that the case at bar on the question of proof and causation can more appropriately be aligned with Griffin v. James Butler Grocery Co., 108 N.J.L. 92; 156 A. 636, in which plaintiff and other members of the family, after eating a meal including canned peaches sold by defendant, became violently ill. It appeared that all ate the peaches with the exception of a son who was the only one not affected. The ...