On appeal from a judgment of the Passaic District Court.
For the appellant, Edwards, Smith & Dawson.
For the respondent, Samuel Hilfman.
Before Justices Case, Lloyd and Donges.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment of the Passaic District Court in favor of the plaintiff. The District Court judge filed an opinion which is printed at 12 N.J. Mis. R. 549. There had been a previous trial at which a jury found a verdict for the plaintiff. This verdict was set aside on rule to show cause and at the retrial the case was submitted to Judge Peretti on an agreed state of facts.
The stipulated facts appear to be that on May 5th, 1933, plaintiff purchased a can of peas at his son's store. This can bore a label of "Francis H. Leggett & Co.," after which appeared the words "Distributors, New York, U.S.A." There also was the registered trade name "Premier -- The Guarantee of Quality" on the can. While eating the peas plaintiff bit on a piece of stone and broke or damaged some teeth and a dental plate.
The peas were not packed by the defendant, but by the California Packing Corporation of San Francisco, from which company they were purchased by defendant and distributed under its own label. The word "Premier" is the registered trade name of the defendant.
The question is whether the defendant can be held liable in negligence for the injuries to the plaintiff.
There seems to be no case in point in this state. There are cases, such as Griffin v. James Butler Grocery Co., 108 N.J.L. 92, where a retailer has been held under an implied warranty of fitness for canned goods packed by another; and cases such as Sheehan v. Heinz Co., 8 N.J. Mis. R. 867, where a packer has been held liable in negligence for foreign substance found in packed goods. But here we have a so-called "distributor" who buys the product of a canner and puts it out under its own trade name and over the corporate name, with the word "distributor" appended thereto.
There are two cases in other jurisdictions which deal with similar situations. The first is Thornhill v. Carpenter-Morton Co. (Mass.), 108 N.E. Rep. 474. In that case the defendant marketed a floor stain under its own name which had been manufactured by another. A can exploded while being used
and there was proof of negligence in its manufacture. Of course, an element in the decision in this case was the fact that the stain was considered to be an ...