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Lipari v. National Grocery Co.

Decided: April 9, 1938.

MARY LIPARI AND JOSEPH LIPARI, PLAINTIFFS-RESPONDENTS,
v.
NATIONAL GROCERY COMPANY, DEFENDANT-APPELLANT; ANTHONY LIPARI AND JOSEPH LIPARI, JR., INFANTS BY THEIR NEXT FRIENDS, MARY AND JOSEPH LIPARI AND MARY AND JOSEPH LIPARI, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, V. NATIONAL GROCERY COMPANY, DEFENDANT-APPELLANT; SARA LIPARI, INFANT BY HER NEXT FRIENDS, MARY AND JOSEPH LIPARI, AND MARY AND JOSEPH LIPARI, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, V. NATIONAL GROCERY COMPANY, DEFENDANT-APPELLANT



For the plaintiffs-respondents, Chazin & Chazin (Theodore S. Chazin).

For the defendant-appellant, Edwards, Smith & Dawson (Forrest S. Smith).

Before Justices Case and Donges.

Case

The opinion of the court was delivered by

CASE, J. The appeals are from judgments in three suits tried together in the District Court of the Second Judicial District of the county of Hudson. Mary Lipari and Joseph Lipari are the parents of the minors, Anthony, Joseph, Jr., and Sara. The suits arise out of damages alleged to have ensued from the eating of tuna fish purchased in a sealed can from one of the defendant's stores. The complaint in the first suit contains two counts, one by Mary, the mother, for her personal injuries, and the other by Joseph for incidental damages as the husband of Mary. The complaint in the second suit contains four counts, the first on behalf of the infant, Anthony, the third on behalf of the infant, Joseph, Jr., and the second and fourth by the parents for incidental damages arising out of the children's claims. The complaint in the third suit has three counts, the first on behalf of the infant, Sara, the second count incidental thereto by Joseph and Mary as her parents, and the third by the father, Joseph, in his own right.

Mary Lipari purchased, by her son Anthony as agent, from the defendant, a retail grocer, a tin of tuna fish canned by the West Coast Packing Corporation and bearing the printed label "Far Famed Brand, fancy light meat tuna fish, weight 13 ounces net, canned in cotton seed oil, packed by the West Coast Packing Corporation, division of Italian Food Products Company, Inc., Long Beach, California, U.S.A." The canner, West Coast Packing Corporation, had an excellent reputation in the trade. The product was bought by the defendant through a New York broker. The goods were received in quantity, by steamer delivery, in New York City.

On delivery the goods were subjected to the defendant's usual practice which was to select, at random, a number of individual cans, test the contents for quality, and accept the shipment if the sampled goods be found up to specification, otherwise reject. No further tests were made. Defendant had other brands of canned tuna fish on its shelves for sale at the time of the sale in the instant case. Anthony Lipari, in purchasing the can in question, bought it knowing that it was the same kind that his mother always bought, that that was what he wanted and what his mother told him to get. He told the salesman that he wanted the same kind his people always got. He would have accepted no other. Mrs. Lipari opened the can, and although she found the contents dry and brittle, used the same along with other foods for the evening meal. All who ate of the fish later suffered from food poisoning. We consider that the proofs were sufficient, under Griffin v. James Butler Grocery Co., 108 N.J.L. 92, to raise a jury question as to whether the sickness of the several plaintiffs was caused by the fish.

The verdict was "$150 for Mary and Joseph Lipari, $100 for the children Anthony and Joseph, and $50 for Sarah Lipari." Appellant contends that the trial court erred in three general respects; in refusing to nonsuit and to direct a verdict; in charging as the court did and in refusing to charge as requested; and in entering judgment upon a fatally defective verdict.

Except as to the award of $50 to the infant Sara, the verdict was clearly defective in that there was no basis upon which the sum assessed could be appropriated to one or another of the claimants. The judgment was erroneously entered thereon. Spencer v. Haines, 73 N.J.L. 325; O'Carroll v. Stark, 85 Id. 438; Warner v. Public Service Coordinated Transport, 9 N.J. Mis. R. 328. Respondents concede that this is so but ask that the reversal be as to amount of damages only. We do not accede to that request. Retention by an appellate court of so much of the judgment as finds liability and reversal as to the amount of damage only is a discretionary power that should be used cautiously.

Padayao v. Severance, 116 N.J.L. 385; Juliano v. Abeles, 114 Id. 510. On this branch of the appeal we reach a reversal of all judgments except that of Sara.

We find no error in the charge or in the refusal to charge. However, the request to direct a verdict in favor of defendant as against all plaintiffs ...


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