Decided: September 22, 1939.
CATHERINE PISCATORE AND CARMINE PISCATORE, PLAINTIFFS-RESPONDENTS,
V. LA ROSA & SONS, INC., A CORPORATION, DEFENDANT-APPELLANT
On appeal from the Supreme Court, whose opinion is reported in 121 N.J.L. 288.
For the plaintiffs-respondents, Jacob E. Max.
For the defendant-appellant, John L. Ridley.
[123 NJL Page 364]
The judgment is affirmed, for the reasons stated by Mr. Justice Parker in the Supreme Court. We add, however, what the opinion writer doubtless had in mind, that the absence from the stipulated facts of proof tending to show that Mrs. Piscatore had eaten or drunk anything else that might have made her ill in nowise lifted from the plaintiffs the burden of proving affirmatively that the defendant's foodstuff was unwholesome and deleterious and that Mrs. Piscatore's illness resulted therefrom. It was not incumbent upon defendant to prove that the illness was due to other causes; nor would it
[123 NJL Page 365]
have been sufficient for the plaintiffs to show that the ailment might have resulted from the eating of the macaroni. Nevertheless, we think that the proofs support the factual finding in plaintiff's favor.
For affirmance -- THE CHANCELLOR, CASE, BODINE, DONGES, HEHER, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 11.
For reversal -- THE CHIEF JUSTICE, HAGUE, JJ. 2.