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Simon v. Graham Bakery

Decided: June 9, 1954.

RUTH SIMON, PLAINTIFF-RESPONDENT,
v.
GRAHAM BAKERY, DEFENDANT-APPELLANT



Clapp, Smalley and Schettino. The opinion of the court was delivered by Smalley, J.s.c. (temporarily assigned).

Smalley

Plaintiff brought her action in the Passaic County District Court before a jury for injuries allegedly sustained when she bit into a piece of bread made by the defendant and purchased from it. There was a verdict of $325 for the plaintiff and defendant appeals.

No court reporter being present, a statement settled and approved by the trial judge supplied the facts upon which this court bases its review. At the time of the trial counsel announced that he was relying solely upon the breach of implied warranty and any theory of negligence was abandoned.

It appears that on May 11, 1952 plaintiff went to a bakery store operated by the defendant and purchased a loaf of bread and paid the price therefor of 20 cents. After the purchase she took the bread home, wrapped it up and cut it for the

first time four days later. She bit into the first slice and felt a sharp pain in her mouth and a salty taste. Removing the bread from her mouth, she found a piece of glass embedded in the bread. There was testimony that she required certain medical attention by reason of the cuts to her mouth and tongue.

Defendant's main contention is that when it attempted to produce witnesses to describe the method of procedure used in the preparation and manufacture of its bread, the trial court sustained the objection of plaintiff on the theory that the action was based on a breach of implied warranty, that the bread was sold by the defendant as fit for human consumption, and that the action was not based on negligence, and consequently such testimony as to the method or care used by the defendant in its preparation of making the bread was irrelevant.

Defendant's counsel made an offer of proof that there were three other employees of the defendant in court, who were prepared to testify as to the method used by the defendant bakery in the preparation and manufacture of its product. Such proffered testimony, on objection, was excluded.

We agree with plaintiff and we think the defendant is in accord that here is an instance of an implied warranty that the bread would be fit for consumption, N.J.S.A. 46:30-21 (1), and that a piece of glass in a loaf or piece of the bread constitutes a breach of that implied warranty. See Duncan v. Juman , 25 N.J. Super. 330 (App. Div. 1953). But the defendant contends that where, as here, a plaintiff buys a loaf of bread, takes it home, keeps it four days, then cuts it and bites into a slice, and alleges that she finds a piece of glass and sustained injuries, that the defendant should be permitted to show by competent testimony how it makes and prepares its product so a jury can determine after a hearing of all of the testimony, if, in fact, the plaintiff has carried the burden of establishing liability upon the part of the defendant.

It may be that the fact that the defendant is both manufacturer and retailer of the product presents an even more

troublesome problem than is usually encountered in such instances, but that is of little comfort to the defendant.

It is admitted that if the suit were brought on the theory of negligence, that then such testimony as the defendant ...


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