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Simon v. Graham Bakery

Decided: February 28, 1955.


On certified appeal from the Appellate Division of the Superior Court whose opinion is reported at 31 N.J. Super. 117.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Vanderbilt, C.J.


[17 NJ Page 527] The plaintiff purchased a loaf of bread at the defendant's bakery and retail store. She took the bread home, wrapped it up, and four days later cut it for the first time. When she bit into the first slice she felt a sharp pain in her mouth, and upon removing the bread from her mouth discovered a piece of glass embedded in it. She brought suit against the defendant for medical expenses and pain and suffering in connection with her injury. Prior to trial the plaintiff's attorney advised the court and the defense counsel that he was proceeding solely on the theory of breach

of implied warranty, and abandoned any claim based on the defendant's negligence.

On the defendant's case Mr. Hoffnung, the president of the defendant corporation which owned and operated the bakery and retail store, testified. Counsel requested the witness to describe the procedure used in the making of this bread, to which objection was made by the plaintiff's counsel on the ground that the action was based on breach of implied warranty, that negligence was not an issue, and that consequently this testimony was irrelevant. The trial court sustained the objection, refusing to admit this testimony as well as similar testimony of three other witnesses called by the defendant. The jury returned a verdict of $325 in favor of the plaintiff, which was affirmed by the Appellate Division of the Superior Court, 31 N.J. Super. 117, and we granted the defendant's petition for certification to review that judgment. 16 N.J. 196.

The defendant contends that the trial judge erred in excluding the proffered testimony of Mr. Hoffnung and the other three witnesses as to the manner in which the bread was prepared, claiming that an action based on implied warranty is fundamentally a tort action, that R.S. 46:30-21(1) in imposing this liability upon the seller merely supplies a prima facie case of lack of reasonable care, and that the defendant is entitled to controvert the prima facie case. R.S. 46:30-21(1), which is section 15 of the Uniform Sales Act, is admittedly applicable to the situation here:

"Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose."

This section merely declares and codifies the common law, Nisky v. Childs Co., 103 N.J.L. 464, 466 (E. & A. 1927), Green Mountain Mushroom Co. v. Brown, 117 Vt. 509, 95 A. 2 d 679, 682 (Sup. Ct. 1953). Although historically the liability was based on tort and the action was on the case,

Maryland Casualty Co. v. Independent Metal Products Co., 99 F. Supp. 862, 867 (D.C. Nebr. 1951), affirmed 203 F.2d 838 (8 th Cir. 1953); Ames, History of Assumpsit, 2 Harv. L. Rev. 1, 8 (1888), 1 Williston, on Sales (1948 ed.), 501 et seq., it is now generally held that the warranty which is implied as a matter of social justice, arises out of contract, Tomlinson v. Armour & Co., 75 N.J.L. 748, 754 (E. & A. 1908); Cornelius v. B. Filippone & Co., Inc., 119 N.J.L. 540, 541 (Sup. Ct. 1938); Duncan v. Juman, 25 N.J. Super. 330, 333 (App. Div. 1953); Blessington v. McCrory Stores Corp., 305 N.Y. 140, 111 N.E. 2 d 421, 423, 37 A.L.R. 2 d 698 (Ct. App. 1953); 37 A.L.R. 2 d 703, 1 Williston, supra, 464, 506, 617. This view has caused some difficulty where the cause of action has been for personal injuries as distinguished from ordinary damages arising from breach of contract, particularly with regard to the applicable statute of limitations, Annotation, 37 A.L.R. 2 d 703. We are not, however, faced with that problem here.

The plaintiff's action here is based on the implied warranty set forth in R.S. 46:30-21(1), supra, and it does not depend upon proof of the negligence of the defendant. Clearly the testimony, if offered for the sole purpose of proving due care in the preparation of the bread, would be irrelevant. The defendant is liable for a breach of the implied warranty imposed under this statute "notwithstanding he used all care to prevent a breach," Tomlinson v. Armour & Co., supra, 75 N.J.L. 748, 754; see Caskie v. Coca-Cola Bottling Co., Inc., 373 Pa. 614, 96 A. 2 d 901, 903 (Sup. Ct. 1953); Green Mountain Mushroom Co. v. Brown, supra, 117 Vt. 509, 95 A. 2 d 679, 681; Tremeroli v. Austin Trailer Equipment Co., 102 Cal. App. 2 d 464, 227 P. 2 d 923, 930 (D. Ct. App. 1951).

It is quite apparent, however, that the proffered testimony was admissible for another purpose, i.e., to refute the inference that the jury might otherwise draw that the piece of glass was in the bread when it was purchased. In order to ...

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