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District Court of Appeal, First District, Division 1, California.

KLEIN et ux. v. DUCHESS SANDWICH CO., Limited, et al.*

Civ. 10703

Decided: January 30, 1939

Elliott Johnson and D.W. Brobst, both of Oakland, for appellants. O'Connor, Fitzgerald & Moran, of San Francisco (Harold H. Cohn, of San Francisco, of counsel), for respondents.

Action instituted by plaintiffs to recover damages for personal injury resulting to the wife as the result of eating a portion of a sandwich containing worms, described by her as maggots. The sandwich was served to her by the respondent Frank Kilpatrick in a sealed package, it having been prepared and sealed in wax paper by respondent Duchess Sandwich Company, Ltd., a corporation. The complaint was based upon two theories: one upon an implied warranty upon the part of the cafe keeper and the manufacturer as to the condition of the sandwich; the other upon the rule of negligence. At the conclusion of the evidence the trial court granted respondents' motion for a directed verdict. The issues involved are, does the doctrine of implied warranty of fitness of an article for the purpose for which it was intended extend beyond the immediate purchaser of such article, and whether or not the evidence discloses any negligence. We are of the opinion that both questions should have been submitted to the jury, and that the court erred in granting the motion.

It appeared in evidence that respondent Frank Kilpatrick operated a small restaurant in the city of Oakland known as the Happy Daze Buffet. On July 21, 1936, appellant Mrs. Klein went to the restaurant to obtain something to eat. She was driven to the front door in an automobile operated by her husband, who informed Kilpatrick that he wanted a sandwich for his wife. The sandwich was placed on a tray and was delivered to the wife. It was wrapped in wax paper and sealed by two metal clamps which were placed there by respondent sandwich company prior to its sale to Kilpatrick. The wife opened the sealed package by breaking the original seals and then took a bite and swallowed it. It had a peculiar taste so she investigated and discovered the sandwich to be covered with crawling worms, which she described as maggots. She then showed the sandwich to Kilpatrick. She became ill and vomited. She then proceeded to the Duchess Sandwich plant. Thereafter she returned to her home, where she again vomited. After four days in bed, she was ordered to a sanitarium by her physician. She remained ill for a period of approximately six months. It further appeared in evidence that the sandwich purchased had been delivered about an hour previously to respondent Kilpatrick by the Duchess Sandwich Company. Each day the sandwiches, except those containing cheese, were replaced with fresh ones by the company. There was evidence to show that maggots can develop in two days. Under these circumstances we think there was sufficient evidence from which the jury could reasonably have found that the sandwich had been negligently prepared with deleterious ingredients; the method of distribution offered another premise from which the jury could have inferred that the sandwich company had been negligent; the unsold sandwiches were supposed to be replaced with fresh ones each day, and the jury could reasonably have found that the delivery man had been negligent in making the exchange. Gindraux v. Maurice Mercantile Co., 4 Cal.2d 206, 47 P.2d 708; Cassini v. Curtis Candy Company, 113 N.J.L. 91, 172 A. 519.

Respondents concede that a manufacturer of footstuffs may be held liable to the ultimate consumer thereof for damages arising out of the negligent manufacture or preparation of the same, whether the consumer be the immediate purchaser or not, their sole contention being that there is no evidence of negligence. As we have pointed out, maggots were present, and the mode and manner of delivery of the sandwiches was such that the jury might have inferred that unwholesome materials could have caused plaintiff's illness. Nor do we think respondents' contention, that only the immediate purchaser may rely upon the breach of an implied warranty, has any merit. Section 1735 of the Civil Code provides that where a 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 upon 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 question is not one of first impression in this state. Here clearly the husband was the agent of the wife in making the purchase. Moreover, it is the well settled rule that one not a party to an implied warranty in the sale of foodstuffs may recover in tort in the event negligence be shown. Dryden v. Continental Baking Co., 11 Cal.2d 33, 77 P.2d 833.

The judgment is reversed.

TYLER, Presiding Justice.

We concur: WARD, J.; KNIGHT, J.

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