DRYDEN v. CONTINENTAL BAKING CO (1937)

The judgment rendered in favor of plaintiff in this action for damages for personal injuries suffered by her from eating bread baked by defendant, which contained numerous small broken particles of glass, is affirmed.

In December, 1933, the husband of plaintiff purchased from their neighborhood grocer a loaf of wrapped, sliced rye bread, for the consumption of himself and his family including his wife, plaintiff herein, his son, and the mother of plaintiff. The bread was served at the evening meal, but finding what was considered grit in the bread, it was put aside. In the morning it was served as toast, but it was again discovered to contain some gritty substance, and upon examination small particles of glass were found in some of the slices. Upon being submitted to a chemist, numerous pieces of glass were found in the bread, the toast, and in a portion of masticated bread.

It is the contention of plaintiff that she ate some of the bread, and as a result thereof suffered “nervous shock, mental suffering and agony, inflammation of the stomach and intestines and sharp cutting pains in the region of the stomach and intestines.”

From a judgment in her favor, the baking company has appealed, claiming that the evidence is insufficient to support the material findings.

It is first contended inasmuch as glass was not found in every slice of the bread, there is no evidence to support the finding that plaintiff actually ate any of the bread which contained glass. Plaintiff testified she ate at least one slice of bread at the evening meal, and the next morning at breakfast she ate two or three slices of the toasted bread. She noticed the presence of some gritty foreign substance in the bread which she masticated and swallowed, but did not know what it was until her husband, after attempting to eat a slice of the toasted bread, detected foreign substance and spat it out and discovered the grittiness was caused by particles of glass. From these facts, it can be reasonably concluded plaintiff actually swallowed particles of the glass.

The finding that plaintiff suffered bodily injury from swallowing the glass, is next attacked as not supported by the evidence. However, plaintiff testified that in a day or two after partaking of the bread she suffered “pains of indigestion.” Prior to that time she had not been so afflicted, but thereafter for several months she suffered pains and disturbances. She was employed as an office nurse or assistant and was compelled, because of such pains, to remain home from work many days. At times she was unable to eat and was greatly worried, and testified that the effect of having swallowed particles of glass finally resulted in chronic indigestion lasting from December to June or July. Dr. Jones, a physician and surgeon, was called on the day plaintiff ate the bread and found her exceedingly nervous, and thereafter during the times that Dr. Jones was acting as her physican, which extended at least up to the time of the trial, he testified she complained of indigestion, and her mental and nervous condition became gradually worse. She was unable to eat and lost weight, her resistance was lowered, and on several occasions she became quite sick, and in time developed a definite neurasthenic condition.

The husband of plaintiff testified she complained of acute pains in her stomach a few days after partaking of the bread which continued intermittently for several months, and that she was unable to continue regularly with her office work. This condition continued to exist until, due to other causes, an abdominal operation was necessary and was performed by Dr. Jones who, after an examination of the wall and lining of the stomach and intestines, assured plaintiff that there was no evidence of irritation of those parts caused by the particles of glass. From that time on her health began to improve.

Dr. Turner, a physician having offices adjoining the dental office in which plaintiff was employed, testified that she was frequently required to lie down during office hours and often complained of being unable to eat and of suffering pain in the region of the stomach.

Upon this testimony the trial court found that plaintiff partook of the bread and that the glass therein was taken into her stomach and intestines and caused plaintiff to become violently ill and to suffer intense pain, necessitating immediate treatment, and inflicted upon plaintiff nervous shock, mental suffering and agony, inflammation of stomach and intestines, sharp cutting pains in the region of the stomach and intestines. Such finding is amply supported.

In addition to the actual physical pain and suffering testified to by plaintiff, she also suffered from fright and nervous shock, and the rule is well settled that where the cause of the injury is tortious, it is immaterial whether such injury is direct as by a blow, or indirect through some action upon the mind. In Lindley v. Knowlton, 179 Cal. 298, 176 P. 440, plaintiff sued for damages for personal injuries because of fright occasioned by the appearance in plaintiff's house of a chimpanzee. The complaint alleged that the chimpanzee attacked the children of plaintiff, and as a consequence thereof plaintiff “was greatly frightened, shocked, and made sick in body and mind; * * * her nervous system was disordered; she was rendered hysterical and caused to suffer pain and mental anguish.” No claim was made that plaintiff suffered bodily injury by contact with the chimpanzee.

Defendant, as appellant, contended the trial court erred in refusing to give an instruction that no recovery could be had unless the fright of plaintiff was accomplished by some personal and bodily injury, and that the injury must be physiological. The jury were instructed, however, that plaintiff could not recover unless she received injuries which were the natural consequences of fright, caused as alleged in the complaint; that such occurrence as recited in the complaint had taken place and was the proximate cause of the injuries. The court quoted with approval from Sloane v. Southern Cal. Ry. Co., 111 Cal. 668, 44 P. 320, 322, 32 L.R.A. 193, to the effect: “Whatever may be the influence by which the nervous system is affected, its action under that influence is entirely distinct from the mental process which is set in motion by the brain. The nerves and nerve centers of the body are a part of the physical system, and are not only susceptible of lesion from external causes, but are also liable to be weakened and destroyed from causes primarily acting upon the mind. If these nerves, or the entire nervous system, is thus affected, there is a physical injury thereby produced; and, if the primal cause of this injury is tortious, it is immaterial whether it is direct, as by a blow, or indirect, through some action upon the mind.” The principle thus expressed is also approved in Huntly v. Zurich, etc., Co., 100 Cal.App. 201, 280 P. 163.

In Kenney v. Wong Len, 81 N.H. 427, 128 A. 343, 347, plaintiff, a patron of defendant's restaurant, ate some dressing from a roasted chicken in which she discovered a dead mouse. This discovery made her sick, and a nervous shock resulted. It was there contended, as here, that no recovery could be had for the result of fright caused by negligence where there was no immediate physical injury.

The court there held: “Immediate physical injury as the result of negligence being shown, whether or not induced by some form of fright, there may be recovery for subsequent mental or nervous trouble with its attendant bodily effects, whether or not produced by fright in a narrow sense, or in a broad one to include emotions of disgust and shame, if negligence is proved as its case.”

In Easton v. United Trade School Con. Co., 173 Cal. 199, 159 P. 597, L.R.A. 1917A, 394, plaintiff was driving a horse attached to a buggy when an agent of defendant drove an automobile against the buggy. Damages were awarded plaintiff, and one of the contentions of appellant upon appeal was that plaintiff had received no injuries as such; that she suffered only from fright; and that fright alone, without personal injury, cannot be made the foundation for an action for damages. Answering that contention, the court, through Mr. Justice Henshaw, found that she sustained a direct personal shock by the blow of the automobile, and that the fright was but a natural and direct consequence of defendant's trespass. Undoubtedly, as is there said, an act of negligence neither willful nor malicious causing mere fright unaccompanied by contemporaneous physical injury is not actionable, but when fright accompanies or follows a wrongful physical injury it is an element of damage. Under such circumstances, fright is but one form of mental anguish, and mental anguish as a direct reasonable outcome of the illegal physical injuries is always an element of damage. Although mental suffering alone will not support an action for damages, yet mental suffering is an element of damage in aggravation thereof, when it naturally ensues from the act complained of. Thomas v. Gates, 126 Cal. 1, 7, 58 P. 315.

In the case of Johnson v. Sampson, 167 Minn. 203, 208 N.W. 814, 816, 46 A.L.R. 772, the court had under consideration an action in which false charges of unchastity had been made, resulting in alleged mental and bodily injuries. In discussing the case the court said:

“On the whole we see no good reason why a wrongful invasion of a legal right, causing an injury to the body or mind which reputable physicians recognize and can trace with reasonable certainty to the act as its true cause, should not give rise to a right of action against the wrongdoer, although there was no visible hurt at the time of the act complained of.”

In Morton v. Western Union Tel. Co., 130 N.C. 299, 41 S.E. 484, 485, the court was considering what was meant by “other injury to the person,” and held that any mental injury was an injury to the person.

In the case of Goetten v. Owl Drug Co., 6 Cal.(2d) 683, 59 P.(2d) 142, the point was there made as here, that there was no evidence that the plaintiff swallowed any of the glass or that she suffered any physical injury therefrom. From the statement of facts given by appellant, it appears plaintiff “found in her mouth a small piece of glass while eating chow mein at a lunch counter of defendant.” There was no evidence that she swallowed any glass. She became greatly alarmed, so much so that in time she became a nervous wreck. The evidence further shows without question that the only physical injury suffered was a slight cut in her mouth which healed almost at once, and on account of which she suffered no injury or damage except as above stated. X–rays were taken but no signs of glass were discovered, although the particular type of glass taken from the mouth by plaintiff would show up under such an examination if present. We have examined the record in this case, and it does not appear that plaintiff suffered any injury to the gastro–intestinal tract, but the testimony of her doctor, however, was that she became extremely emotional and that there was danger of development of a decided mental condition.

In Johnson v. Pearson, 100 Cal.App. 503, 280 P. 394, 396, the court said: “Furthermore, nervousness, when a reasonable outcome of physical injuries, is always an element of damage, and obviously evidence relating thereto may properly be submitted to the jury,” and cited several cases in support thereof.

While it may be true that examinations of plaintiff fail to reveal any mechanical injuries to the digestive tract by reason of the particles of glass, she testified to severe physical pains, and there is no doubt that plaintiff suffered a very distinct physical shock brought about directly by the taking of the glass into her mouth.

The next contention of appellant is that the trial court erred in finding that the defendant breached the terms of an implied warranty to plaintiff as to the character or quality of the bread sold. The Uniform Sales Act, section 1735 of the Civil Code provides as follows:

“(1) 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.”

There can be no doubt the purchase of the bread from the defendant constituted a sale within the meaning of the foregoing act, especially when plaintiff either specifically or by implication made known to the seller the particular purpose for which it was required.

In Gindraux v. Maurice Mercantile Co., 4 Cal.(2d) 206, 47 P.(2d) 708, plaintiff had purchased some salami in a sealed package from the producer, who, in the ordinary course of trade, sliced off the end of the original package of salami and sold it to plaintiffs for home consumption. Plaintiffs brought the action for damages suffered as the result of eating the salami, which proof showed was infected with trichinae. The court there said:

“The defendant therefore knew by implication the particular purpose for which the salami was required. From that fact there arose an implied warranty that the commodity was reasonably fit for such purpose.”

This rule is expressly approved in Mix v. Ingersoll Candy Co., 6 Cal.(2d) 674, 59 P.(2d) 144; Temple v. Keeler, 238 N.Y. 344, 144 N.E. 635, 35 A.L.R. 920; Ryan v. Progressive Grocery Stores, 255 N.Y. 388, 175 N.E. 105, 74 A.L.R. 339; Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N.E. 481, 15 L.R.A.(N.S.) 884, 126 Am.St.Rep. 436, 15 Ann.Cas. 1076.

Many other cases supporting the rule that a manufacturer who sells an article of his own making impliedly warrants that it is free from latent defects arising from the process of manufacture or the use of defective materials, is gathered in a note in vol. 3, Am.St.Rep., p. 705 et seq. Also in 24 Ruling Case Law, p. 195 et seq. will be found citations to many selected cases supporting the foregoing rule.

That the court was correct in finding defendant guilty of negligence is established by such cases as Linker v. Quaker Oats Co. (D.C.) 11 F.Supp. 794, and the many cases there collected and referred to.

The contention that plaintiff was guilty of contributory negligence is settled contrary to the claim of appellant in Ternay v. Ward Baking Co. (Sup.) 167 N.Y. S. 562, which holds it is a question for the jury whether an ordinarily prudent person is required to examine a piece of bread to discover the possible presence of foreign or deleterious substances before eating it.

For the foregoing reasons, and as hereinbefore indicated, the judgment should be affirmed and it is so ordered.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: HELD, Justice pro tem; PLUMMER, J.