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Attorney(S)

C. Gerstein, for the defendants. J.T. Connolly, for the plaintiff.

Judges

DeCOURCY, J.

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Smart Summary

Case Summary: SAME TONSMAN v. BARNET GREENGLASS et al. — Supreme Judicial Court of Massachusetts (Feb. 29, 1924)

Factual and Procedural Background

This action is a tort suit brought against Barnet Greenglass and Jacob Greenglass, copartners doing business as B. Greenglass and Son, for personal injuries sustained when the plaintiff bit on a piece of metal embedded in a loaf of bread manufactured by the defendants. The writ was dated February 3, 1919. The case was tried in the Superior Court before Judge Cox.

At trial there was evidence tending to show the foreign object was a thin piece of iron about one-half inch square, located in the center of the loaf, "covered with green stuff," and that the bread "smelled something terrible." The defendants described their processes and machinery but offered no explanation for the presence of the metal in the loaf.

At the close of evidence the defendants requested several rulings (numbered in the record as 1, 2, 3, 6, 7 and 8) asserting, among other things, that the plaintiff was not entitled to recover, that there was no evidence the device or method used was not reasonably adapted to safe manufacture, and that the mere presence of a foreign substance without affirmative evidence of negligence was insufficient to warrant a finding of negligence. The trial court refused the requested rulings, charged the jury (including language about reasonable inferences and the question whether the piece of metal would not have gotten into the bread except by want of due care), and submitted negligence to the jury without invoking the doctrine of res ipsa loquitur.

The jury returned a verdict for the plaintiff in the amount of $225. The defendants excepted to portions of the charge (including the court's instructions regarding permissible inferences and the doctrine of res ipsa loquitur) and to the denial of their requested rulings. DeCourcy, J., delivered the opinion of the court.

Legal Issues Presented

Whether, on the evidence adduced at trial, the question of the defendants' negligence should have been submitted to the jury (i.e., whether the plaintiff sustained the burden of proof such that a verdict could properly be returned for the plaintiff).
Whether the trial judge's instruction—permitting the jury to use their experience to draw reasonable inferences that the metal would not have gotten into the bread except through the defendants' lack of due care—was proper (including whether the judge erred by failing to apply the doctrine of res ipsa loquitur).
Whether, as a matter of law, there was no evidence that (a) the device used by the defendants or (b) the method adopted in preparing the bread was not reasonably adapted to safe, careful, and proper preparation of the bread.
Whether a request for instructions that highlighted isolated facts for emphasis should have been granted.

Arguments of the Parties

Defendants' Arguments

The defendants requested rulings that, on the whole of the evidence, the plaintiff was not entitled to recover.
They argued there was no evidence that the devices or methods used in preparing the bread were not reasonably adapted to safe, careful, and proper manufacture, and thus no basis for negligence.
They contended that the mere presence of a foreign substance in the bread, absent affirmative evidence of negligence, was insufficient to warrant a finding of negligence.
They excepted to the trial judge's charge permitting the jury to draw reasonable inferences (and invoked the doctrine of res ipsa loquitur in presenting their exception), asserting there was no evidence from which the jury could properly apply res ipsa loquitur and that the charge improperly allowed the jury to infer negligence from the isolated facts emphasized by the judge.

Plaintiff's Arguments

The opinion does not contain a detailed account of the plaintiff's legal arguments beyond the fact that the plaintiff sought recovery for injuries caused by biting into a piece of metal in bread manufactured by the defendants.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tompkins v. Quaker Oats Co., 239 Mass. 147	Statement of the general rule that a manufacturer of a defective article is not liable to an ultimate consumer who purchases through a middleman where there is no fraud or privity and the article is not inherently dangerous.	Quoted as authority for that long-established general rule; used to frame the background legal principle before noting an exception for food.
Windram Manuf. Co. v. Boston Blacking Co., 239 Mass. 123	Also cited in support of the general nonliability principle for manufacturers to remote consumers absent privity/fraud/inherent danger.	Coupled with Tompkins to state the general rule applicable to manufacturers.
17 A.L.R. 674 (note)	Secondary-source note collecting cases on the general rule (manufacturer nonliability).	Referenced as survey material corroborating the stated general rule.
Wilson v. J. G. B. S. Ferguson Co., 214 Mass. 265	Illustration of the exception recognizing manufacturer liability to third persons for negligence in preparation of food for human consumption.	Cited as a controlling Massachusetts precedent recognizing the exception; the court relied on it to treat food cases differently from the general manufacturer rule.
Newhall v. Ward Baking Co., 240 Mass. 434, 436	Another Massachusetts decision noting the exception for food manufacturers' liability.	Cited among authorities establishing the exception applicable to food.
Tomlinson v. Armour Co., 46 Vroom 748	Example of an out-of-state case recognizing liability of manufacturer to consumers for negligent preparation of food.	Listed as part of a body of authorities supporting the exception to the general nonliability rule.
Boyd v. Coca Cola Bottling Works, 132 Tenn. 23	Out-of-state example supporting manufacturer liability in food/beverage context.	Included in the court’s catalogue of cases recognizing the exception for food.
Ketterer v. Armour Co., 200 Fed. Rep. 322	Federal court example of the exception for food manufacturers.	Listed among analogous authorities.
Freeman v. Schults Bread Co., 163 N.Y. Supp. 396	Case addressing liability for foreign substance in food (bread).	Included as supporting authority for the principle that manufacturers can be liable for negligently prepared food.
Birmingham CheroCola Bottling Co. v. Clark, 205 Ala. 678	Another state case in the line recognizing the exception for food and beverages.	Listed among cases exemplifying the exception.
Drury v. Armour Co., 140 Ark. 371	State case supporting manufacturer liability in food contexts.	Included as part of the comparative authority cited by the court.
Watson v. Augusta Brewing Co., 124 Ga. 121	State authority on liability involving food/beverage contamination.	Listed among the authorities supporting the exception.
Salmon v. Libby, McNeill & Libby, 219 Ill. 421	State case in the line of decisions recognizing liability for contaminated food.	Included among examples of the exception to the general rule.
Davis v. Van Camp Packing Co., 189 Iowa 775	Case addressing manufacturer liability for food unfit for consumption.	Listed as supporting authority for the food exception.
Parks v. C. C. Yost Pie Co., 93 Kans. 334	State case supporting liability for defective food products.	Included in the court’s survey of authorities.
Goldman Freiman Bottling Co. v. Sindell, 140 Md. 488	Maryland case cited among authorities on contaminated food/beverage liability.	Listed as a supporting authority for the exception.
Craft v. Parker, Webb Co., 96 Mich. 245	Michigan case on liability for contaminated food articles.	Included among comparative authorities.
Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864	State case in the line allowing recovery for contaminated consumables.	Listed with other state decisions recognizing the exception.
Ward v. Morehead City Sea Food Co., 171 N.C. 33	Authority recognizing liability for food unfit for consumption.	Included as supporting precedent.
Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545	Another Tennessee decision addressing liability in beverage/food contamination.	Listed among the authorities.
Mazetti v. Armour Co., 75 Wn. 622	Washington case recognizing manufacturer liability for contaminated food.	Included in the catalogue of cases supporting the exception.
Bishop v. Weber, 139 Mass. 411	Massachusetts authority cited in connection with the subject matter (food/manufacture).	Referenced in the list of related Massachusetts cases.
17 A.L.R. 689 (note)	Secondary-source note collecting cases and commentary on the liability topic.	Referenced as additional survey material supporting the court's discussion of authorities.
Altavilla v. Old Colony Street Railway, 222 Mass. 322	Principle that a trial court may properly refuse a requested instruction which selects an isolated fact for emphasis and comment.	Applied by the court to justify denial of defendants' requests numbered 2, 3, 6 and 8, which the court characterized as selecting isolated facts for emphasis.

Court's Reasoning and Analysis

The court began by identifying the general rule: a manufacturer ordinarily is not liable to an ultimate consumer who purchases through a middleman where there is neither fraud nor privity and the defective article is not inherently dangerous (citing Tompkins v. Quaker Oats Co. and Windram Manuf. Co. v. Boston Blacking Co.). The opinion then recognized a broadly accepted exception to that general rule for manufacturers who prepare food for human consumption; courts impose liability where the food is unfit because of deleterious ingredients or the presence of foreign substances (citing Wilson v. J. G. B. S. Ferguson Co. and numerous other authorities).

Turning to the evidence in the case, the court recited the key facts that the jury could reasonably find: (1) the plaintiff purchased a loaf of bread bearing the defendants' trade mark; (2) on attempting to eat a slice she struck a thin piece of iron, about one-half inch in size, and two teeth were broken; (3) the metal was embedded in the center of the loaf, was "covered with green stuff," and the bread "smelled something terrible"; and (4) the defendants described their mixing process and machinery but offered no explanation for the foreign object's presence.

From these facts the court concluded the jury could reasonably infer that the metal entered the loaf during the manufacturing process (the location in the center/soft part of the loaf, the discoloration of the iron, and the odor suggested the metal was present while the dough was soft and during fermentation or other chemical change). The trial judge did not rely on res ipsa loquitur; instead he submitted negligence to the jury on the basis of the evidence and permissible inferences. The court found no error in the challenged portion of the charge when considered in context.

With respect to the defendants' requested rulings, the court held that requests numbered 1 and 7 (challenging the sufficiency of the evidence to sustain a finding of negligence) were properly denied, because the jury had evidence from which to infer negligence. The court also held that requests numbered 2, 3, 6 and 8 were improperly framed because they sought to isolate and emphasize particular facts; the court relied on Altavilla v. Old Colony Street Railway to explain that a request which selects an isolated fact for emphasis and comment may properly be refused when the subject matter is otherwise adequately and correctly covered by the charge.

Holding and Implications

EXCEPTIONS OVERRULED.

The trial court's refusals to grant the defendants' requested rulings and the challenged portion of the charge were sustained. The practical consequence is that the jury verdict for the plaintiff (for $225) was upheld by the Supreme Judicial Court; the court affirmed that, on the facts presented, negligence was a question properly for the jury and that it was permissible for the judge to instruct the jury to draw reasonable inferences from the circumstances without applying res ipsa loquitur. The opinion applies recognized Massachusetts authority distinguishing the general rule of manufacturer nonliability from the exception applicable to food manufacturers; it does not purport to establish a new legal principle beyond the application of that settled framework.

Counsel of record in the trial court: C. Gerstein for the defendants; J.T. Connolly for the plaintiff. The opinion was delivered by DeCOURCY, J., with Rugg, C.J., Crosby, Pierce and Wait, JJ., present at argument.

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SAME TONSMAN vs. BARNET GREENGLASS another.

Negligence, In manufacture of bread. Food. Practice, Civil, Request for instruction.

At the trial of an action for personal injuries received when the plaintiff bit upon a piece of metal imbedded in a loaf of bread which had been manufactured by the defendant and which the plaintiff had bought from a grocer, there was evidence tending to show that the metal was a thin piece of iron about one half inch square, that it was in the center of the loaf and was "covered with green stuff," and that the bread "smelled something terrible." The defendant's evidence described the process of mixing the ingredients and the machinery used, but offered no explanation as to the presence of the foreign substance in the loaf. The question of the negligence of the defendant was submitted to the jury without calling upon the doctrine of res ipsa loquitur. There was a verdict for the plaintiff. Held, that

(1) It was proper for the judge to charge the jury that the question was, "whether the facts as disclosed to you by this evidence are such as afford you just ground for a reasonable inference that, according to ordinary experience, this piece of metal, if it was in the bread, would not have gotten in there except for the want of due care of this defendant, or someone for whose conduct he was responsible, in the preparation of the bread;"

(2) It was proper to refuse to rule that the plaintiff had not sustained the burden of proving that the defendant was negligent;

(3) It was proper to refuse to rule that as a matter of law there was no evidence that the device used or that the method adopted by the defendant in the preparation of the bread was not reasonably adapted to the safe, careful and proper preparation of the bread.

At a trial it is proper to refuse a request for an instruction to the jury which selects an isolated fact for emphasis and comment.

DeCOURCY, J.

It is a long established general rule that the manufacturer of a defective article is not liable to an ultimate consumer, who has purchased from a middleman, for injuries resulting from negligence in its manufacture, where there is neither fraud nor privity of contract, and the defective article is not inherently dangerous. Tompkins v. Quaker Oats Co. 239 Mass. 147, and cases cited. Windram Manuf. Co. v. Boston Blacking Co. 239 Mass. 123. 17 A. L. R. 674 note, and cases collected.

The courts generally, although on various grounds, recognize as an exception to this rule the liability of the manufacturer to third persons for negligence in the preparation of food for human consumption: whether the unfitness of the food be due to deleterious ingredients, or to the presence of a foreign substance. Wilson v. J. G. B. S. Ferguson Co. 214 Mass. 265. Newhall v. Ward Baking Co. 240 Mass. 434, 436. Tomlinson v. Armour Co. 46 Vroom, 748. Boyd v. Coca Cola Bottling Works, 132 Tenn. 23. Ketterer v. Armour Co. 200 Fed. Rep. 322. Freeman v. Schults Bread Co. 163 N.Y. Supp. 396. Birmingham CheroCola Bottling Co. v. Clark, 205 Ala. 678. Drury v. Armour Co. 140 Ark. 371. Watson v. Augusta Brewing Co. 124 Ga. 121. Salmon v. Libby, McNeill Libby, 219 Ill. 421. Davis v. Van Camp Packing Co. 189 Iowa, 775. Parks v. C. C. Yost Pie Co. 93 Kans. 334. Goldman Freiman Bottling Co. v. Sindell, 140 Md. 488. Craft v. Parker, Webb Co. 96 Mich. 245. Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864. Ward v. Morehead City Sea Food Co. 171 N.C. 33. Crigger v. Coca-Cola Bottling Co. 132 Tenn. 545. Mazetti v. Armour Co. 75 Wn. 622. See also Bishop v. Weber, 139 Mass. 411. 17 A. L. R. 689 note.

There was testimony on which the jury could find these facts: The plaintiff, through her agent, bought from a neighboring grocer a loaf of bread which was manufactured by the defendants and had on it their trade mark label, "Greenglass Bread, the Best Bread Baked." When she attempted to eat a slice cut from the loaf her teeth came in contact with a thin piece of iron, about half an inch long and wide, and two of her teeth were broken; the piece of metal was in the centre of the loaf, and was "covered with green stuff," and the bread "smelled something terrible." The process of mixing the ingredients, and the machinery used, were described by one of the defendants, but no explanation was offered as to the presence of this foreign substance in the loaf. The jury reasonably could infer that it got into the bread during the process of manufacture, because it was imbedded in the centre or soft part, and the discoloration of the iron and the bad odor indicated that the metal was there while the dough was soft and during a period of fermentation or other chemical change. The trial judge did not apply the doctrine of res ipsa loquitur, but properly submitted the issue of negligence to the jury. We find no error in the portion of his charge that was excepted to, especially when it is considered in connection with the context. The first and seventh requests were rightly denied. Wilson v. J. G. B. S. Ferguson Co. supra. The defendants were not entitled to those numbered 2, 3, 6 and 8, which selected isolated facts for emphasis and comment; and the subject matter was adequately and correctly covered by the charge. Altavilla v. Old Colony Street Railway, 222 Mass. 322.

Exceptions overruled.

TONSMAN v. GREENGLASS