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MILLER ET UX. v. MEADVILLE FOOD SERVICE (07/14/53)

July 14, 1953

MILLER ET UX.
v.
MEADVILLE FOOD SERVICE, INC. ET AL.



COUNSEL

J. Perry Eckels, Meadville, for appellants.

F. Joseph Thomas, Meadville, for Meadville Food Service, Inc.

P. Richard Thomas, Paul E. Thomas and Thomas & Thomas, Meadville, for Fairmont Foods Co., additional defendant.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Wright, JJ.

Author: Ross

[ 173 Pa. Super. Page 358]

ROSS, Judge.

Plaintiffs, husband and wife, brought this action of trespass against Meadville Food Service, Inc., for injuries sustained by the wife-plaintiff when she bit into a foreign substance contained in a piece of pineapple pie which she purchased in defendant's cafeteria. Defendant filed an appearance but no answer to the complaint, and brought on the record as additional defendant

[ 173 Pa. Super. Page 359]

Fairmont Foods Company, from which corporation it had purchased the pineapple used in preparation of the pie filling. The jury returned a verdict for the plaintiffs for $2,000 'to be divided between the two defendants in equal amounts of one thousand dollars each ($1000)'. The court below entered judgment n. o. v. in favor of the defendants and, pro forma, refused their motion for a new trial, and from the entry of judgment n. o. v. the plaintiffs have taken this appeal.

Florence Miller, hereinafter referred to as plaintiff, was employed by Talon, Inc., at its plant in Meadville. Defendant operated a cafeteria patronized by Talon employes. On September 1, 1948, during her lunch recess plaintiff, in company with other women employes, went to defendant's cafeteria and purchased the piece of pie in question. As she was eating her second or third morsel of it she bit into a hard particle which 'broke in two between my teeth'. She explained that she could not identify the 'object' because 'After I bit into it, it broke. In my excitement I tried to cough it up, it slipped down my throat, I held it there some time at the base of my mouth, and I started strangling and coughing and whatever food I had in my mouth I swallowed it'. The evidence as to whether the plaintiff actually suffered an injury was conflicting. The verdict of the jury, however, resolves that conflict in her favor.

The original defendant submitted evidence to the effect that it purchased the pineapple for its pies from the additional defendant in sealed 'four pound frozen cartons'. The fruit was taken from the cartons, placed in a stainless steel container to thaw and then placed in pies by the original defendant's baker. There was evidence that Meadville Food Service employed modern and sanitary methods in the preparation of its pies. The additional defendant offered no testimony.

[ 173 Pa. Super. Page 360]

In its opinion, the learned court below granted judgment n. o. v. because the plaintiff had not identified the foreign substance in the pie, and, therefore, had not shown negligence on the part of the defendants. Consequently, the crux of this case is the question of necessity for identification of the foreign substance. Defendants contend, and the court below found, that plaintiff failed to prove negligence because she neither knew what the substance was which caused her injury nor showed how it got into the pie. We think the recent decision in Loch v. Confair, 372 Pa. 212, 93 A.2d 451, governs this case and resolves the issue in plaintiff's favor. We might add ...


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