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WISNIEWSKI v. GREAT ATLANTIC AND PACIFIC TEA COMPANY (04/03/74)

decided: April 3, 1974.

WISNIEWSKI
v.
THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1969, No. 2955, in case of Angela Wisniewski v. The Great Atlantic and Pacific Tea Company.

COUNSEL

Robert C. Little, with him Burns, Manley & Little, for appellant.

Leo P. Hajdukiewicz, with him Samuel R. Sciullo, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Jacobs, J. Cercone, J., concurs in the result.

Author: Jacobs

[ 226 Pa. Super. Page 577]

This is an appeal from judgment against the defendant in a products liability case under Article 2 of the Uniform Commercial Code.*fn1 Both the denial of judgment n.o.v. by the lower court in banc and its refusal to grant a new trial are assigned as error by the defendant on this appeal. We affirm.

"In considering a motion for judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor." Isaac v. Continental Cas. Co., 442 Pa. 480, 482, 276 A.2d 299 (1971). Viewed according to these principles, the facts may be stated as follows:

On December 16, 1967, plaintiff Angela Wisniewski purchased several loaves of bread from one of defendant's food stores. The following day, she asked her 7-year-old

[ 226 Pa. Super. Page 578]

    daughter to prepare her a sandwich of chipped ham and mayonnaise on toast. The sandwich was made in the kitchen out of Mrs. Wisniewski's presence, and she consumed it without incident. She then granted the daughter permission to make a sandwich for herself.

Upon being called to the kitchen, Mrs. Wisniewski found the daughter coughing on something in her mouth and gagging. The child spit out a piece of red string and "something brown." In inspecting the kitchen for a source of the materials in question, Mrs. Wisniewski noticed the sandwich ingredients, including a loaf of bread purchased the previous day, on the kitchen table. She testified: ". . . I looked at the bread and I just was shocked. I just couldn't believe it. . . . It was all brown stuff in there and string and it just looked awful."

Although the child apparently suffered no further adverse effects, Mrs. Wisniewski was struck by fright at the thought of having herself ingested poison. Her fear either generated or exacerbated a physical illness, which was diagnosed by a specialist in gastroenterology, to whom she had been sent on ...


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