Bonenberger v. Pittsburgh Mercantile Co.

Dissenting Opinion

by Me. Justice Patteeson:

I cannot assent to the conclusion of the majority of the court in this case. It is true that under the Sales Act an implied warranty that the goods shall be reasonably fit for the purpose contemplated by the purchaser arises where the latter, either directly or by implication, makes known to the seller the purpose for which the goods are required and relies upon the skill and judgment of the seller to supply goods suitable for that purpose; and it is also true that in sales of food the warranty applies not only where the food is unfit for human consumption by reason of a noxious or impure condition of the food itself, but as well where it is rendered unfit by the presence of á foreign substance, such as a nail, stones, wire, or glass. However, as pointed out in

Cavanagh v. F. W. Woolworth

Co., 308 Mass. 423 , 32 N. E. (2d) 256, «the warranty must be reasonably construed in the light of common knowledge in reference to the article sold.” The majority would concede that no liability attaches in the case of a cherry stone in a can of cherries, or where there is a splinter of bone in a t-bone steak, and I can perceive

*565

of no sound reason for arriving at a different conclusion in the case of an oyster shell in a can of shucked oysters. In each instance the potentially harmful substance is natural to the product sold; in each the likelihood of its presence, arising from practical difficulties of separation in the course of preparation for consumption, is a matter of common knowledge; hence in the one instance, as in the others, no implied warranty can properly be said to arise. No authority has been cited by the majority for extending the liability upon an implied warranty to a case like the present, nor have I been able to find any; and I cannot believe the Act contemplates it should be so extended. This same view has been adopted by the Supreme Court of California, in the analogous case of

Mix v. Ingersoll Candy Co.,

6 Cal. (2d) 674, 59 Pac. (2d) 144 , followed in

Silva v. F. W. Woolworth Co.,

28 Cal. App. (2d) 649, 83 Pac. (2d) 76 , where a customer of a restaurant sought to recover on the theory of implied warranty for injuries sustained when he swallowed a small chicken bone concealed in a chicken pie. In holding that no breach of warranty was involved, the court said: “Although it may frequently be a question for a jury as the trier of the facts to determine whether or not the particular defect alleged rendered the food not reasonably fit for human consumption, yet certain cases present facts from which the court itself may say as a matter of law that the alleged defect does not fall within the terms of the statute. ... It is not necessary to go so far as to hold that chicken pies usually contain chicken bones. It is sufficient if it may be said that as a matter of common knowledge chicken pies occasionally contain chicken bones. We have no hesitancy in so holding, and we are of the opinion that despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption. Bones which are natural lo the type of meat served cannot legitimately be called a foreign substance. ... We do not believe that

*566

the onerous rule should be carried to absurd limits.” On the basis of reason, and upon authority as well, I am of opinion that the judgment of the court below was correct and ought to be affirmed.

Mr. Chief Justice Sci-iaffer concurs in this dissenting opinion.