Salazar v. Chapultopec Grocery

McCOMB, J.

From a judgment in favor of defendant after trial before the court without a jury in an action to recover damages for injuries resulting from eating candy bars manufactured by defendant Curtiss Candy Company, plaintiff appeals.

Facts: Defendant Curtiss Candy Company manufactured Baby Ruth candy bars. Defendant Chapultopec Grocery Corporation purchased some of these candy bars from the Fuji Company which had had them in its possession for about six weeks prior to the time plaintiff purchased two of the bars from said defendant. The evidence failed to disclose from whom the Fuji Company purchased them.

Plaintiff, after eating a portion of two of the candy bars, discovered that they had worms which caused her to become sick and nauseated. After receiving the evidence produced by the parties, the trial court made, among others, the following findings:

“That said Baby Ruth candy bars were manufactured with extraordinary care, skill and workmanship and when sold and delivered by said Curtiss Candy Company to independent jobbers and wholesalers, said candy bars were pure, wholesome and fit for human consumption and remained in a pure, wholesome condition as long as they were in the possession, control, and subject to the right of control of the Curtiss Candy Company.

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“That any worms that were in said candy bars at the time plaintiff purchased and ate same were developed after the defendant Curtiss Candy Company parted with its possession, control and right to control said candy.”

Thereafter the trial court drew this conclusion of law:

“That there was no implied warranty on the part of the Curtiss Candy Company that said candy bars would continue to be reasonably fit for human consumption or of a merchantable quality after the manufacturer, the Curtiss Candy Company, parted with its possession, control, and the right to control the same.”

A nonsuit was granted in favor of defendant Chapultopec Grocery. From this order there has been no appeal. The trial court gave judgment in favor of defendant Curtiss Candy Company.

Plaintiff urges

that the above mentioned conclusion of law was prejudicially erroneous and requires a reversal of the judgment.