Goashgarian v. Netop Lunch Inc. ( 1933 )

POULIOT, J.

This cause is before the Court on defendant’s motion for a new trial after a jury returned a verdict for the plaintiff for $500.

For plaintiff: Fergus J. McOsker. For defendant: Henshaw, Lindemuth & Baker.

On October 3, 1931, plaintiff went into the restaurant operated by the defendant and bought a vegetable dinner. When she bad partly eaten it, she saw in tbe spinach on her plate what she thought was the hind part o:f a mouse. At the realization that she might have eaten some of it, she suffered a nervous reaction.

The defendant does not deny that in the food served to the plaintiff there was something that did not belong there. It claims it was not a mouse, hut a spinach root with a bug on it and might have been mistaken for a mouse. It seeks to avoid liability by explaining that the spinach used came in sealed cans, was heated in the restaurant and poured into -a crock from which it was portioned out to the customer. Its claim is that if any negligence exists, it is the negligence of the packer.

That would be true if the plaintiff had bought the original package, but where the defendant opened it, although it used precaution in handling its contents, it should see that it is fit for consumption before passing it on to its patrons.

The amount of damages is higher than possibly would have been awarded by a Court sitting without a jury, but is not so excessive that it shocks the conscience of the Court.

Motion for new trial denied.