Barrango v. Hinckley Rendering Co.

119 N.E. 746, 230 Mass. 93, 1918 Mass. LEXIS 927

• Court: Massachusetts Supreme Judicial Court
• Decided: May 22, 1918
• Status: Published

Opinion

Crosby, J.

This is an action of tort tq recover for personal injuries, received by the plaintiff while using a bar of soap in which a needle had become embedded. The plaintiff, a minor, acting as agent for her mother, exchanged with the defendant’s employee “a dish of bones” for the soap in which the needle was concealed.

The defendant operated a rendering plant in Somerville and sent out its drivers and teams and collected soap grease, giving in payment therefor soap which it kept in large quantities in boxes at its factory. The defendant does not make soap from the grease which it purchases, nor does it manufacture the soap which it gives in exchange for grease; and while it does not appear from the record from whom the defendant purchased this soap, it is a reasonable inference that it was acquired either from the manufacturer or from others in the usual course of the defendant’s business. Accordingly the defendant could not have been found to be a manufacturer of the soap, but was a retail dealer in selling the soap presumably purchased from another.

It is settled that, in the absence of negligence, a retail dealer in selling a commodity not inherently harmful or dangerous is not liable in tort for its defective condition which causes injury to another. Lebourdais v. Vitrified Wheel Co. 194 Mass. 341. Crocker v. Baltimore Dairy Bunch Co. 214 Mass. 177. Thornhill v. Carpenter-Morton Co. 220 Mass. 593. Kusick v. Thorndike & Hiz, Inc. 224 Mass. 413. Hasbrouck v. Armour & Co. 139 Wis. 357.

There is nothing inherently dangerous in a bar of soap; and it does not appear how or when the needle became embedded in it, or that the defendant knew of its presence before delivering it to the plaintiff or could have known of it by the exercise of reasonable diligence. Whether it came there during the process of manufacture or afterwards is wholly a matter of conjecture. The testimony of the defendant’s driver, in substance, that a nail is sometimes found in the bars and that he examines them before delivery to purchasers, is not evidence of negligence.

The case of Hunt v. Rhodes Brothers Co. 207 Mass. 30, cited by the plaintiff, is not an authority in favor of her contention. In that case the plaintiff was injured by reason of coming in contact with a tack embedded in a leg of lamb; it was admitted that there was evidence of negligence on the part of the defendant’s servant, and the only question was whether there was sufficient evidence to warrant a finding that the husband of the plaintiff in purchasing the meat acted as her agent. This is not a case where the doctrine of res ipso loquitur applies. Kusick v. Thorndike & Hix, Inc. supra.

As there was no evidence to warrant a finding that the defendant was negligent, the presiding judge rightly directed a verdict for the defendant.

Exceptions overruled.