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Williams v. Braum Ice Cream Stores

534 P.2d 700 (Okla. Civ. App. 1975)

1974 OK Civ. App. 63

Decided Apr 24, 1975

No. 47140.

December 10, 1974. Rehearing Denied April 22,

1975. Certiorari Denied March 14, 1975. Released

for Publication by Order of Court of Appeals

April 24, 1975.

REYNOLDS, Judge:

Appeal from the District Court of Oklahoma

County; Byron McFall, Judge.

Reversed and remanded.

Keller Fernald, by Paul F. Fernald, Oklahoma

City, for appellant.

Fenton, Fenton, Smith, Reneau Moon, by Ronald

L. Day, Oklahoma City, for appellee.

Plaintiff-appellant brought this action against

defendant-appellee for breach of implied warranty

of merchantability. Defendant's Motion for

Summary Judgment was granted. Plaintiff appeals

from that ruling.

The trial court held that a cherry seed or pit found

in ice cream made of natural *701 red cherry

halves was a substance natural to such ice cream,

and as a matter of law defendant was not liable for

injuries resulting from such a natural substance.

701

The uncontroverted facts in the case show that

plaintiff purchased a "cherry pecan" ice cream

cone from defendant's retail store in Oklahoma

City, Oklahoma, on November 5, 1972. Plaintiff

ate a portion of the ice cream, and broke a tooth on

a cherry pit contained in the ice cream. Plaintiff

notified defendant of her injury and subsequently

filed this action.

There is a division of authority as to the test to be

applied where injury is suffered from an object in

food or drink sold to be consumed on or off the

premises. Some courts hold there is no breach of

implied warranty on the part of a restaurant if the

object in the food was "natural" to the food served.

These jurisdictions recognize that the vendor is

held to impliedly warrant the fitness of food, or

that he may be liable in negligence in failing to

use ordinary care in its preparation, but deny

recovery as a matter of law when the substance

found in the food is natural to the ingredients of

the type of food served. This rule labeled the

"Foreign-natural test" by many jurists, is

predicated on the view that the practical

difficulties of separation of ingredients in the

course of food preparation (bones from meat or

fish, seeds from fruit, and nutshell from the nut

meat) is a matter of common knowledge. Under

this natural theory, there may be a recovery only if

the object is "foreign" to the food served. Mix v.

Ingersoll Candy Co., 6 Cal.2d 674, 59 P.2d 144

(1936); Adams v. Great Atlantic and Pacific Tea

Co., 251 N.C. 565, 112 S.E.2d 92 (1960); See also

annotations in 77 A.L.R.2d 7 (1961); Silva v. F.W.

Woolworth Co., 28 Cal.App.2d 649, 83 P.2d 76

(1938); Goodwin v. Country Club of Peoria, 323

Ill. App. 1, 54 N.E.2d 612 (1944); Musso v.

Picadilly Cafeterias, Inc., 178 So.2d 421 (La. App.

1965). How far can the "Foreign-natural test" be

expanded? How many bones from meat or fish,

1

*702

seeds from fruit, nut shells from the nut meats or

other natural indigestible substances are

unacceptable under the "Foreign-natural test"?

The other line of authorities hold that the test to be

applied is what should "reasonably be expected"

by a customer in the food sold to him. Betehia v.

Cape Cod Corp., 10 Wis.2d 323, 103 N.W.2d 64

(1960); Ray v. Deas, 112 Ga. App. 191, 144

S.E.2d 468 (1965); Zabner v. Howard Johnson's

Incorp., 201 So.2d 824 (Fla.App. 1967); Hochberg

v. O'Donnell's Restaurant, Inc., 272 A.2d 846

(D.C.App. 1971); Bryer v. Rath Packing Co., 221

Md. 105, 156 A.2d 442 (1959); Bonenberger v.

Pittsburgh Mercantile Co., 345 Pa. 559, 28 A.2d

913 (1942).

12A O.S. 1971 2-314[ 12A-2-314] provides in

pertinent part as follows:

"(1) . . . a warranty that the goods shall be

merchantable is implied in a contract for

their sale if the seller is a merchant with

respect to goods of that kind. Under this

section the serving for value of food or

drink to be consumed either on the

premises or elsewhere is a sale.

"(2) Goods to be merchantable must be at

least such as

. . . . . .

"(c) are fit for the ordinary purposes for

which such goods are used;. . . ."

The defendant is an admitted "merchant." 12A

O.S. 1971 2-104[ 12A-2-104](1).

In Zabner v. Howard Johnson's Incorp., 201 So.2d

824 at 826, the Court held:

"The `Foreign-natural' test as applied as a

matter of law by the trial court does not

recommend itself to us as being logical or

desirable. The reasoning applied in this

test is fallacious because it assumes that all

substances which are natural to the food in

one stage or another of preparation are, in

fact, anticipated by the average consumer

in the final product served. . . .

702

"Categorizing a substance as foreign or

natural may have some importance in

determining the degree of negligence of

the processor of food, but it is not

determinative of what is unfit or harmful

in fact for human consumption. A nutshell

natural to nut meat can cause as much

harm as a foreign substance, such as a

pebble, piece of wire or glass. All are

indigestible and likely to cause injury.

Naturalness of the substance to any

ingredients in the food served is important

only in determining whether the consumer

may reasonably expect to find such

substance in the particular type of dish or

style of food served."

The "reasonable expectation" test as applied to an

action for breach of implied warranty is keyed to

what is "reasonably" fit. If it is found that the pit

of a cherry should be anticipated in cherry pecan

ice cream and guarded against by the consumer,

then the ice cream was reasonably fit under the

implied warranty.

In some instances, objects which are "natural" to

the type of food but which are generally not found

in the style of the food as prepared, are held to be

the equivalent of a foreign substance.

We are not aware of any appellate decision in

Oklahoma dealing with this precise issue.

We hold that the better legal theory to be applied

in such cases is the "reasonable expectation"

theory, rather than the "naturalness" theory as

2

Williams v. Braum Ice Cream Stores 534 P.2d 700 (Okla. Civ. App. 1975)

applied by the trial court. What should be

reasonably expected by the consumer is a jury

question, and the question of whether plaintiff

acted in a reasonable manner in eating the ice

cream cone is also a fact question to be decided by

the jury.

We reverse the granting of summary judgment in

this case and remand the same to the District

Court for proceedings not inconsistent with this

opinion.

Reversed and remanded.

BOX, P.J., and ROMANG, J., concur.