Corum v. R. J. Reynolds Tobacco Co.

AdaMs, J. The appellant noted a number of exceptions during the trial but the basal controversy relates to the motion for nonsuit, the defendant contending that the record contains no adequate evidence of negligence which is actionable. We have repeatedly held, in accord with the general principle, that the fact of personal injury is not regarded as proof either of negligence or of proximate cause, and that a mere conjecture will not support an action for damages. Grimes v. Coach Co., 203 *215 N. C., 605; Rountree v. Fountain, ibid., 381. The plaintiff, however, is not required to make out his ease by direct proof, but may rely upon circumstances from which a reasonable inference of negligence may be drawn, Dail v. Taylor, 151 N. C., 284; Perry v. Bottling Co., 196 N. C., 175, in which event the evidence must be interpreted most favorably for the plaintiff, and if it is of such character that reasonable men may form divergent opinions of its import it is customary to leave the issue to the final award of the jury. There are many decisions to the effect that one who prepares in bottles or packages foods, medicines, drugs, or beverages and puts them on the market is charged with the duty of exercising due care in the preparation of these commodities and under certain circumstances may be liable in damages to the ultimate consumer. Broadway v. Grimes, 204 N. C., 623; Brown v. Bottling Co., 200 N. C., 55; Harper v. Bulloch, 198 N. C., 448; Grant v. Bottling Co., 176 N. C., 256; Cashwell v. Bottling Works, 174 N. C., 324. In this case the plaintiff adduced evidence tending to show that the defendant is the sole manufacturer of “Apple Sun-cured Tobacco”; that the tobacco in question was of this brand and had the appearance of having recently come from the store; that it was protected by a wrapper; that all the wrapper had not been removed at the time of the injury; that when a part of it was torn away the imprint of a fish-hook and a string which had been embedded in the plug of tobacco was discovered ; that some other foreign substance had been found in the same brand of tobacco within two months preceding the injury; and that the foreman of the machine room had previously had complaints that other foreign substances had been left in the manufactured product. Perry v. Bottling Co., supra. Without the necessity of invoking the maxim res ipsa loquitur, the plaintiff introduced independent evidence which called for a verdict. Without antagonizing the stated principle, the defendant takes the position that tobacco is not a food or within the category of any of the articles numerated above and is hence beyond the scope of the cited cases. The word “food” has been variously defined by lexicographers as “nutritive material taken into the body for the purpose of growth, re-, pair, or maintenance; that which is eaten or drunk for nourishment; whatever supplies nourishment to organic bodies.” It may be conceded for the present purpose that tobacco is not a food; but it does not necessarily follow that the defendant is exempt from liability. In Pillars v. R. J. Reynolds Tobacco Company, 78 So. (Miss.), 365, the plaintiff sued the defendant for damages resulting from the chewing of a piece of Brown Mule tobacco in which a decomposed human toe was concealed. After referring to the general rule and its exceptions *216 together with the contention that the limit has been reached by the courts and that the facts did not warrant an exception in favor of the plaintiff the Court observed: “We know that chewing tobacco is taken into the mouth, that a certain proportion will be absorbed by the mucous membrane of the mouth, and that some, at least, of the juice or pulp will and does find its way into the alimentary canal, there to be digested and ultimately to become a part of the blood. Tobacco may be relatively harmless, but decaying flesh, we are advised, develops poisonous ptomaines, which are certainly dangerous and often fatal. Anything taken into the mouth there to be masticated should be free of those elements which may endanger the life or health of the user. . . . The fact that the courts have at this time made only the exception mentioned to the general rule does not prevent a step forward for the health arid life of the public. The principle announced in the cases which recognize the exceptions, in our opinion, apply, with equal force, to this case.” The principle was maintained and applied in the subsequent case of R. J. Reynolds Tobacco Company v. Loftin, 99 So. (Miss.), 13, in which it appeared that in a plug of chewing tobacco there was embedded the partially decomposed body of a small snake. In Liggett & Myers Tobacco Company v. Rankin, 54 S. W. (Ky.) 612, it was shown that a worm “about the size of a match with many stingers on it” had been pressed into a plug of tobacco in the process of manufacture, and that when the plaintiff chewed the tobacco the stingers became embedded in his mouth, the inside of which “looked like a man’s face with a week’s growth of beard.” The plaintiff suffered pain, was unable to work, and brought suit for damages. Remarking that chewing tobacco is made to be chewed and that things dangerous to health when taken into the mouth are no less within the rule than things that are taken into the stomach, the Court said: “While tobacco is not a food, it acts upon the nerves and the nerves are no less to be considered than the stomach on which the food acts. The juices from the chewing of tobacco do in fact find their way to the stomach, and poison in chewing tobacco is no less dangerous to health than poison in chewing gum or a liquid taken for its effect on the nerves. Here there was a poisonous worm and the case cannot be distinguished from those where poison was found in other articles manufactured and sold for human consumption. Although chewing tobacco is not a food, it is within the rule which applies to all things manufactured for human consumption which are dangerous to health or life.” Substantially the same principle was enforced in Foley v. Liggett & Myers Tobacco Co., Inc., 241 N. Y. Sup., 233, in which the grievance was personal injury resulting from the use of “Velvet” tobacco which contained the mutilated fragments of a dead mouse. “If the nature of *217 a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing 'of danger.” McPherson v. Buick Motor Co., 217 N. Y., 382. The defendant has cited Liggett & Myers Tobacco Co. v. J. J. Cannon, L. R. A., 1916 A (Tenn.) 940, in which it was held that -a manufacturer of chewing tobacco was not liable for injury to a consumer because of the iircorporation into the product of a poisonous insect if he had no actual or constructive knowledge of its existence; but some of the decisions heretofore mentioned referred to the opinion in that case and concluded that the distinction therein stated cannot be maintained. Upon the merits of the present case we entertain a similar opinion. A fish-hook embedded and concealed in a plug of tobacco, though not a poison, is no less capable of inflicting serious physical injury. The trial court was correct in denying the motion for nonsuit. There are other exceptions in the record but none is of sufficient gravity to require a new trial. They raise familiar questions which have often been considered and determined adversely to the contention of the defendant. No error.