Edward C. Betehia v. Cape Cod Corporation

The judgment dismissed the complaint for failure to state a cause of action for breach of an implied warranty or for negligence.
The action was brought by Edward C. Betehia to recover damages for injuries caused by a chicken bone in a chicken sandwich
purchased from the defendant, Cape Cod Corporation. In December, 1957, the plaintiff, while a patron of the Cape Cod Inn, in Milwaukee, Wisconsin, ordered, consumed on the premises,
and paid for a chicken sandwich. The sandwich consisted of a layer of two of three pieces of sliced white chicken meat and
a layer of lettuce between two slices of bread, was served cut diagonally and pinned with toothpicks. The plaintiff first
ate the meat and then bit into the portion of the sandwich containing the bread and the lettuce. Imbedded in the lettuce was
a sharp fragment of chicken bone about one and one-half inches long and about one-eighth of an inch in diameter at its thickest
point. As the plaintiff swallowed he felt a sharp pain in the lower part of his throat. The bone eventually became lodged
in the plaintiff's rectal area causing severe laceration and infection, which required surgery. The complaint alleged an implied
warranty and the breach thereof and also the plaintiff used due care in consuming the sandwich, the defendant was negligent
in making the sandwich and in failing to examine the layer of lettuce to make certain no foreign material was imbedded therein,
the serving of the sandwich violated the provisions of sec. 97.25, Stats., 15 W.S.A. p. 501 (Adulteration Drugs & Foods)
and the defendant's negligence was the proximate cause of plaintiff's injury. The defendant's demurrer to the complaint was
sustained and the plaintiff appealed.