Wernick v. Bob Ware's Food Shops, Inc.

In this action of tort or contract the plaintiff seeks damages for a broken tooth alleged to have been caused by biting on a *20whole date pit in a date muffin which she had purchased from the defendant.

There was a finding for the plaintiff, the judge holding that the defendant was negligent in the preparation of the muffin. The decisive points raised by the defendant’s requests which the judge denied are that the evidence neither warranted a finding that the defendant was negligent nor that there was a breach of warranty by it.

G. L. c. 94, §4, a penal statute, provides: “There shall not be used…