At the close of plaintiff’s evidence, the defendant made a motion for judgment as in case of nonsuit. C. S., 567. The court below overruled this motion and in this we can see no error.
The plaintiff’s cause of action is based on the alleged negligence of the defendant in the manufacture and sale of a plug of tobacco containing a fishhook.
*110It is well settled in this jurisdiction that to hold the manufacturer liable, the basis of liability is negligence rather than implied warranty, although in some jurisdictions a recovery may be had under implied warranty. Nor can the plaintiff rely upon the doctrine of res ipsa loquitur. Ward v. Sea Food Co., 171 N. C., 33; Grant v. Bottling Co., 176 N. C., 256; Perry v. Bottling Co., 196 N. C., 175; Thomason v. Ballard & Ballard Co., 208 N. C., 1; Enloe v. Bottling Co., 208 N. C., 305.
We think the present action is similar to Corum v. Tobacco Co., 205 N. C., 213, and Daniels v. Swift & Co., 209 N. C., 567. The Corum case, supra, was tried by Schenck, J., in the Superior Court and from a verdict for plaintiff an appeal was taken to this Court and there was found no error in the judgment of the lower court. The facts: “The defendant manufactures a brand of plug or chewing tobacco known as ‘Apple Sun-cured.’ It sold some of this tobacco to J. W. Smitherman, a wholesale merchant in Winston-Salem, who in turn sold it to Norman Brothers at East Bend, in Yadkin County. On 4 June, 1931, the plaintiff bought a plug of it from Norman Brothers and returned to his home, which is about a mile from East Bend. He offered evidence tending‘to show that at 1:30 o’clock while going back to East Bend he put a part of the plug in his mouth to bite off a chew and ‘jerked tho tobacco,’ when a fish-hook which was embedded in the plug ‘stuck in the inner side of his lip and came out on the outside’; that with the fish-hook and the tobacco he went to a physician who removed the hook; that after its removal, the plaintiff ‘prized the tobacco open’ and found a mark inside ‘where the fish-hook had been lying’; that on the end of the hook there was a piece of string about two inches long; that he suffered pain, was given anti-toxin to prevent tetanus, had difficulty in opening and closing his mouth, and complained of stiffness in his jaw and neck..” The Court, in its opinion, said, at p. 215 (Adams, J.) : “There are many decisions to the effect that one who prepares in bottle 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; Broom v. Bottling Co., 200 N. C., 55; Harper v. Bullock, 198 N. C., 448; Grant v. Bottling Co., 176 N. C., 256; Cashwell v. Bottling Works, 174 N. C., 324. In this ease 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 the fish-hook and a string which had been embedded in the plug of tobacco was discovered; that some *111other foreign substance bad 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 (196 N. C., 175). Without the necessity of invoking the maxim res ipsa loquitur, the plaintiff introduced independent evidence which called for a verdict.”
In Daniels v. Swift & Co., supra, it was held: “Plaintiff’s evidence tended to show that he was injured by particles of glass eaten by him in sausage prepared by defendant manufacturer, and that a short time prior to his injury plaintiff had found grit in similar sausage prepared by defendant, and that the deleterious substances were found inside the casings in which the sausage was stuffed. Held: The evidence was sufficient to be submitted to the jury on the issue of defendant’s negligence.” The above cited cases have never been overruled, and, therefore, the law in this case.
Upon examination of the evidence in the present case respecting the circumstances relied on by the plaintiff to show negligence, we find that the witness Ball, within two months of the time of the injury sustained by the plaintiff, while taking a chew of the same brand of tobacco manufactured by the defendant, discovered what appeared to be a rat’s claw, or squirrel’s foot. The appellant contends that such evidence is incompetent on the grounds of being opinion evidence from an unqualified witness. The witness, having testified that it was a foreign substance, could certainly go further and testify what it looked like. He made no minute examination of what he found, having been repulsed with the idea of having had it in his mouth. To show his disgust and repulsion at the experience, he “just throwed it down.”
The charge of the court below covered every aspect of the case and applied the law applicable to the facts. We see no merit in any of the exceptions and assignments of error made by defendant. We see no prejudicial or reversible error in the contentions of the court below in regard to expenditures for medical and hospital bills. Defendant relied mainly on the motion to nonsuit, which cannot be sustained under the authorities applicable to the facts in this case.
For the reasons given, in the judgment of the court below we find
No error.