Summary
stating that the sale of unwholesome food would impose absolute liability on the seller for breaching the implied warranty of fitness
Summary of this case from CabáN v. SeafoodOpinion
No. 38932.
July 3, 1944.
1. SALES: Negligence: Sale of Food: Implied Warranty of Wholesomeness. There was an implied warranty that the ham sandwich sold by defendant was wholesome.
2. SALES: Negligence: Trial: Sale of Food: Implied Warranty of Wholesomeness: Proximate Cause of Sickness Not Established. Plaintiff's proof that he became sick after eating a ham sandwich purchased from defendant was not sufficient to show that any unwholesome condition of the food was the proximate cause of his illness.
Writ of error to Jackson Circuit Court. — Hon. Emory H. Wright, Judge.
AFFIRMED.
Calvin Kimbrell for plaintiff in error.
(1) Where food or drink is sold for immediate human consumption, there is an implied warranty, on the part of the seller, that the same is wholesome and fit for such consumption. Consequently, where a purchaser of such food or drink is rendered ill, upon and as a result of his consuming the same, he has, and may maintain, an action in damages against the seller for the breach of such implied warranty; and, upon his showing that he purchased such food or drink from the seller; and, upon and as a result of his consuming the same, he became, or was made, ill, a prima facie case of liability, on the part of the seller, is presented. Smith v. Carlos, 215 Mo. App. 488, 247 S.W. 468; Crocker Wholesale Grocer Co. v. Evans, 272 S.W. 1017; Fantroy v. Schirmer, 296 S.W. 235; Beyer v. Coca-Cola Bottling Co. of St. Louis, 75 S.W.2d 642; Hickman v. St. Louis Dairy Co., 90 S.W.2d 177; Madouros v. Kansas City Coca-Cola Bottling Co., 230 Mo. App. 275, 90 S.W.2d 445; Degouveia v. H.D. Lee Mercantile Co., 100 S.W.2d 336; Nemela v. Coca-Cola Bottling Co. of St. Louis, 231 Mo. App. 447, 104 S.W.2d 773; Hutchison v. Moerschel Products Co., 234 Mo. App. 518, 133 S.W.2d 701; Carter v. St. Louis Dairy Co., 139 S.W.2d 1025; Heinenmann v. Barfield, 136 Ark. 500, 207 S.W. 62; Parks v. G.C. Yost Pie Co., 93 Kan. 334, 144 P. 202, L.R.A. 1915C, 179; Ward v. Great Atlantic, etc., Tea Co., 231 Mass. 90, 120 N.E. 225, 5 A.L.R. 242; Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100; Botti v. Venice Grocery Company, 35 N.E.2d 491, 135 A.L.R. 1387; Pelletier v. Dupont, 124 Me. 269, 128 A. 186, 39 A.L.R. 972; Zielinski v. Potter, 195 Mich. 90, 161 N.W. 851, L.R.A. 1917D, 822; Race v. Krum, 222 N.Y. 410, 118 N.W. 853, L.R.A. 1918F, 1172; Catani v. Swift Co., 251 Pa. 52, 95 A. 931, L.R.A. 1917B, 1272; Ketterer v. Armour Co., 247 F. 921, L.R.A. 1918D, 798; Pickard v. Smith, 40 F.2d 803; Upton v. Harrison, 68 F.2d 232, 292 U.S. 633, 78 L.Ed. 1486; F.W. Woolworth Co. v. Wilson, 74 F.2d 439, 98 A.L.R. 681; Fisher v. Washington Coca-Cola Bottling Co., 84 F.2d 261, 105 A.L.R. 1034. (2) A demurrer to the evidence admits as true every fact and circumstance which the evidence adduced by the plaintiff tends to prove; and the plaintiff is entitled to the benefit of every inference of fact which may be reasonably drawn therefrom; and is sustainable only when the facts in evidence, and the legitimate inferences to be drawn from such facts are so strongly against the plaintiff as to leave no room for reasonable minds to differ. Gannon v. Laclede Gaslight Co., 243 Mo. 502, 43 L.R.A. 505, 46 S.W. 968; Stauffer v. Ry. Co., 243 Mo. 305, 147 S.W. 1032; Goucan v. Atlas Portland Cement Co., 317 Mo. 919, 298 S.W. 789; Randol v. Kline's, Inc., 322 Mo. 746, 18 S.W.2d 500; Morris v. Atlas Portland Cement Co., 323 Mo. 307, 19 S.W.2d 865; Clark v. Atchison Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Orlann v. Laederich, 388 Mo. 783, 92 S.W.2d 190. Madden, Freeman, Madden Burke, John G. Madden and William K. Atwood for defendant in error.
(1) The evidence failed to support the pleaded charge that the meat in the sandwich which defendant served to plaintiff was unwholesome and unfit for human consumption. Brown v. Metropolitan Life Ins. Co., 151 S.W.2d 499; Cox v. M.-K.-T. Ry. Co., 76 S.W.2d 411; Pedigo v. Roseberry, 102 S.W.2d 600; Scanlon v. Kansas City, 28 S.W.2d 84; Conduitt v. Trenton Gas Co., 31 S.W.2d 21; Hunter v. Joplin P. Ry. Co., 197 P. 1092; Southern Ice Utilities Co. v. Barra, 62 P.2d 988. (2) Failure to prove the cause of action pleaded justified a directed verdict for the defendant. Orcutt v. Century Building Co., 201 Mo. 424; Ford v. Dickinson, 217 S.W. 294, 280 Mo. 206; Gilliland v. Bondurant, 59 S.W.2d 679; Anderson v. St. Louis-S.F. Ry. Co., 149 Mo. App. 266; Kennedy v. Natl. Accident Ins. Co., 76 S.W.2d 748; Hughes v. Kiel, 100 S.W.2d 48; Bay v. Wank, 255 S.W. 324; Cole v. Armour, 154 Mo. 333; Mills v. Metropolitan St. Ry. Co., 221 S.W. 1; Wolfskill v. American Union Life Ins. Co., 172 S.W.2d 471; Rice v. White, 239 S.W. 141; Tate v. Western Union Telegraph Co., 76 S.W.2d 1080; Bonnarens v. Lead Belt Ry. Co., 273 S.W. 1043; Lee v. Shryack-Wright Gro. Co., 53 S.W.2d 406; Beave v. Transit Co., 212 Mo. 331; McGrath v. St. Louis Transit Co., 197 Mo. 97.
This is an action for $10,000.00 damages for injuries from food poisoning claimed to be due to unwholesome food sold to plaintiff by defendant. The court directed a verdict for defendant and plaintiff has appealed from the judgment entered thereon.
Plaintiff's petition alleged that he ate a ham sandwich at defendant's cafeteria; that "the meat contained in said sandwich, although such fact was then unknown to him, was unwholesome and totally unfit for human consumption"; and that "by reason of his having eaten and consumed the same, as aforesaid, he became, and was, poisoned thereby".
As to his health prior to the time he was served this sandwich by defendant, plaintiff said: "I never had any illness, nor any difficulty in eliminating my food. It was never necessary for me to take laxatives of any kind except in connection with the treatment for a cold. My appetite was good and I could eat any kind of food I desired." He said that on the day preceding his illness (Saturday) he had a meal around noon; and that he went down town in the afternoon and about 4:00 P.M. had a bowl of soup and a glass of milk. That evening he and his wife, with his co-employees, "about four couples, had been attending a dance at the Pla-Mor, at 3142 Main Street", and he "drank a cherry coke at the Pla-Mor." After midnight (about 1:30 A.M. Sunday) plaintiff, and his companions, went to defendant's cafeteria, where defendant "ordered a barbecued ham sandwich." Plaintiff testified about this as follows: "Q. This sandwich, I assume, consisted of barbecued meat and barbecue sauce and bread? A. Yes, barbecued ham. . . . Q. When you ate that sandwich you did not notice anything unusual about the taste of it, did you? A. No, sir. Quite the contrary, it was very good. [658] Q. As a matter of fact it was the best barbecued sandwich you had ever eaten? A. That is the truth. Q. And you had eaten a good many of them? A. I had."
Plaintiff then went home, feeling well, and went to bed. About 5:00 A.M. he awoke with nausea which resulted in vomiting and diarrhea. A physician was called (Dr. Ferguson) who testified, as follows: "When I found him with the diarrhea and vomiting, and bloody stools, and all, and in this condition, I believed it was due to something he had taken into the stomach in the way of food, and I thought it was a food poisoning, and that was my idea at that time. . . . Most cases we see are well in a few days, or a week or two, with diarrhea for a time, and then returning to normal, and most of them do. Q. Do some persist for some time with the condition, that is over a period of time? A. Some poisons, if severe enough, will kill, if the ptomaine is powerful enough. Q. Doctor, from what does ptomaine poisoning commonly occur? A. It is more often due to meat." Plaintiff testified that he was unconscious while the doctor was attending him. He went back to work on the following Tuesday and worked part time for five or six weeks. He then went to a hospital for a week for X-ray examination. The hospital record shows his diagnosis as "Irritability of colon". Findings there were not shown except as to negative reactions to certain tests.
Defendant concedes, as contended by plaintiff, that the petition states a cause of action on the implied warranty of wholesomeness of the ham sandwich served; and that the sale of unwholesome ham would cast absolute liability upon defendant which could not be avoided by proof of due care. [Race v. Krum, 222 N.Y. 410, 118 N.E. 853, L.R.A. 1918F 1172 and cases cited; Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100; Botti v. Venice Grocery Co. (Mass.), 35 N.E.2d 491, 135 A.L.R. 1387; Smith v. Carlos, 215 Mo. App. 488, 247 S.W. 468; Fantroy v. Schirmer (Mo. App.), 296 S.W. 235; Degouveia v. H.D. Lee Mercantile Co. (Mo. App.), 100 S.W.2d 336; Nemela v. Coca-Cola Bottling Co. (Mo. App.), 104 S.W.2d 773; Hutchison v. Moerschel Products Co., 234 Mo. App. 518, 133 S.W.2d 701.] Thus the sole question here is whether plaintiff produced any substantial evidence to prove the breach of warranty alleged, namely, that the meat in the sandwich was unwholesome and the cause of plaintiff's sickness.
Plaintiff's proof was not sufficient according to the authorities which have considered the question. In Geisness v. Scow Bay Packing Co. (Wash.), 132 P.2d 740, the court said: "The unwholesome character of food is not established, nor is a prima facie case made, merely by showing that the plaintiff became sick after eating it. Poovey v. International Sugar Feed No. 2 Co., 191 N.C. 722, 133 S.E. 12; Gracey v. Waldorf System, 251 Mass. 76, 146 N.E. 232. We might add that the rule last above announced seems to be universal." Likewise, in Frankes, Inc., v. Bennett (Ark.), 146 S.W.2d 163, where plaintiff claimed to have been made ill from eating sea scallops, the court said: "We do not think that, the mere fact that a person eats food in a restaurant, hotel or cafeteria and thereafter becomes ill, is of itself sufficient to establish liability on the owner, but the proof must go further and show that some particular article of the food consumed was in fact unwholesome and unfit for human consumption."
Plaintiff has shown nothing more in this case. Not only that, but his own testimony about the sandwich tended to show its wholesomeness rather than any unwholesomeness. Furthermore, he partook of food or beverage on four different occasions within eighteen hours (three of them in less than twelve hours) of the time he became sick. He had no medical testimony whatever to prove that eating this ham did cause his illness. [See Hunt v. Armour Co., 345 Mo. 677, 136 S.W.2d 312 and cases cited 136 S.W.2d l.c. 316.] His physician only "thought" his condition was food poison; he made no definite statement that it was or, if so, what did cause it. True he said ptomaine is more often due to meat. However, the cases we have cited, show that such effects also occur from soft drinks, milk and milk products, and as suggested in Frankes v. Bennett, from allergy even when there is no unwholesomeness. This leaves plaintiff's case in the realm of speculation and conjecture. Therefore, we hold that the trial court correctly directed the verdict for defendant.
The judgment is affirmed. All concur.