222 N.Y. 410, Race v. Krum

• Date: 05 February 1918
• Citation: 222 N.Y. 410
• Docket Number: .
• Parties: C. BERTRAND RACE, Respondent, v. CHARLES B. KRUM, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 410

222 N.Y. 410

C. BERTRAND RACE, Respondent,

v.

CHARLES B. KRUM, Appellant.

New York Court of Appeal

February 5, 1918

Argued January 14, 1918.

Page 411

COUNSEL

Joseph A. Lawson for appellant.

Walter B. Grant and Chester H. Lane for Childs Company, amicus curiae. A retail dealer or restaurant keeper is not an insurer of the quality of his food. He should be held liable only where he knowingly or negligently serves bad food. (Valeri v. Pullman Co., 218 F. 519; Wright v. Hart, 18 Wend. 449; Van Bracklin v. Fonda, 12 Johns. 467; Moses v. Mead, 1 Den. 378; 5 Den. 617; Burch v. Spencer, 15 Hun, 504; Devine v. McCormack, 50 Barb. 116; Miller v. Scherder, 2 N.Y. 262; Allen v. Steamship Co., 132 N.Y. 91.)

Walter Jeffreys Carlin for Association of Ice Cream Manufacturers of New York State, amicus curiae. There is no implied warranty of the wholesomeness of a food where the seller has no knowledge of its unwholesomeness and no means of obtaining such knowledge except by a bacteriological analysis. (Hoe v. Sanborn, 21 N.Y. 552.)

Edgar T. Brackett for respondent. The jury having rendered a verdict, judgment entered upon which has been affirmed, although not unanimously, under repeated decisions of the court, so far as the facts are concerned, the only question here is 'Is there any evidence warranting the verdict?' (Chainless Cycle Mfg. Co. v. Security Ins. Co., 169 N.Y. 304; Hawkins v. Mapes, 178 N.Y. 236.) The defendant warranted the cream to the plaintiff--that it was wholesome and fit for human consumption. (Van Bracklin v. Fonda, 12 Johns. 468; Moses v. Mead, 5 Den. 617; 1 Den. 378; Hart v. Wright, 17 Wend. 267; Devine v. McCormack, 50 Barb. 116; Miller v. Scherder, 2 N.Y. 267; Burch v. Spencer, 15 Hun, 504;

Page 412

Money v. Fisher, 92 Hun, 347; Rothmiller v. Stein, 143 N.Y. 581; Windsor v. Lombard, 18 Pick. 62; Kinch v. Hayes, 58 Misc. 501; Davis Provision Co. v. Fowler Bros., Limited, 20 A.D. 630; 163 N.Y. 580; Swain v. Schiffelin, 134 N.Y. 471.)

MCLAUGHLIN, J.

This action was brought to recover damages for personal injuries alleged to have resulted from the consumption by plaintiff of unwholesome and poisonous ice cream sold to him by defendant. The complaint contains two causes of action. In the first a recovery is asked on the ground that defendant was negligent in selling the cream and in the other that he warranted it to be fit for human consumption. A majority of the court is of the opinion that the answer put in issue the material allegations of each. At the conclusion of the evidence, however, plaintiff elected to go to the jury only upon the second cause of action, and the case was submitted to it on that theory. Plaintiff had a verdict and from the judgment entered thereon an appeal was taken to the Appellate Division, where the same was affirmed, two of the justices dissenting, and defendant appeals to this court.

On the 22d of June, 1911, defendant conducted a drug store in the city of Albany, and in connection with and as a part of such business sold ice cream to be consumed in the store. Some time during the evening of that day plaintiff, with two companions, entered the store and asked that each be served with ice cream, which was done, the two companions being served from one can and plaintiff from another. Plaintiff complained of the quality of the cream served him and ate only a part of it, stating it was 'not good; there is something the matter with it.' He then left the store, and as he did so the clerk who waited upon him examined the cream and he stated 'there is something wrong with that.' Within

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a very short time thereafter plaintiff was taken violently ill and remained so for several days.

The appellant attacks the validity of the judgment on the ground (a) that there was no evidence to establish the cream sold to plaintiff was the cause of his illness; and (b) the trial court erred in instructing the jury that when defendant sold the cream to plaintiff he impliedly warranted it was fit for human consumption.

As to the first contention there certainly was some evidence tending to establish that plaintiff's illness was caused by the presence of a poison known as tyrotoxicon in the ice cream; that such poison is a filth product found only in milk and milk products, including ice cream. Having ascertained from the record that there is some evidence to support the finding of the jury that there was tyrotoxicon in the cream, and that the...