247 F. 921 (2nd Cir. 1917), 11, Ketterer v. Armour & Co.

Docket Nº:11.
Citation:247 F. 921
Case Date:December 11, 1917
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 921

247 F. 921 (2nd Cir. 1917)




No. 11.

United States Court of Appeals, Second Circuit.

December 11, 1917

Page 922

Chas. Dushkind, of New York City, for plaintiff in error.

Breed, Abbott & Morgan, of New York City, and A. R. Urion, W. C. Kirk, and A. F. Reichman, all of Chicago, Ill., for defendant in error.

See, also, 200 F. 322.

The plaintiff is a subject of the Emperor of Germany and a resident and inhabitant of the state of New York in the Southern district thereof.

The defendant is a corporation organized and existing under the laws of the state of Illinois, and is engaged in the interstate commerce of meat and food products.

It is alleged that defendant caused to be transported from a state other than the state of New York to the city and state of New York cerain food products consisting of prepared pork or lachshinkens which had not been inspected, and had not been thoroughly cured, and which had been falsely marked as 'Inspected and Passed'; that the plaintiff procured from a dealer in the city of New York some of the said pork or lachshinkens not knowing that it was unwholesome, diseased, and infected with parasites known as trichinae, and that it was dangerous to the life, health, and safety of the consumers thereof as an article of food; that the plaintiff ate of the lachshinkens, as a result of which she became seriously sick, suffered great pain and agony; that the plaintiff's health in consequence was permanently impaired; that for a long time after her illness she was unable to perform any work whatsoever, and was compelled to expend various sums for medicine and medical treatment; and that her injuries resulted from the defendant's negligence as aforesaid. Damages were asked in the sum of $6,000.

The defendant demurred to the complaint on the theory that a manufacturer who deals with a middleman and not directly with the consumer owes the latter no duty whatever except the duty owing to all men to refrain from knowingly and willfully inflicting injury. The demurrer was overruled by Judge Noyes sitting at the time in the Circuit Court, and defendant was allowed to answer over. (D.C.) 200 F. 322. An answer was then put in which denied the allegations of the complaint. The case went to trial, and at the end thereof the defendant moved for a nonsuit and the direction of verdict, and both motions were denied. The jury, after being out some time, reported it could not agree, but was sent back to continue its deliberations, and after a time returned a verdict in favor of the plaintiff for six cents. A motion was then made on behalf of defendant to set aside the verdict as being contrary to the law and the evidence, and to dismiss the complaint on the ground that the evidence failed to establish a cause of action. This motion was granted, and the plaintiff brought the case on writ of error to this court.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

Page 923

ROGERS, Circuit Judge (after stating the facts as above).

This is not an action upon a contract either express or implied. The basis of the complaint is the negligence of the defendant, and the action is in tort. It is alleged that the defendant negligently failed to perform its duty to make or cause to be made certain inspections for the discovery or detection of certain infection, disease, or parasites in the carcasses of hogs so that such carcasses might be eliminated from those sold for human consumption as food, or from those used in the prepared food products sold for human consumption. It is also alleged that it failed to have a certain food product, the lachshinkens, which it prepared, sold, and caused to be transported in interstate commerce, thoroughly cured, and thereby imperiled and endangered the life and health of the plaintiff, a consumer thereof.

A lachshinken is made up of two or more loins of pork put up in a casing in the form of a heavy bologna, and is cured and smoked and sold to the trade as a prepared food ready for consumption. It was not sold to the plaintiff, but to one Heimerdinger in whose family she was employed as a domestic. Heimerdinger purchased the product from a dealer who purchased it from defendant. The members of Heimerdinger's family, including the plaintiff, partook of it, and all who partook of it became seriously ill. The disease was diagnosed by the physicians as trichinosis, the nature of the disease being determined, not merely upon objective symptoms, but upon a scientific blood test, which proved unmistakably the character of the disease. Trichinosis is a disease that can be contracted only by eating pork or ham from hogs infected with a certain parasite known as trichinae. The claim is that the lachshinkens which the plaintiff ate were infected with trichinae, and that the defendant is responsible, as it put them on the market and sold them without making the necessary examination to determine whether the pork was infected with trichinae.

One of the absolute rights which every person possesses and is entitled to enjoy, whether out of society or in it, is that of personal security, which consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation; and more specifically as to the right to health Blackstone defines it as the right to 'the preservation of a man's health from such practices as may prejudice or annoy it.' 1 Blackstone, p. 134. It is elementary that every wrongful violation of a right of personal security which causes damage gives rise to a liability to make compensation for the damage done, and is a tort. In the present case the action is not based on any contract for no privity of contract exists between plaintiff and defendant. The plaintiff bought nothing from defendant, and bought nothing from the dealer to whom defendant sold the product which he had prepared. But that fact does not necessarily preclude a right of recovery under the circumstances of this case.

Blackstone in his Commentaries, vol. 3, p. 165, says that in contracts for provisions it is always implied that they are wholesome, and that if they be not, an action on the case lies for deceit. In referring to this it is said in American & English Encyclopedia of Law, vol. 15, p. 1237, that:

Page 924

'No authority is cited for this proposition, and it is believed that the English cases support the rule that at common law there is no implied warranty of quality, fitness, or wholesomeness in the sale of provisions, even when sold by a dealer for immediate domestic use, except in cases where such warranty would be implied from the facts and circumstances of the sale, independently of the fact that the thing sold was an article for domestic consumption.'

In 35 Cyc. 406, the statement is that:

'There is no implied warranty of the quality of provisions when they are sold merely as merchandise, as for instance when the articles are sold to a middleman, or are sold to a dealer for the purpose of resale, especially where the seller himself is not a regular dealer, it being held that in such transactions the rule of caveat emptor applies. The rule prevails even when the seller knows that the buyer intends to resell to the consumer. But there is at least a warranty that the articles shall be merchantable. It is, however, the general rule that where the sale is for immediate consumption there is an implied warranty that the food is wholesome and fit for the purpose, irrespective of the seller's knowledge of defects therein.'

The general rule of the common law is undoubtedly that upon a sale of goods, if there be no express warranty of the quality of the goods sold and no fraud, the maxim caveat emptor applies, and no warranty is implied by law. Howard v. Emerson, 110 Mass. 320, 14 Am.Rep. 608. It was contended in that case that when articles of food are sold for immediate domestic use, the general rule does not apply, and that there is an implied warranty or representation that they are sound and fit for food. The court said:

'But we think that this exception, if established, does not extend beyond the case of a dealer who sells provisions directly to the consumer for domestic use. In such cases it may be reasonable to infer a...

To continue reading