Pine Grove Poultry Farm, Inc. v. Newtown By-Products Mfg. Co.

• Decision Date: 29 May 1928
• Citation: 162 N.E. 84,248 N.Y. 293
• Parties: PINE GROVE POULTRY FARM, Inc., v. NEWTOWN BY-PRODUCTS MFG. CO., Inc.
• Court: New York Court of Appeals Court of Appeals

248 N.Y. 293

162 N.E. 84

PINE GROVE POULTRY FARM, Inc.,

v.NEWTOWN BY-PRODUCTS MFG. CO., Inc.

Court of Appeals of New York.

May 29, 1928.

Action by the Pine Grove Poultry Farm, Inc., against the Newtown By-Products Manufacturing Company, Inc. The Appellate Division, Second Department (222 App. Div. 834, 226 N. Y. S. 886), reversed a judgment of the Trial Term entered on a verdict in favor of plaintiff, and dismissed the complaint, and plaintiff appeals.

Judgment of the Appellate Division reversed, and that of the Trial Term affirmed.Appeal from Supreme Court, Appellate Division, Second Department.

Harold R. Medina and Edward Gluck, both of New York City, and C. Elmer Spedick, of Brooklyn, for appellant.

Murray G. Jenkins, of New York City, for respondent.

O'BRIEN, J.

Plaintiff operates an extensive duck farm on the south shore of Long Island. Defendant manufactures a brand of poultry feed known as meat scrap. It consists of scraps of meat procured from butcher shops, seasoned and ground and sifted through a screen, then packed in bags and sold to retail dealers. From such a dealer plaintiff purchased large quantities and upon it fed its ducks. Several thousand died. This high mortality was traced to the presence in the feed of fine particles of steel wire which had been fastened by butchers to the meat and, still attached to the scraps, was ground with them. The question is presented whether, in the absence of privity between the manufacturer and the ultimate purchaser, plaintiff can recover.

Theories based upon common-law rules of negligence need not now be considered. An answer to the question whether the doctrine of common-law negligence founded upon the principles applied in such decisions as Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, and MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440, shall be further extended to include damage to property rights as distinguished from personal injuries, may prudently be reserved for the future. Before us now is a set of facts which requires disposition according to statutory enactment. The action is based upon negligence. The complaint alleges it. The jury found it. The verdict rests upon evidence, so clear that its truth cannot be and is not assailed, proving that the feed contained ground wire and that the loss of the poultry resulted from that cause. The court, adopting the theory of negligence pleaded by plaintiff, charged the rule relating to reasonable care. In view of the statute he might have correctly charged negligence as matter of law.

The Farms and Markets Law (Consol. Laws, c. 69) controls this case. Section 130 prohibits the sale of any concentrated commercial feeding stuffs containing any substances injurious to the health of animals, and section 128 defines ‘concentrated commercial feeding stuffs' as including ground ‘beef’ or fish scraps and ‘all other materials of a similar nature.’ The meat scraps sold by defendant and fed to plaintiff's poultry are alleged in the complaint to be ‘Red X Brand Meat Scraps.’ Throughout the trial reference was usually made to them as such, yet on several occasions, without objection by defendant, they were described as ‘beef’ scraps. The scraps of meat of which the feed was composed were gathered indiscriminately from a thousand shops. A proportion of this meat must have been beef. Even if the proportionof beef to the other meats were low, the material in the finished product, being meat, was of a similar nature to ground beef scrap. The feed falls within the type of food defined by sections 128 and 130. It was proved to be injurious to the health of animals, and therefore its sale was prohibited. Violation...