S. H. Kress & Co. v. Ferguson

• Decision Date: 24 May 1933
• Docket Number: No. 2338.,2338.
• Citation: 60 S.W.2d 817
• Parties: S. H. KRESS & CO. v. FERGUSON et al.
• Court: Texas Court of Appeals

Page 817

60 S.W.2d 817

S. H. KRESS & CO. v. FERGUSON et al.

No. 2338.

Court of Civil Appeals of Texas. Beaumont.

May 24, 1933.

Rehearing Denied May 31, 1933.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Action by Zell Ferguson and husband against the S. H. Kress & Co. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Terrell, Davis, McMillan & Hall, of San Antonio, for appellant.

Perry J. Lewis, H. C. Carter, Randolph L. Carter, and Champe G. Carter, all of San Antonio, for appellees.

O'QUINN, Justice.

This is an action by appellee Zell Ferguson, joined by her husband, D. B. Ferguson, against S. H. Kress & Co., for damages alleged to have resulted from the sale to her of impure and unwholesome ice cream. She alleged that appellant is a Texas corporation, and on August 4, 1928, was operating a department store on Houston street in the business district of San Antonio, Tex., and in connection therewith operated a lunch counter and a soda fountain, where it prepared and sold food and drinks to the public for specified prices set out upon menu cards furnished patrons. That about the noon hour on said date she entered said store, seated herself at the lunch counter, and ordered certain food and an ice cream soda, which was prepared and sold to her for immediate consumption. That she ate said ice cream soda, and that the ice cream contained poisonous and deleterious ingredients which were unwholesome and unfit for consumption as food, and as a result she was poisoned and made severely sick and sustained severe and permanent injuries.

She further alleged that appellant negligently caused and permitted said ice cream soda to contain poisonous and deleterious ingredients, and in the preparation of said ice cream soda negligently placed therein ice cream and other ingredients which were poison and unfit for human consumption; that appellant negligently failed to ascertain and see that the ice cream put into the ice cream soda was pure and wholesome and fit for human consumption; and that appellant negligently put into said ice cream soda ice cream and ingredients which were poison and injurious and unfit for food.

She further alleged that appellant impliedly warranted that the ice cream soda and ice cream and the ingredients contained therein were wholesome and fit for consumption as food. Severe and permanent injuries were alleged to have been suffered by said Zell Ferguson, fully and minutely pleading same, by reason of which she was damaged in the sum of $25,000, for which she prayed judgment.

Appellant answered by general demurrer, general denial, and specially denied that it was negligent in the particulars alleged by appellees and that if the ice cream did contain any harmful or deleterious ingredients that appellant was not in any way guilty of negligence, in that it did not manufacture the ice cream but purchased it from Keller's Creamery, which was a recognized and approved creamery of the highest standard in the city of San Antonio. Appellant further alleged in detail the manner in which the ice cream was manufactured and delivered to it; that said ice cream was not handled, mixed, or manipulated in any way by the appellant; and that the ice cream was served by the appellant from the original package in which it was delivered to the appellant and was not in any way changed.

Appellant further answered that the premises upon which the ice cream was served were maintained in the most sanitary and wholesome manner, in that both Keller's factory and the lunch counter of the appellant were subject to supervision by the health department of the city of San Antonio, and were regularly inspected and approved.

Appellant further answered that it used reasonable and ordinary care in the purchase of said ice cream from a responsible manufacturer; that it used reasonable and ordinary care in keeping said ice cream from the time it was delivered to it until it was served to appellee; that if said ice cream contained any harmful or deleterious substance the same could not be detected by appellant by sight, smell, or taste, and that it used reasonable and ordinary care in serving same to the appellee.

Appellant further answering denied the serious nature of the injuries claimed to have been suffered by appellee, and expressly denied that appellee had suffered any injuries of a permanent nature.

At the close of the plaintiffs' evidence, and when the evidence as a whole was closed, appellant moved for an instructed verdict in its favor, which motions were refused. The case was then tried to a jury upon special issues, in answer to which the jury found (a) that appellant prepared and sold to appellee Zell Ferguson, for immediate consumption as food, an ice cream soda containing ice cream which contained harmful and deleterious ingredients which were injurious to health; (b) that such sale constituted negligence; (c) that such negligence directly caused the injuries to appellee Zell Ferguson alleged by her in her petition; (d) that in purchasing the ice cream soda from appellant, appellee Zell Ferguson relied entirely upon the skill and judgment of appellant to select, prepare, and furnish to her sound and wholesome food; (e) that appellant did not use reasonable care in keeping said ice cream from the time it was delivered to it by Keller's Creamery to the time it was served to her, Zell Ferguson; (f) that appellant did not use reasonable and ordinary care in serving said ice cream to appellee Zell Ferguson; and (g) that appellee Zell Ferguson had suffered damages in the sum of $11,000. Upon these findings, judgment was rendered in favor of appellees for $11,000. Motion for a new trial was overruled, and appellant brings this appeal.

Appellant presents and urges many assignments of error against the judgment as reasons why said judgment should be reversed and rendered in its behalf, and, if not rendered, then reversed and remanded, but we shall discuss only one—the sixth. It reads:

"Sixth Proposition

"A restaurant keeper maintaining a clean and sanitary establishment, regularly inspected and approved by the municipal authorities, which purchases ice cream from a reputable manufacturer, whose plant is regularly inspected and approved by the municipal sanitary authorities, and serves said ice cream from the original container in which it comes, without any change in the same, does not impliedly warrant that same is wholesome and fit for consumption as food and contains no deleterious or injurious substance."

There is no conflict in the evidence necessary to a decision. We find in the record, this agreement:

"It is agreed by all parties to the above styled cause that the following facts are true and correct: `The defendant, S. H. Kress & Company, is, and was upon August 4th, 1928, a corporation duly incorporated, and upon said date said defendant owned and operated a department store on Houston Street, in the business district of San Antonio, Texas; that in said store said defendant maintained and operated a lunch counter and soda fountain where it sold as dealer, food and drinks to the public, at specified prices, set out upon menu cards, each article of food and drink being listed on the menu cards as separate articles at separate and stated prices.

"`On August 4th, 1928, at about twelve o'clock noon, the plaintiff, Zell Ferguson, entered said store of S. H. Kress & Company located on Houston Street, and seated herself at the lunch counter and soda fountain and ordered from the menu card furnished by defendant a vanilla ice cream soda; that the defendant, and its agents, then and there prepared and sold to the plaintiff, for immediate consumption, a vanilla ice cream soda, which she purchased from the defendant, S. H. Kress & Company, and paid therefor to the defendant the sum of money which was listed as the price of said ice cream soda upon said menu. Among the ingredients which were put in said ice cream soda in preparation thereof by defendant were vanilla syrup, flavoring, carbonated water and vanilla ice cream. The ice cream put into said ice cream soda contained deleterious and harmful ingredients, injurious as an article of food; that by reason of consuming said ice cream in said ice cream soda the plaintiff, Zell Ferguson, was very shortly thereafter made sick.'"

We think that the assignment of error, supra, should be overruled and the judgment affirmed for the reason, as we hold, appellant impliedly warranted that the food sold appellee Zell Ferguson was wholesome, contained no deleterious substance, and was fit for consumption. We are aware that on this question the decisions of the courts of the various states are conflicting, but we think that the great weight of modern authority, and the better reasoning, supports our holding. Many, if not most, of the older cases which hold to the contrary, went off on the idea that there had not been a sale of food, but of service in serving the food. The cavil over the question of whether the serving of food amounted to a sale can have no application to the facts of the instant case, for in the agreed facts set out above, it is admitted that appellant, as a retail dealer, prepared and sold to appellee for immediate consumption the vanilla ice cream soda by her ordered and paid for, and that same was by her then and there consumed. The admission further shows and states that appellant, in preparing said ice cream soda, put into same ice cream that contained deleterious and harmful ingredients, injurious as an article of food, and that by reason of consuming same appellee was made sick. Even under the old decisions, a sale by appellant having been conceded, the implied warranty of the wholesomeness of the food sold and its fitness for the use for which it was bought, follows. As supporting our holding of implied warranty, we cite: Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N. E. 407, 408, 5 A. L. R. 1100; Barringer...