Arena v. John P. Squire Co.

• Decision Date: 06 June 1947
• Citation: 73 N.E.2d 836,321 Mass. 423
• Parties: ARENA v. JOHN P. SQUIRE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 423

73 N.E.2d 836

ARENA

v.JOHN P. SQUIRE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 6, 1947.

Exceptions from Superior Court, Suffolk County; Hudson, Judge.

Action of tort by Mary Arena against the John P. Squire Company to recover damages for illness from trichinosis resulting from eating fresh pork shoulder which had been proceessed and sold by defendant, to a retailer from whom plaintiff bought the pork. The plaintiff had a verdict on a count based on negligence, and the defendant brings exceptions.

Exceptions overruled.

Before FIELD, C.J., and QUA, DOLAN, RONAN, and WILKINS, JJ.

W. H. McLaughlin, of Boston, for plaintiff.

H. W. Cole and C. W. O'Brien, both of Boston, for defendant.

RONAN, Justice.

This is an action of tort to recover damages for illness from trichinosis resulting from eating fresh pork shoulder which had been processed and sold by the defendant, a packer, and which was thereafter purchased and sold by the defendant, a packer, and which was thereafter purchased on October 7, 1936, by the plaintiff from a retail dealer. The pork was alleged to have been infested with trichinae or parasitic worms, which breed and multiply when taken into the human system and after getting into the blood stream become lodged and excysted in the muscles. The plaintiff had a verdict upon a count based on negligence. The case is here upon the exceptions of the defendant to the denial of a motion for a directed verdit, to certain rulings on evidence, and to the denial of a motion for a new trial and of a motion to set aside the verdict which was returned after the jury had separated and had then again been given the case for further consideration.

The defendant does not argue that the evidence was not sufficient to warrant findings that the pork was put upon the market by the defendant, that it contained trichinae, that it was purchased by the plaintiff from a retail dealer, and that as result of eating the pork the plaintiff became ill. The defendant contends that the evidence does not show any negligence on its part. It introduced evidence tending to show that a packer is unable to determine with any degree of certainty that the carcass of a hog does not contain trichinae without taking so many specimens as to destroy the carcass as salable food, except in instances where the first specimens show the presence of these parasites; that the presence of the parasites in the specimens does not indicate that they are not present in some other portion of the carcass; that the inspections made under Federal and State regulations do not require any tests for trichinae; that the presence of trichinae cannot be detected by any known practical method of inspection; and that fresh pork is not intended to be eaten raw and, even if it does contain trichinae, it is not unwholesome if properly cooked. Doubtless, the testimony which was introduced by the defendant tends to support these various factual matters relied upon by it, and would justify an expectation on its part that the jury would not find that it was negligent in failing to discover the prosence of the trichinae in the pork which the plaintiff consumed.¹ But there was evidence pointing in another direction. The plaintiff called as an expert one who had practised medicine and surgery for twenty-seven years and had studied trichinosis while at medical school and during his internship at a hospital, and who had observed trichinosis ‘in the hog and in the individual.’ He had made a special study of this disease, and his testimony, which was given in much detail concerning the history of the disease, its cause, nature, characteristics and termination in individual cases, seemingly showed considerable familiarity with the subject even though the instant case was the only one he had met in private practice. He first examined the plaintiff in November, 1945, when he made a clinical diagnosis of trichinosis, and this diagnosis was confirmed by a miscroscopic examination which he caused to be made by another physician of a piece of flesh he had removed from the plaintiff's leg and which showed many trichinae in different forms. It was implicit in the ruling of the judge, admitting the foregoing testimony of the first physician that he found that he was qualified to testify as an expert upon this disease. It was the duty of the presiding judge to determine the qualifications of the witness. His decision being one of fact, it is not to be reversed unless there is no evidence to warrant his conclusion. We cannot say that as matter of law there was a lack of such evidence. Bierce v. Stocking, 11 Gray 174;Hardiman v. Brown, 162 Mass. 585, 39 N.E. 192;Commonwealth v. Bartolini, 299 Mass. 503, 513, 13 N.E.2d 382; Commonwealth v. Capalbo, 308 mass. 376, 380, 32 N.E.2d 225;Commonwealth v. Noxon, 319 Mass. 495, 538, 539, 66 N.E.2d 814;Commonwealth v. Bellino, 320 Mass. 635, 71 N.E.2d 411.

This expert testified that the presence of trichinae in the carcass of a hog could be determined by the microscopic examination of any muscle, that it was not necessary to examine every muscle, and that it would make no difference what muscle was selected for the test. The jury were free to give such weight to this testimony as they deemed appropriate, and there was no error of law if they chose to adopt this testimony as true in preference to that of the defendant's experts. The defendant did not make any test to ascertain the presence of trichinae. The jury could find that in preparing the fresh pork and putting it upon the market the defendant failed to exercise a reasonable degree of care in order that the health of the consumer would not be impaired by eating the pork. The negligence of the defendant was properly left to the jury.²

The plaintiff urges that negligence of the defendant may also be predicated upon violation of G.L.(Ter.Ed), c. 94, § 150, which imposes a penalty upon one who sells any product of a diseased animal or any tainted, diseased or unwholesome meat, without disclosing its condition to the buyer, except where the article is packed in a container so that its condition cannot be ascertained by a reasonable inspection. This statute has been construed and applied in various decisions of the court, Schuler v. Union News Co., 295 Mass. 350, 4 N.E.2d 465;Mellace v. John P. Squire Co., 306 Mass. 515, 29 N.E.2d 26;Flynn v. Growers Outlet, Inc., 307 Mass. 373, 30 N.E.2d 250;Commonwealth v. Economy Grocery Stores Corp., 313 Mass. 70, 46 N.E.2d 521, while in other decisions we have said that its application to the particular facts presented was doubtful, Flynn v. First National Stores, Inc., 296 Mass. 521, 524, 6 N.E.2d 814, and in other decisions, where negligence was made out at common law, it became unnecessary to decide whether liability might also be established under the statute. We think that is proper course to adopt here. Flynn v. First National Stores, Inc., 296 Mass. 521, 6 N.E.2d 814;Bergantino v. General Baking Co., 298 Mass. 106, 108, 9 N.E.2d 521. In passing it might be said that there is a conflict of authority in other jurisdictions as to whether statutes similar to our own should be applied to pork infested with trichinae, which is not unwholesome when properly cooked, where the evidence showed that the seller could not be charged with knowledge of the presence of trichinae.³

The plaintiff prior to the purchase of the pork had lived in this country for four months. There is nothing to show that she knew that by subjecting the pork to a heat of one hundred thirty-seven degrees Fahrenheit any live trichinae would be killed. She had cooked pork a few times before. She ‘had always cooked meals and run a house and * * * she could cook everything.’ She testified as to the manner in which she cooked the patties from meat cut from the fresh shoulder, the method she employed in roasting the remainder of the fresh shoulder, and the tests she made from time to time to ascertain whether the patties and the shoulder were sufficiently cooked. The patties were fried in oil until they were brown on the inside, and the shoulder was roasted for more than two hours in an oven at which she set the heat at four hundred degrees. The jury could find that she cooked the pork as thoroughly as could be reasonably expected, and that she was not contributorily...