Armour & Co. v. Leasure
Decision Date | 29 November 1939 |
Docket Number | 65. |
Citation | 9 A.2d 572,177 Md. 393 |
Parties | ARMOUR & CO. v. LEASURE. |
Court | Maryland Court of Appeals |
Appeal from Circuit Court, Allegany County; D. Lindley Sloan, Judge.
Action by Olive R. Leasure against Armour & Co., a corporation, for illness alleged to have been caused by eating a part of a can of corned beef prepared by defendant company. From judgment for the plaintiff, the defendant appeals.
Affirmed.
William C. Walsh and W. Earle Cobey, both of Cumberland, for appellant.
Lewis M. Wilson, of Cumberland (Finley C. Hendrickson, of Cumberland, on the brief), for appellee.
Argued before BOND, C.J., and OFFUTT, PARKE, MITCHELL, SHEHAN JOHNSON, and DELAPLAINE, JJ.
Olive R. Leasure, the appellee in this case, became seriously ill a short time after eating a part of the contents of a can of corned beef which she had purchased from a grocery store in Cumberland, Maryland. The can bore on its label the following representations:
On the theory that her illness was as a result of defendant's negligence caused by some toxic substance in the corned beef which made it unwholesome, appellee brought this action against Armour & Company, a corporation, the appellant, to recover compensation for the loss and injury which she suffered as a result of her illness. The trial resulted in a verdict and judgment for the plaintiff, and this appeal is from that judgment.
There are three exceptions in the record, one, the first deals with a question of evidence, the other two deal with the rulings on the prayers.
The appellant offered nine prayers, all of which were refused. Each of those prayers sought a directed verdict for the defendant on one or more of several theories, all of which can be considered in connection with the refusal of its general demurrer or 'A' prayer.
In dealing with the question raised by the refusal of that prayer it may be said by way of premise, that the burden of proof was upon the plaintiff to show by legally sufficient evidence that she purchased the can of corned beef from a store keeper in reliance upon the representation of the defendant express or implied that it was edible and wholesome, that the defendant had mediately or immediately sold or delivered the food to the storekeeper for resale in the original package, that it was unwholesome and poisonous, that its toxic quality resulted from the failure of the manufacturer to exercise ordinary care in the manufacture or inspection of the same and was the proximate cause of appellee's illness.
On the other hand it must be assumed that all evidence tending to support the appellee's claim, and all inferences reasonably deducible therefrom are true, and, in the absence of any variance prayer, the right of the appellee to recover depends upon the evidence irrespective of the pleadings, Richardson v. Anderson, 109 Md. 641, 651, 72 A. 485, 25 L.R.A.,N.S., 393, 130 Am.St.Rep. 543; Great Atlantic & Pacific Tea Co. v. Roch, 160 Md. 189, 192, 153 A. 22; Toy v. Atlantic Gulf & Pacific Co., Md., 4 A.2d 757, 767, for as stated by Judge McSherry for this court: West Virginia Cent. & P. R. Co. v. Fuller, 96 Md. 652, 669, 54 A. 669, 61 L.R.A. 574.
The evidence in the case tended to prove the facts stated in the following narrative:
On May 25th 1937, the appellee who was living with her mother, a brother and a sister at 537 Columbia Avenue in Cumberland, Maryland, purchased from the Atlantic & Pacific Tea Company store a can of corned beef which was delivered to her home at about four thirty o'clock in the afternoon of that day. An hour later in preparing the evening meal she opened the can, cut off a slice of the beef, placed it on a piece of bread and ate it. For the meal she prepared the corned beef, scalloped potatoes and sliced fresh pineapple. The corned beef she served as it came from the can, the potatoes she sliced very thin and baked for a half an hour, and she sliced the pineapple thin and put sugar on it. She ate another slice of the corned beef at supper, and her brother and sister also ate part of it, but her mother who was ill ate none. One slice was left from the supper and that she put away. They had supper at six o'clock and the corned beef was then in the same condition as when the can was opened. When she opened it she poured its contents on a plate which she placed on the supper table, and at that time she noticed nothing 'whatever as to its color or anything like that'. At about 8.25 something over two hours later Miss Leasure, her brother and her sister all became violently ill. Mrs. Leasure, the mother, called in Dr. W. F. Williams. Dr. Williams found Miss Olive Leasure, the appellee, in a critical condition, pale, cold, unconscious, with a weak thready pulse, vomitting and suffering also from diarrhea, and in need of hospitalization. He decided to take all three of them to the hospital, but Olive's condition was so serious that he was afraid to move her at once, but she was taken to the hospital after the other two had been taken there. She remained at the hospital until May 28th when she was discharged, but she continued to suffer from 'the ill effects' of the attack of illness for several months after that, and her health has never been as good as it was before she became ill.
On the day she became ill Miss Leasure had eaten toast, eggs and coffee for breakfast, and hot cakes, syrup and coffee for luncheon, and had eaten no meat other than the corned beef either on that day or on the preceding day.
From the history of the case, from her condition when he saw her at her home, and her condition while at the hospital Dr. Williams diagnosed her illness as botulism. Botulism is defined in the American Illustrated Medical Dictionary (1937) p. 222, as,
The corned beef which Miss Leasure ate was manufactured by the Armour of Brazil Corporation, Sant'Anna do Livramento, Rio Grande do Sul, Brazil and by it sold, and as part of a shipment of thirty two thousand cases of twenty four cans each, shipped by the steamer Pan America, to Armour & Company of Illinois, at New York, early in 1937. It was transshipped by the defendant from New York to one of its branches at Altoona, Pennsylvania, and after that defendant sold nine hundred cases of that shipment, including the particular can sold to Miss Leasure, to the Great Atlantic & Pacific Tea Company, and on May 13th 1937 the case containing that can was delivered to that company's retail store in Cumberland where the particular can under consideration was sold and delivered to Miss Leasure.
John J. O'Connor, manager of defendant's foreign accounting and import department, said: 'Whenever my company makes an offer to the Brazil corporation, it is understood that the Armour label marked ...
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