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

9 A.2d 572

177 Md. 393

ARMOUR & CO. v. LEASURE.

No. 65.

Court of Appeals of Maryland

November 29, 1939

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.

OFFUTT Judge.

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 front and back of the label there appears a dish which contains what appears to be a picture of slices of Corned Beef, and there is also contained on the dish a picture of lettuce, pickles and olives. The reading matter on the label is as follows: (Front and Back) Armour's Star * Trade Mark famous flavor! Corned Beef 12 ozs net Wt. Made in Brazil Packed for Armour and Company--Chicago, Ill., U.S.A. (Side) Armour's Star * Quality Corned Beef For Corned Beef Hash: Mix 1 can chopped Corned Beef 3 cups chopped cooked potatoes 1 small minced onion, 1/2 teaspoon salt, 1/8 teaspoon pepper, 2 tablespoons Star Bacon drippings and sufficient milk to moisten. Place in a covered dish bake 15 minutes in a moderate oven, 350 F. Remove cover and continue baking 15 minutes or until brown. Serves 6 average portions. 340 G R M NETO For Sandwiches: This package contains enough Corned Beef, when sliced into 1/8 inch slices, to make 12 delicious sandwiches. Place between slices of bread spread with Cloverbloom Butter and mayonnaise dressing. (Side) Armour's Star * Quality Corned Beef The name 'Armour's Star' is your guarantee of purity and wholesomeness. To open--attach key and turn right. Remove the contents whole. Wrap unused portion in waxed paper and keep in a cool place. To slice cold chill contents thoroughly before opening. Frigorifico Armour Livramento Brazil Ready to Serve Recommended Serial No. *4413 By the Bureau of Foods Sanitation and Health Good Housekeeping Magazine. The following code marks appear on top of the twelve ounce cans packed by us here: In a circle--the letters BRASIL 7 SIF and just to the left of the circle the letter P, and on the bottom of the container the following letters and numerals: P 1.'

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: 'On demurrer, judgment was given for the plaintiff, on the ground, that, though a man may do a lawful thing, yet, if any damage thereby befall another, he shall be answerable if he could have avoided it. Broom's Leg. Max., 161, and cases there cited. It is true these last cases were in trespass and the declaration now before us is in case. But the prayers at present under consideration are demurrers to the evidence and make no reference to the pleadings; hence the right to recover depends not upon the form of the action or the state of the pleadings, but solely upon the case made by the proof. Baltimore Bldg. Ass'n v. Grant, 41 Md. 560, 569; Leopard v. Chesapeake & O. Canal Co. 1 Gill, 222.' 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, 'A type of food poisoning caused by a toxin which is produced by Clostridium (Bacillus) botulinum in improperly canned or preserved foods. It is characterized by vomitting, abdominal pain, difficulty of vision, nervous symptoms of central origin, disturbances of secretion, motor disturbances, dryness of the mouth and pharynx, dyspepsia, a barking cough, mydriasis, ptosis, etc. The term was formerly used synonymously with allantiasis or sausage poisoning.'

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 'Packed for Armour and Company, Chicago, Illinois' shall be placed on the cans. This label is the customary label placed on our products. It...