Armour & Co. v. McMillain

• Decision Date: 05 June 1934
• Docket Number: 31207
• Citation: 155 So. 218,171 Miss. 199
• Parties: ARMOUR & CO. v. MCMILLAIN
• Court: Mississippi Supreme Court

155 So. 218

171 Miss. 199

ARMOUR & CO. v. MCMILLAIN

No. 31207

Supreme Court of Mississippi

June 5, 1934

Division A

Suggestion Of Error Overruled October 1, 1934.

APPEAL from the circuit court of Scott county HON. D. M. ANDERSON Judge.

Action by Eula B. McMillain against Armour & Co. From a judgment for plaintiff, defendant appeals. Affirmed, with remittitur.

Affirmed with remittitur.

W. C. Kirk, of Chicago, Illinois, and Wilbourn, Miller & Wilbourn, of Meridian, for appellant.

F. F. Mize and J. O. Eastland, both of Forest, and Mize, Thompson & Mize, of Gulfport, for appellee.

Briefs of counsel not found.

Argued orally by C. C. Miller, for appellant, and by S. C. Mize, for appellee.

OPINION

Cook, J.

Appellee instituted this suit against Armour & Company seeking to recover damages for illness and continued ill health alleged to have resulted from eating poisoned sausage manufactured and packed by appellant. The suit was for the sum of two thousand nine hundred ninety-nine dollars and ninety-nine cents, and the verdict returned was for that exact amount.

The appellant is engaged in packing and selling meats, including sausage. On June 19, 1933, it sold and delivered a fifty-pound sealed tin can containing sausage packed in oil to a wholesale grocer in Forest, Mississippi, who in turn sold it to a retail dealer, and delivered it at his place of business between three and five o'clock on June 21, 1933. When the retail dealer received the can, he, or his assistant, cut off the top of the can with an ordinary can opener, which was used in the store and in an adjoining kitchen. On removing the top of the can, the dealer covered it with a tin top which the appellant had forwarded with the can for that purpose, and placed the can on a counter in the store. In taking the sausage from the can, the wife or stepdaughter of the dealer, who usually waited upon the customers, either used their hands or a silver or other metal fork. Neither the can opener nor this fork was so handled as to exclude the probability of bacterial infection that would cause meats to become unwholesome for human consumption.

The evidence for the appellee was to the effect that about six o'clock P. M. on June 21, 1933, within about one hour after the can was first opened, the father of the appellee purchased five pounds of the sausage. This sausage was taken from the can with a silver fork used in the store, and was placed in a tin molasses can and covered with oil, which was dipped from the original can with a cup. The father of the appellee then carried the sausage to his home about five miles away, and about six-thirty P. M. the appellee and several others of the family ate some of it without cooking it. About an hour later the appellee became very sick. Other members of the family who had eaten some of the sausage became ill about the same time, but they recovered within a few hours. The appellee continued ill for several days before she consulted a physician. When the appellee had recovered sufficiently to travel, she visited a physician who prescribed for her and treated her on several occasions thereafter. This physician testified that when she first consulted him, she was suffering from indigestion and other stomach disorders which, in his opinion, were caused from acute botulism, or other food poison taken into the...