Barringer v. Ocean S.S. Co. of Savannah

• Decision Date: 01 March 1922
• Citation: Barringer v. Ocean S.S. Co. of Savannah, 240 Mass. 405, 134 N.E. 265 (Mass. 1922)
• Parties: BARRINGER v. OCEAN S. S. CO. OF SAVANNAH.
• Court: Supreme Judicial Court of Massachusetts

240 Mass. 405

134 N.E. 265

BARRINGER

v.OCEAN S. S. CO. OF SAVANNAH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1922.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Action by Edwin C. Barringer against the Ocean Steamship Company of Savannah. Finding for plaintiff, and defendant brings exceptions. Exceptions overruled.

The action was in tort, later amended into one of contract or tort, and was tried by the court without a jury. Plaintiff claimed to have been violently sick during the night after he reached home from a trip on defendant's steamer, and claimed that it was due to unwholesome food eaten on board the steamer, and that he had never gotten over the effects of his illness. Defendant moved on the pleadings and on the evidence for a finding in its favor, but the court denied the motion and entered a finding for plaintiff for $800.

Winfield S. Patterson, of Boston, for plaintiff.

Arthur H. Russell, of Boston, for defendant.

CARROLL, J.

The plaintiff was a passenger on a vessel owned and operated by the defendant which left Savannah June 17, 1915, and arrived in Boston about 7 o'clock in the evening of June 20. The action is in contract, the plaintiff alleging that food was served by the defendant and eaten by the plaintiff which was unwholesome and ‘contained foreign matter’ and was ‘otherwise unfit to be eaten, whereby the plaintiff * * * was injured and made sick.’ At the close of the evidence the defendant moved that a finding be entered in its favor. This motion was denied. The judge, sitting without a jury, found for the plaintiff, and the defendant excepted.

There was evidence that the plaintiff ate his supper about 6 o'clock on the night of June 17; that the next morning he had no breakfast and was seasick; that during the rest of the voyage he was in good health, and after the first morning on shipboard was able to ‘go down and take meals'; that Sunday, June 20, about 5 o'clock, he had lunch or supper; that he thought soup was served, did not recall whether he ate fruit or dessert, but remembered eating some cold meat which ‘didn't taste very good to [him]’; that he remained on the boat until about 15 minutes after 7 o'clock that evening, when he proceededto the elevated station and thence to his room; that he went to the theater in the evening and to a café with a friend, and about 12 o'clock went to bed; that he had eaten or drunk nothing after he departed from the boat, but had been smoking during the evening; that about 4 o'clock the next morning he was suffering from cramps, was covered with perspiration, and was in pain due to great distress in his intestines; that he did not recall anything until some time after 8 o'clock in the morning, when ‘he was conscious that the landlady was holding his head and that he was vomiting and that there was a doctor in the room’; that the doctor attended him twice a day for five days; that he had a high temperature, could not retain food, and suffered with cramps. He testified that he had never before this suffered from indigestion.

The doctor who attended the plaintiff was dead at the time of the trial; but a physician testified that, from the plaintiff's story and what he had heard on the witness stand, the plaintiff presented to him ‘a classical picture of food poisoning; that the term ‘ptomaine poisoning’ was not now used; that the incubation period for food poisoning was from 8 to 20...