Baum v. Murray

• Decision Date: 25 October 1945
• Docket Number: 29673.
• Citation: 162 P.2d 801,23 Wn.2d 890
• Parties: BAUM et al. v. MURRAY.
• Court: Washington Supreme Court

162 P.2d 801

23 Wn.2d 890

BAUM et al. v. MURRAY.

No. 29673.

Supreme Court of Washington

October 25, 1945

Rehearing Denied Dec. 6, 1945.

Department 2.

Action by Dagobert Baum and others against Hazel Murray, doing business as Pure Food Market, for damages alleged to have been sustained because of consumption of sausage sold by defendant. From a judgment for plaintiffs, the defendant appeals and the plaintiffs cross-appeal.

Appeal from Superior Court, King County; Donald A. McDonald, judge.

Ballinger, Hutson & Boldt, of Seattle, for appellant.

Monheimer Schermer & Mifflin, of Seattle, for respondents.

GRADY Justice.

This action was commenced by respondents against appellant and a party whose identity was unknown to recover a judgment for damages alleged to have been sustained because of consumption of sausage sold by appellant. The case was tried Before a jury resulting in a verdict for respondents. Motions for a judgment notwithstanding the verdict and for a new trial were made by appellant and denied by the court, and from the judgment entered on the verdict this appeal has been taken. The respondents have taken a cross appeal from the judgment.

The theory of the complaint was that appellant, a retail dealer in food for human consumption, and the manufacturer of the sausage, whose name and identity were alleged to be unknown to the respondents, were negligent in the preparation presentation and sale of it, and warranted it was fit for human consumption and was properly prepared so that consumption thereof would not produce disease. The answer of appellant admitted certain allegations of the complaint denied others and disclosed that the sausage referred to was made by her employees.

The factual situation so far as we deem necessary to consider is substantially as follows:

On or about September 24, 1942, respondent Gertrud Baum purchased from appellant a small quantity of sausage encased in sausage skin and designated as German Mettwurst, the chief ingredient of which was cooked pork. About the same date respondent, Margaret Lindsey, bought from appellant a small quantity of the same kind of sausage. Some days after eating the sausage all of the respondents became ill and summoned and received medical aid. The physicians who examined and treated the respective parties diagnosed their illness as trichinosis which is a parasitic infection of the human body that may occur after eating pork meat.

On January 15, 1943, an attorney representing respondents called upon appellant and informed her that he represented two families, members of which had become ill from eating sausage purchased from her. The appellant was not informed as to who the parties were or where they resided, and it is not clear whether the date of the purchases was given, or whether she made any inquiry with reference thereto. On January 18th the attorney and respondent Baum called upon appellant in order that Mr. Baum might identify the kind of sausage purchased. On one of these occasions the attorney informed appellant a suit for damages was contemplated. Respondents Lindsey admitted in their testimony that they never contacted appellant, and her testimony was that the first time she knew the names of the parties to whom the attorney referred, other than Mr. Baum, was when she was served with summons and complaint in the action April 24, 1943.

The first question to be determined is the theory upon which the case was tried and must be considered upon this appeal. The complaint is broad enough to base liability upon negligence of the manufacturer and breach of implied warranty of wholesomeness of food sold for human consumption on the part of both the manufacturer and the retailer of the food under the rules pronounced by this court in Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633, 48 L.R.A., N.S., 213, Ann.Cas.1915C, 140; Flessher v. Carstens Packing Co., 93 Wash. 48, 160 P. 14; Nelson v. West Coast Dairy Co., 5 Wash.2d 284, 105 P.2d 76, 130 A.L.R. 606; and Geisness v. Scow Bay Packing Co., Inc., 16 Wash.2d 1, 132 P.2d 740.

Throughout the trial the appellant contended that liability, if any, must be founded upon an implied warranty as provided by section 15, subdivision 1 and 2 of the Uniform Sales Act, Rem.Rev.Stat. § 5836-15, but by reason of the failure of respondents to comply with section 49 of the Act, Rem.Rev.Stat. § 5836-49, they could not recover damages. Those sections are as follows:

'§ 5836-15. Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

'(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.

'(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.'

'§ 5836-49. In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty, within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor.'

We shall later refer to them for convenience as section 15(1), (2) and section 49.

During the progress of the trial when an objection made by counsel for respondents was being considered, and in response to an inquiry by the trial judge, counsel stated that respondents were predicating liability both upon negligence and warranty, but at a later stage when the admissibility of certain testimony was being discussed between the court and counsel the trial judge said:

'There are just two questions for the jury here: Did these plaintiffs suffer from trichina, or trichinosis? And if they answer that in the affirmative, did they acquire it from this meat that they bought from the defendant. That's all I can see in this case.'

Mr. Schermer (counsel for respondents): 'That's right. It narrows it down.'

The parties from then on proceeded upon the theory of implied warranty, but respondents did not at any time concede the sales act furnished an exclusive remedy. The instructions of the court presented the case to the jury upon the theory of breach of implied warranty, except in one instruction it was stated that a consumer of food had the right to recover from the seller for breach of implied warranty 'or for negligence,' but no further reference was made to the subject of negligence in the instructions.

By appropriate motions appellant challenged the sufficiency of the evidence, both factual and legal, to establish liability on her part. After the return of the verdict appellant moved for a judgment notwithstanding the verdict and in the alternative for a new trial. The court overruled the motions. The appellant, in her brief, states that she does not assign error upon the overruling of her motion for a new trial.

The testimony on the part of appellant tended to show that the sausage was properly prepared and heated to a degree that would destroy any trichinae which might have been in the pork used in making the sausage. The testimony of the physicians called by appellant indicated that they were of the opinion that in view of the time that elapsed between eating the sausage by respondents and their illness was such as to negative the idea that the sausage was the cause thereof, and that their symptoms did not disclose that they suffered from trichinois. The physicians had no contact with respondents while they were ill. As opposed to those theories the physicians who treated respondents and diagnosed their cases were of the opinion that they were suffering from trichinosis and that their illness was caused by the pork in the sausage containing trichinae. Our examination of the record convinces us that the jury was justified in accepting the testimony given by respondents and their witnesses and in rendering a verdict in their favor. Johnson v. Kanavos, 296 Mass. 373, 6 N.E.2d 434.

In view of the fact that this action was considered by the trial court upon the theory of implied warranty and the rules of law relative thereto as pronounced by our cases above cited, and that appellant contends that the rights and obligations of the parties must be measured by the sales act, we are now called upon to decide whether cases of this kind involving articles manufactured and sold for human consumption in which it is claimed there has been a breach of an implied warranty of fitness for purpose or merchantable quality shall be governed by our decided cases on the subject or by the sales act, although in food cases the same result would generally be reached.

The sales act has been recognized as being, in the main, a codification of the common law, but somewhat enlarging the liability of a seller and in turn affording him certain protection not given by the common law. An examination of our cases decided since the adoption of the act in 1925 leads us to the conclusion that so far as applicable it has been our rule of decision with the exception of the food cases. The Mazetti and Flessher cases were decided prior to ...