Boylston v. Armour & Co.
| Decision Date | 23 December 1940 |
| Docket Number | 15171. |
| Citation | 12 S.E.2d 34,196 S.C. 1 |
| Parties | BOYLSTON v. ARMOUR & CO. |
| Court | South Carolina Supreme Court |
Douglas McKay and J. B. McCutcheon, Jr., both of Columbia, and Harley & Harley, of Barnwell, for appellant.
Edgar A. Brown, of Barnwell, and C. T. Graydon, John Grimball, and Paul A. Cooper, all of Columbia, for respondent.
Respondent was awarded a verdict in the sum of Eighteen Hundred Dollars actual damages, the trial judge having instructed against punitive damages, by a jury in the Richland County Court against Armour & Company, a corporation of Illinois, and from the judgment entered thereon this appeal was taken.
In the complaint it was alleged that respondent on March 17, 1937 partook in the Dixie Cafe in the town of Blackville, South Carolina, of a serving of ham which turned out to have been labeled "Armour Star Ham", in the preparation packing and sale of which appellant is engaged and advertises and warrants this product as being superior food for human consumption, but that in fact the portion eaten by respondent was impure and contained deleterious matter which caused respondent to become violently and painfully ill, confining him to bed and resulting in expenditures for medical bills and that such injury and damage were caused "by the ham produced by the defendant being unfit for human consumption as it was advertised, warranted, and represented and that thereby the defendant violated the Pure Food and Drug Acts of the United States of America and the State of South Carolina 21 U.S.C.A. § 1 et seq.; Code 1932, § 1452, and the conduct of the defendant in preparing, producing, packing, and offering for sale the said ham as aforesaid was negligent, reckless, wilful, and wanton", to respondent's damage in the sum of Three Thousand Dollars. The answer was a general denial. When the case was reached for trial appellant asked the court to require an election by respondent as to whether he was proceeding under the "Pure Food Statute of South Carolina or the Pure Food Statute of the United States", but the court reserved decision which was made in effect at the conclusion of respondent's testimony when it was held that there had been no proof of the Federal Statute so it was not involved and the issues were confined to the alleged common law negligence and violation of the State law, which latter the jury were instructed would constitute, if found, negligence per se. Incidentally, it was not necessary to prove the Federal Act but there was no objection to the ruling thereabout, emphasized above.
Timely motions for nonsuit, directed verdict and for a new trial, were made and refused, except as to punitive damages. The grounds for these motions were sufficiently inclusive to support the questions argued by appellant's counsel and were preserved for consideration here by proper exceptions. It is, therefore, necessary that the evidence be briefly reviewed and, in view of the nature of the questions involved, it may be done in the most favorable light to the respondent.
The ham was purchased in Blackville in the usual wrappings of a cured Armour ham, including an attached tag "Armour & Company, Chicago, Illinois", and the ham and the container bore the imprint "Armour & Company", by the cafe proprietor from an itinerant merchant who made delivery from a refrigerator truck; he was a customer of Armour & Company in Augusta, Georgia, just across the boundary river from this State and near Blackville. Upon the delivery of the ham it was, after unpacking and unwrapping, placed in the cafe refrigerator, taken therefrom the next morning by the cook and baked in the usual meat cooking utensil, thereafter allowed to cool for an hour or so and again placed in the refrigerator. On the next morning it was removed to a serving table and used in the service of customers, covered in the meantime by a cloth netting. Several patrons who ate of it, all such so far as the record shows, became sick and upon examination it was found to be in part discolored and somewhat soft. Upon hearing of the illness of his customers who had eaten of it, the proprietor rewrapped the ham and again placed it in his refrigerator, thereafter removing it for the County health officer to cut into and further examine it, which was done in the office of a local physician in the presence of several witnesses, resulting in the discovery of the condition mentioned.
Sometime later a traveling salesman of Armour & Company from Augusta, the appellant's witness Cowan, took it with the stated purpose of having the Company analyze it, but it was not returned and the proprietor testified that no report was made upon it. Meanwhile the ham had been sent to the State Board of Health in Columbia and to Clemson College in unsuccessful efforts to obtain an analysis of it at one of these places.
The purchase by the cafe from the itinerant was because of an emergency need; ordinarily it was supplied with such hams by shipment from Augusta on an Armour truck. The cafe was a cleanly one, regularly inspected and well rated by public health authorities. Respondent, who is County Farm Demonstration Agent, ate at the cafe at about one P. M., besides the ham, two vegetables, bread and coffee, and immediately drove by automobile to Columbia on business, after the conclusion of which in about an hour or an hour and a half he first became ill. A friend with him thereafter did the driving and after delays and interruptions on account of his sickness they returned to Blackville where respondent placed himself in the care of a physician who rendered emergency treatment, keeping him at his office for an hour or so, after which he was taken home by the doctor and placed in the charge of his family physician. There was medical testimony to a diagnosis and treatment of severe food-poisoning.
The testimony establishes that respondent was violently and seriously ill for several days, after which he unsuccessfully attempted to resume his business duties and was thereafter incapacitated from time to time aggregating several weeks and was not fully recovered at the time of the trial. Other witnesses similarly affected, apparently to a lesser degree, after eating of the same ham, testified; all seemed to have had the same sorts of symptoms and all vomited the ham. The other customers of the cafe that day who did not eat ham were not so affected.
For the appellant, the manager of the Augusta plant testified that it was a branch of Armour & Company, a corporation of Delaware; it receives hams from the Company's killing plants at Kansas City, Omaha and Tifton, Ga., processes and finally packs them under the supervision and inspection of technical representatives of the United States government. Thereafter they are held in refrigeration until sold. The itinerant from whom the ham here in question was purchased by the Dixie Cafe has no connection with Armour & Company other than that he has been purchasing hams from the Augusta plant for about five and one-half years and peddling them by motor truck through Georgia and South Carolina. Their traveling salesman, Mr. Cowan, covers as a part of his territory Barnwell County, South Carolina, including Blackville. No hams come into the Augusta plant which do not bear the Federal government inspection symbol and all processed are similarly marked. The Superintendent of the Kansas City plant, which alone had been supplying the Augusta plant about the time of this incident, testified as to its operation and the Government inspection of meat animals before and after slaughter and further that there is nothing unusual in "bluish-greenish coloring", but such is common in hams.
A Federal government inspector testified that he was stationed at the Armour Kansas City plant from October, 1936, to August, 1937, being supervisor in charge of all inspectors detailed to that plant. He described the ante- mortem inspection of the animals, the killing and post-mortem inspection, etc., for the purpose of finding the product free from disease, sound in health and fit for human food. Defective meats which would probably produce sickness upon consumption are condemned but if a defective animal or portion should by chance escape the inspectors it could bring about sickness after consumption.
The assistant chief chemist and bacteriologist of Armour & Company in Chicago testified generally as to organisms capable of causing food-poisoning and particularly as to his examination of the remainder of the ham here in question...
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