Campbell v. G. C. Murphy Co.

• Decision Date: 10 July 1936
• Docket Number: 100-1936
• Citation: 186 A. 269,122 Pa.Super. 342
• Parties: Campbell et al. v. G. C. Murphy Company, Appellant
• Court: Pennsylvania Superior Court

186 A. 269

122 Pa.Super. 342

Campbell et al. v. G. C. Murphy Company, Appellant

No. 100-1936

Superior Court of Pennsylvania

July 10, 1936

Argued April 23, 1936

Appeal by defendant, from judgment of C. P., Allegheny Co., April T., 1932, No. 784, in case of Amanda Campbell et al. v. G. C Murphy Company.

Trespass. Before T. M. Marshall, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for wife plaintiff in the sum of $ 1,000 directed verdict for defendant as to husband plaintiff and judgment thereon. Defendant appealed.

Errors assigned, among others, were refusal of judgment n. o. v. for defendant as to wife plaintiff and of motion for new trial.

Judgment reversed and new trial granted.

A. W. Henderson, with him Lawrence D. Blair and Moorhead & Knox, for appellant.

Harry A. Estep, with him James T. Philpott, for appellees.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Stadtfeld, J.

This was an action in trespass to recover damages for alleged food poisoning. The only pleading in the case is the plaintiff's statement of claim, which alleged negligence on the part of defendant in the sale and service to plaintiff, of unwholesome "minced chicken salad sandwiches."

On August 26, 1931, the woman plaintiff, Amanda Campbell, ate lunch in the restaurant of defendant company's store on Fifth Avenue, Pittsburgh, Pennsylvania. The plaintiff and her sister, who accompanied her, ate chicken salad sandwiches with coffee and ice cream and plaintiff ate some tomatoes her sister had ordered. Within an hour she became nauseated and later was found to be suffering from ptomaine poisoning.

Plaintiff produced no evidence of any foreign substance in the food she had eaten and there was nothing about its taste or appearance to indicate that it was unwholesome.

The case was tried before the court and a jury, and submitted to the jury on the issue of the defendant's negligence. The jury returned a verdict in the sum of $ 1,000 in favor of Amanda Campbell, the woman plaintiff, and, under the instruction of the court, in favor of the defendant as to John T. Campbell, who had died before the trial.

Defendant thereupon moved for judgment non obstante veredicto and for a new trial. After argument before the court in banc, both motions were overruled in an opinion by Marshall, T. M., J., and judgment was entered upon the verdict. Defendant thereupon took this appeal.

The assignments of error are to the refusal of binding instructions, the refusal of motion for judgment non obstante veredicto, the admission of certain testimony over objection ex parte defendant, and the refusal of motion for new trial.

Plaintiff testified that she, accompanied by her sister, Mrs. Evans, left her home in Mt. Washington between 10:30 and 11:00 o'clock A. M. on August 26, 1931, to go downtown. They entered the defendant's store between 1:30 and 2:00 o'clock P. M. and decided to have lunch there. The plaintiff had a chicken salad sandwich and coffee and her sister had the same. She noticed nothing about the sandwich. Plaintiff also ate some lettuce and tomato salad that her sister had ordered, and plain vanilla ice cream. Plaintiff admitted that the chicken salad tasted all right, as did the lettuce and tomato salad and the ice cream, and that, as far as she knew at the time she ate the food, there was no odor about it, nor anything that would indicate any trouble with the food. Prior to going to defendant's store, the only thing she had partaken of that day, was a cup of coffee. After she left the store, she did not feel so very well and about 2:30 or 3:00 o'clock P. M. went home. She went to her neighbor's and told her she was sick, and there became actively sick and was taken home, whereupon a doctor was called and he arrived about 5:00 o'clock P. M.

Dr. Joseph A. Soffel, who attended the plaintiff, testified that he diagnosed the case as food poisoning or ptomaine poisoning. He made no examination of the contents of the stomach, and testified that the plaintiff must have eaten contaminated or impure food, in view of her condition. Her sister became ill almost simultaneously and suffered in like manner.

The principles governing, and the responsibility of restaurant keepers in the furnishing of food to their customers, are discussed in a well considered opinion by our Brother Baldrige in West v. Katsafanas, 107 Pa.Super. 118, 162 A. 685, wherein the authorities are reviewed. That action was an action of assumpsit against a restaurant keeper to recover damages for a breach of implied warranty. The testimony established that the plaintiff ordered from the defendant, certain food, including a sandwich, and while eating the latter, he became ill. He stated that the sandwich was not palatable and after eating a part of it -- he suffered from poisoning. This court held that the transaction between the plaintiff and defendant involved a sale and the restaurant keeper impliedly warranted that the food was fit for human consumption, and that when the plaintiff suffered injury, which was the natural and direct result of eating the contaminated food purchased from the defendant, he was entitled to recover damages for breach of the warranty. Quoting from the opinion in that case, p. 123: "The law places an obligation upon the seller to see that the articles are fit for the purposes for which they are intended. There can be no doubt, of course, that the food purchased was to be consumed. This places a heavy burden upon the vendor of food; but public policy, as well as public health, demands that great care be exercised by one who has the opportunity of examining and knowing the quality of food sold, which the purchaser may not determine. If the food is unfit for consumption, and damages result therefrom, they ought to be placed, not upon one who has had no opportunity of determining its condition, but rather upon the one who has had means of informing himself of the condition of the food. The Sales Act of May 19, 1915, P. L. 543, 563, provides as follows: 'Sixth: The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.' Consequential damages have been frequently recovered for breach of implied warranty: Griffin v. Metal Product Co., 264 Pa. 254, 107 A. 713; Rex Auto Exchange v. Hoffman, 84 Pa.Super. 369; Budd v. Mutchler, 98 Pa.Super. 420. Professor Williston, in his treatise on Sales, 2d ed., vol. 2, sec. 614, stated that 'Unwholesome food sold to human beings under an expressed or implied contract . . . . subjects the seller to responsibility for the consequences.'"

Likewise, in 26 C. J. 76, sec. 95, it is said: ". . . . And it has been held that a seller of food, at a public eating place, to be consumed on the premises, is presumed to know of any unwholesome condition of the food and is liable for damages to a purchaser who is made ill on account of such unwholesomeness."

While the action in the instant case was in trespass, the responsibility of the defendant in either case is the same. The...