Canton Provision Co. v. Gauder

• Decision Date: 19 June 1935
• Docket Number: 25013.
• Citation: 130 Ohio St. 43,196 N.E. 634
• Parties: CANTON PROVISION CO. v. GAUDER.
• Court: Ohio Supreme Court

196 N.E. 634

130 Ohio St. 43

CANTON PROVISION CO. v. GAUDER.

No. 25013.

Supreme Court of Ohio.

June 19, 1935

Error to Court of Appeals, Summit.

Suit by Annabelle Gauder, a minor, by her next friend, Frank Gauder against the Canton Provision Company and another. To review a judgment of the Court of Appeals reversing a judgment of the court of common pleas which quashed the service of summons the named defendant brings error.-[Editorial Statement.]

Judgment of the Court of Appeals reversed, and judgment of the court of common pleas affirmed.

Annabelle Gauder, a minor of the age of three years, by her next friend, Frank Gauder, brought a suit in the court of common pleas of Summit county, against the Canton Provision Company of Canton, Stark County, Ohio, and Albert J. Kwiecinski of Akron, Summit county, Ohio, to recover damages for the sale of food which was unwholesome in that it contained the ordure of a rat. It is alleged in the petition that on or about the 8th day of July, 1932, at about 12 o'clock noon, the plaintiff's mother purchased from the defendant Albert J Kwiecinski, a retail meat dealer, in the regular course of business, certain food; that such food was manufactured by the defendant the Canton Provision Company and was commonly known as ‘ liver pudding’ ; that it was contained in a ‘ gut’ wrapper, which was sealed at both ends and stamped with the mark of the defendant the Canton Provision Company, and was sold and delivered by the defendant the Canton Provision Company to the defendant Albert J. Kwiecinski for the purpose of being held forth and represented by him to the public as wholesome and fit for human food purposes and conducive to the health of persons eating it, as the defendant Albert J. Kwiecinski at all times did, ‘ all of which was done by each of said defendants in the regular course and furtherance of their respective businesses.’

It is also alleged in the petition that the defendants ‘ were negligent and careless toward the plaintiff, in so holding forth and representing to the public that said ‘ liver pudding’ was wholesome and fit for human food purpose and in so selling same as aforesaid, in this: that both of said defendants knew, or by the exercise of ordinary care should have known, that said ‘ liver pudding’ so sold and delivered by the defendant, the Canton Provision Company, to the defendant, Albert J. Kwiecinski, and resold by him in accordance with its express intention and direction as aforesaid, was not wholesome and fit for human food purposes but, upon the contrary, was corrupted, poisoned, and putrified and unfit for human food purposes and injurious to the life and health of persons eating it in this, that it contained the feces of rodents, commonly known as ‘ rat dung’ ; and further, that notwithstanding each of said defendants knew or by the exercise of reasonable care should have known, of said corrupt, poisoned and putrified condition of said ‘ liver pudding’ , they wholly failed to disclose and make known said fact to the plaintiff.'

Allegations follow to show that plaintiff relied upon the representations of defendants in regard to the liver pudding sold by them and suffered injury in consequence thereof.

Summons was served upon the defendant Albert J. Kwiecinski in Summit county and upon the defendant the Canton Provision Company in Stark county. The defendant Kwiecinski filed an answer, but the defendant the Canton Provision Company took no steps except to file the following motion:

‘ Now comes the defendant, the Canton Provision Company, and disclaims any intention of entering an appearance herein save for the purpose of this motion and this motion only here moves the Court to quash the service of summons in this case for the reason that said defendant, the Canton Provision Company, is a resident of Stark County, and that this action is not properly brought in Summit County against this defendant .’ (Italics ours.)

This motion was sustained by the court of common pleas, and on error the Court of Appeals reversed the judgment and remanded the cause. This court allowed a motion to certify and this proceeding in error followed.

Syllabus by the Court .

1. Where action is instituted against two defendants jointly, one of whom is served with summons in the county in which the action is brought, and the other by a summons issued to another county of the state, and it appears upon the face of the petition that the defendants are not jointly liable for the reason that the liability of the nonresident defendant is primary and that of the resident defendant secondary, the service of summons on the nonresident defendant may be quashed.

2. Where the first step taken by a defendant is to file a motion in which he disclaims an intention of entering his appearance save for the purpose of the motion only and moves therein to quash the service of summons for the reason that such defendant is a resident of a county other than that in which suit is brought and that the action is not properly brought in the county of suit, the jurisdiction of the person is the only question raised, and the appearance of such moving defendant is not thereby entered upon the merits.

Amerman & Mills, of Canton, and Wells & Gaylord, of Akron, for plaintiff in error.

W. E. Pardee and B. K. Manning, both of Akron, for defendant in error.

WILLIAMS, Judge.

It is contended that the petition shows on its face that there is a misjoinder of parties defendant for the reason that a joint liability against them is not pleaded, and that the motion to quash was therefore properly sustained. It must be conceded that if the petition does not contain allegations showing such joint liability, service upon the defendant the Canton Provision Company was properly quashed. Gorey v. Black, 100 Ohio St. 73, 125 N.E. 126; Stark County Agricultural Soc. v. Brenner, an Infant, 122 Ohio St. 560, 573, 172 N.E. 659.

It has been held that a retailer of unwholesome meat is liable in tort to the user for damages proximately resulting from the sale in accordance with the provisions of section 12760 General Code. Portage Markets Co. v. George, 111 Ohio St. 775, 146 N.E. 283. The food product in that case seems not to have been in the original package but in the form of a veal roast. With reference to the packer or producer of food products it is now the general rule that where he is guilty of negligence in furnishing unwholesome food to a consumer through a retailer a...