Cheli v. Cudahy Bros. Co., 30.

• Decision Date: 04 June 1934
• Docket Number: No. 30.,30.
• Citation: 267 Mich. 690,255 N.W. 414
• Parties: CHELI v. CUDAHY BROS. CO.
• Court: Michigan Supreme Court

267 Mich. 690

255 N.W. 414

CHELI

v.CUDAHY BROS. CO.

No. 30.

Supreme Court of Michigan.

June 4, 1934.

Appeal from Circuit Court, Dickinson County; Frank A. Bell, Judge.

Action by Alfonso Cheli, administrator of the estate of Palmina Cheli, deceased, against the Cudahy Brothers Company and another. Judgment for plaintiff against named defendant, and such defendant appeals.

Reversed without new trial.

Argued before the Entire Bench, except BUSHNELL, J.

Ray E. McAllister, of Iron Mountain (Shaw, Muskat & Paulsen and Van B. Wake, all of Milwaukee, Wis., of counsel), for appellant.

Derham & Derham, of Iron Mountain, for appellee.

BUTZEL, Justice.

Plaintiff, as administrator of the estate of his deceased wife, brought this action against John Schinderle, a retail dealer in meats and groceries in the city of Iron Mountain, and Cudahy Brothers Company, a Wisconsin corporation. It is claimed that Mrs. Cheli contracted trichinosis as a result of the ingestion of uncooked sausage prepared from raw pork containing trichinae, and that the meat was purchased from Schinderle, who in turn obtained it from Cudahy Bros. The declaration contained two counts, one alleging that Cudahy Bros. negligently failed to use due care in the preparation of the meat. The other alleged the breach of an implied warranty that the meat was reasonably fit and proper for use as food, etc.

The defendant Schinderle was relieved from liability by a directed verdict, from which no appeal is taken.

Defendant Cudahy Company, against whom a verdict was rendered, claims that the verdict of the jury was based on conjecture and speculation as to the origin of the meat involved, as well as the origin of the trichinae. It further contends that, if it sold the meat in question, it was not derelict in the performance of any legal duty. Defendant claims that there is no known practical method by which the presence of trichinae can be detected in raw pork, and that therefore it cannot be held responsible for infection and death caused by bacteria absorbed into the body as a result of eating raw meat.

In 260 Mich. 496, 245 N. W. 503, we held the service of process in the instant case to be valid.

Appellant's contention that the verdict of the jury was based upon conjecture and speculation as to the source of the meat is not justified by the record. The testimony shows that on January 12, 1931, the deceased ordered about 30 pounds of fresh pork butts at Schinderle's store. Schinderle informed her that he had insufficient on hand at that moment, but filled the order on the afternoon on the same day. It is conceded that the retailer purchased pork butts only from Armour & Co. and Cudahy Bros. It is shown by the proofs that during the month of January Armour did not fill any orders from the Iron Mountain branch warehouses. Its records of deliveries from St. Paul show shipments arriving only January 8, 15, and 17. In view of the facts set out, therefore, the jury was justified in concluding the Cudahy meat was used to fill Mrs. Cheli's order on the afternoon of the 12th. This included additional evidence as to the methods of wrapping and packing employed by the two companies, as well as the presence of a Cudahy label on the box in which the butts were packed. The question was left to the determination of the jury, and we see no reason to disturb its findings in this respect.

The testimony shows that there is no known, practicable, or feasible method of determining whether hogs are infected with trichinae. The bacteria can be detected only by microscopic inspection of the entire carcass of the animal, although the organism is generally found in the muscles. Until 1906 it was the practice of the government to make such examinations, but this practice was finally discontinued because it was found to be ineffective. The only known treatments generally effective in killing trichinae are (1) freezing for twenty days at a temperature not higher than five degrees Fahrenheit; (2) raising the temperature of the meat to 170 degrees momentarily; or (3) a prescribed curing process. All of these processes, although effective, remove from the meat in a degree the quality of freshness demanded by the public. None of these methods were used by the appellant in its preparation of fresh pork, but the evidence clearly shows that all the ordinary, usual, and reasonable precautions taken by the meat-packing industry were observed in the instant case.

Act No. 193 of the Public Acts of 1895, as amended, §§ 5425 to 5442, inclusive, C. L. 1929, prohibits the sale of adulterated foods, and section 5427 includes diseased or tainted meats within this classification. Appellee contends that a violation of this statute is negligence per se. To give the statute such force in this case would in effect impose upon the manufacturer the liability of an insurer, regardless of the unusual nature of the use to which its product is put, if the testimony of Dr. A. Behnke is to be taken as true. The witness, a graduate veterinarian, has served in the Bureau of...