Cudahy Packing Co. v. Baskin

• Decision Date: 05 June 1934
• Docket Number: 31293
• Citation: 170 Miss. 834,155 So. 217
• Court: Mississippi Supreme Court
• Parties: CUDAHY PACKING CO. v. BASKIN

155 So. 217

170 Miss. 834

CUDAHY PACKING CO. v. BASKIN

No. 31293

Supreme Court of Mississippi

June 5, 1934

Division A

1 FOOD.

Manufacturer of food intended for human consumption and for sale by retailers impliedly warrants to consumer that food was fit for consumption when it left manufacturer's possession and control.

2 FOOD.

In action against manufacturer of food intended for human consumption and for sale by retailers, burden is on consumer to show that food was unfit for consumption when it left manufacturer's possession and control.

3 FOOD.

Where food reaches consumer in original container, which is such as to exclude the probability that deleterious matter had come in contact with food since placed in container, presumption is that food is in same condition that it was when placed in container by manufacturer.

4. FOOD.

Where food does not reach consumer in original container, consumer must prove that deleterious matter was in food when it left manufacturer's possession or control.

5. EVIDENCE.

That a can opener and ice pick, used in store to open cans and to remove contents and left exposed when not in use, could be contaminated by bacteria is so well known that judicial notice may be taken of the fact.

6. FOOD.

Manufacturer was not liable to consumer poisoned by sausage bought from retailer more than twenty-four hours after opening of hermetically sealed can of sausage packed in oil, where can was opened with can opener that was used for opening all canned goods, several previous sales had been made, and sausages were removed from can with ice pick which when not in use was left exposed on shelf or top of can.

HON. HARVEY MCGEHEE, Judge.

APPEAL from circuit court of Jefferson Davis county HON. HARVEY MCGEHEE, Judge.

Action by Ollie Baskin against the Cudahy Packing Company. From a judgment for plaintiff, the defendant appeals. Reversed, and judgment rendered for appellant.

Reversed and judgment here for the appellant.

A. M. Pepper and Johnson & White, all of Lexington, for appellant.

Our contention is that although appellant warranted the sausage to be fit and wholesome for human consumption, this warranty was fulfilled if the sausage was fit and wholesome for human consumption at the time the can was unsealed, and that there is no proof tending to show otherwise; that the proof showing, without contradiction, that there was ample opportunity for contamination after the can was unsealed, and before the sausage was consumed by appellee, it was essential that she prove by competent evidence that the sausage was, in fact, unfit and unwholesome at the time the can was unsealed, or that the same was not contaminated or infected from outside sources after the same was unsealed.

Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726; Bowman v. Woodway Stores, 345 ill. 110, 117 N.E. 727.

Decrees and judgments may not be based on conjectures.

Tyson v. Utterback, 154 Miss. 381, 122 So. 496; Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 460; Yazoo v. M. V. R. Co. v. Green, 147 So. 333; Hercules Powder Co. v. Calcote, 138 So. 583, 161 Miss. 795.

C. E. Thompson and Livingston & Milloy, all of Prentiss, for appellee.

In actions of this character the general rules as to presumption and burden of proof, admissibility, and weight and sufficiency of evidence apply.

26 C. J. 788, par. 103.

Whether causal relation exists between eating of food and alleged subsequent illness is usually jury question.

Murphy v. Campbell Soup Co., 62 F.2d 564.

The trial court did not err in overruling the motion of the appellant at the close of the evidence submitted by the plaintiff on the trial.

Rainwater v. Hattiesburg Coca Cola Bottling Co., 131 Miss. 315, 95 So. 444; Jackson Coca Cola Bottling Co. v. Chatman, 106 Miss. 864, 64 So. 791; Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490, 78 So. 395; Coca Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305.

This court has held in a great number of cases that the finding of fact by a jury will not be disturbed on appeal.

Morris v. St. Paul Railroad, 101 Miss. 768; M. C. Railroad v. Campbell, 114 Miss. 803; Gunter v. Yazoo Railroad, 145 Miss. 475; St. Louis Railroad Co. v. Bowen, 107 Miss. 97.

Argued orally by H. H. Johnson and A. M. Pepper, for appellant, and by C. E. Thompson and W. H. Livingston, for appellee.

OPINION

Smith, C. J.

The appellant is engaged in the packing and selling of meats, including sausage. It sold to a retail dealer a tin can containing sausage packed in oil; the can was hermetically sealed, and was not shown to have been broken when received by the dealer. After receiving the sausage, the dealer cut the top off of the can by means of a can opener used by him for such purpose in opening all canned goods received by him, including sardines and similar articles, when purchased by his customers who desired the immediate opening thereof. This can opener was not dealt with by him in such manner as to exclude the probability therefrom of germs that would cause meats to become unwholesome for human consumption. On removing the top of this can, the dealer covered the can with a tin top, which the appellant had forwarded with the can for that purpose, which top remained thereon except when removed by the dealer for the purpose of selling sausage therefrom. When selling the sausage the dealer would take it out of the can by means of an ice pick which, when not in use, was either on the top of the can or on a nearby shelf, which ice pick was also not so dealt with as to exclude the probability of germs deleterious to meat being thereon.

More than twenty-four hours after this can had been opened,...