Davis v. Van Camp Packing Co.

• Decision Date: 16 February 1920
• Docket Number: No. 32527.,32527.
• Citation: 176 N.W. 382,189 Iowa 775
• Parties: DAVIS v. VAN CAMP PACKING CO.
• Court: Iowa Supreme Court

189 Iowa 775

176 N.W. 382

DAVIS

v.VAN CAMP PACKING CO.

No. 32527.

Supreme Court of Iowa.

Feb. 16, 1920.

Appeal from District Court, Webster County; R. M. Wright, Judge.

Action at law to recover damages by reason of sickness on the part of Alfred Davis, alleged to have been caused by the eating of Van Camp's pork and beans. At the close of all the evidence, there was a directed verdict for defendant. Plaintiff appeals. Reversed.

Salinger, J., dissenting.

Price & Hanson, of Ft. Dodge, for appellant.

Healy & Faville, of Ft. Dodge, for appellee.

PRESTON, J.

The original petition alleges substantially that on July 24, 1916, a can of Van Camp's pork and beans was eaten by certain members of the Davis family, of whom Alfred Davis, plaintiff, was a member; that as a result of eating said beans, plaintiff sustained damage by reason of ptomaine poisoning; “that the said defendant was guilty of negligence, false representations, and breach of implied and expressed warranty, in placing in the said can and container said pork and beans, containing poisonous, deleterious, noxious, and unwholesome substances which rendered the contents of said can unwholesome and dangerous to human life and health.”

The petition was assailed by motion because of a combination of actions based upon different grounds. There was no ruling on the motion, but appellant amended his petition and alleged:

“That as a result of the negligence of the defendant in preparing said food, and in the inspection thereof, and in the packing thereof, the said food contained poisonous and noxious substances, and as a result of the eating of the said food said Alfred Davis was poisoned, became sick of said poison, and suffered great bodily, mental pain and anguish.”

Appellee admitted its corporate capacity, and that its principal place of business was at Indianapolis, Ind., and denied other allegations of the petition.

At the close of plaintiff's evidence, defendant moved that plaintiff be required to elect whether he would proceed upon the theory of breach of warranty, express or implied, or upon the grounds of negligence in tort. Plaintiff was required to elect, and at first elected upon breach of implied warranty and tort, but was further required by the court to elect, and he then elected to stand on a tort action.

The main issue in the case is whether or not there was sufficient evidence to take the case to the jury, and incidentally whether the case should have been submitted upon breach of warranty and tort, and whether plaintiff should have been permitted to show that other cans of goods, purchased from the same consignment by other consumers, were also defective. Appellee contends that the evidence is not sufficient to show that the eating of the pork and beans caused, or was the proximate cause of, plaintiff's sickness; that under the law there is no warranty, and that the evidence shows that there was no negligence.

There is but little dispute in the evidence. Defendant is engaged in the manufacture of pork and beans. Each can bears a label as follows:

“Van Camp's Pork & Beans. Prepared with Tomato Sauce. The meat contained herein has been inspected and passed at an establishment where federal inspection is maintained. The contents of this can are ready for the table and can be served hot or cold.

To serve hot, place the can in boiling water or empty into frying pan.

Net contents two pounds, two ounces.

Prepared by the Van Camp Packing Company, Indianapolis, Indiana.”

The can itself bears the word “Sanitary” stamped upon the end. The evidence shows that the word “sanitary” is stamped by the manufacturer of the can, as their trade-mark, and applies to the can, rather than the contents. This was not known to the consumer. The entire label would have a tendency to lull the purchaser into a sense of security. Defendant is engaged in the manufacture of canned goods, including pork and beans, for human consumption. Their goods are dispensed to the consumer principally through jobbers. Defendant, in July, 1916, was jobbing canned pork and beans to the Ft. Dodge Grocery Company, for distribution to retailers and consumers. This was known to defendant company. On July 4, 1916, the can of beans in question was received by said grocery company in a consignment from the defendant company. July 12th, the grocery company sold to Munn, a retail grocer at Gypsum, five miles east of Ft. Dodge, the can of beans in question, with others. July 24, 1916, this can of beans was sold by Munn to the mother of plaintiff. This was Monday. The can appeared to be all right. The beans were eaten for the evening meal, within an hour after they were brought by Mrs. Davis to the home. When the beans were opened they were emptied into a bowl. They were not left standing in the can. This evening meal consisted of crackers, bread and butter, potatoes which had been dug that morning from the garden, boiled for dinner, and fried for supper, also the can of beans in question, and nothing else. Witnesses describe what they had for the other meals on that day and the next day. The meals consisted of ordinary food. Some canned peaches were eaten at some of these meals. No canned beans had been eaten for a month before. The family consisted of the father and mother, and seven children. Three of the children were not at home for the meal at which the beans were eaten, and did not partake of any of the beans, nor did the father and mother. One of the younger children ate nothing but beans for that meal. This one subsequently died from ptomaine poisoning, and the other three children who ate of the beans were taken sick soon after. Some of them were seriously ill for several weeks. All who ate of the beans were sick after eating. The father and mother and the three other children who did not eat of the beans were not sick. Some time before the date in question, the family had purchased a case of canned peaches. Some of them were eaten at about the time of the eating of the beans, and before and after that date. All the family had partaken, and there were no ill effects. The peaches were not allowed to stand in the can after they were opened. Some of the children had access to the orchard, and had eaten apples. The exact time of this is not shown, but the evidence does show that the apples were about gone at this time. The well was about 60 feet from the barn and near the stock pens. It was hot weather. Plaintiff, 17 years old, had been working in the harvest field, and with others, had drunk the well water from a jug. He had not been ill before eating the beans. There is no evidence that the water was impure. The medical witnesses do not give their opinion that the sickness of plaintiff and the others was caused by any of these other things. They say that ptomaine and metallic poisoning would be caused by contaminated pork and beans, or contaminated peaches. The usual cause of ptomaine poisoning are food contamination. It is food poisoning. It is a poisoning as the result of the introduction into the system of contaminated food. Some of the symptoms from metallic and ptomaine poisoning are the same. In plaintiff's case the symptoms were more for ptomaine poisoning. The symptoms of the different one are given in detail. They varied somewhat in the different individuals. The manner in which they are affected depends somewhat upon the quantity eaten, and other things. The vomit and bowel action of the affected persons, or some of them, showed the presence of beans. A few were whole. The vomiting was beans and a green-colored substance. The medical witnesses give it as their opinion, on the facts shown, that the illness was ptomaine poisoning, from eating the pork and beans in question.

Canned goods must be hermetically sealed to maintain the nontoxic condition. It was shown that the tomato sauce put up in these cans of pork and beans is a combination of tomatoes, vinegar, and spices. The evidence is that the presence of an acid, with vinegar, or any other acid, attacks the metals of the container, and not the food product. Some vinegar, as fruit vinegar, would have a tendency to increase the rapidity of decomposition of food. Fruit juices are frequently contaminated with ptomaine. Nitrogenous food products are more likely to contain ptomaine than acidulous products.

One of defendant's assistant managers, having personal knowledge of the operation of defendant's plants at Indianapolis and Crawfordsville, testifies in detail as to the operation of canning pork and beans; of the purchase, shipment, sorting, etc., of the beans and the pork; also the raising of tomatoes on their farms in Indiana, the preparation and shipment of the pulp or juice in sealed cans, to the factory; also the sanitary conditions in the factory and precautions taken to prevent contamination; that if the employés are not in good health, they are discharged. The sterilization of the filled cans is at a heat of 240 degrees for an hour and fifty minutes. The purpose of the sterilization is to kill any micro-organisms that might be in the product and make them sterile. He states that they realized that the cans go out of the plant as sealed packages; that the consumer has no opportunity of examining them until they are used as food; that there was a government inspector at the plant to see that these things were done, and that he was there for the purpose of protecting the public; that they had inspection of all the products that go into the can. He testifies to the inspection of the different things before they go into the factory, and of the method of inspection during the process of manufacture and canning. He testifies: That in 1916 the defendant company was behind in its orders; had practically no stock on hand. It was selling pork and beans as fast as it was made, and the company was manufacturing to the limit. The plant where pork and beans are packed is at Indianapolis. At the factory there they employ...