Drury v. Armour & Company

• Citation: 216 S.W. 40,140 Ark. 371
• Decision Date: 03 November 1919
• Docket Number: 172,184
• Parties: DRURY v. ARMOUR & COMPANY
• Court: Arkansas Supreme Court

216 S.W. 40

140 Ark. 371

DRURY v. ARMOUR & COMPANY

No. 172, 184

Supreme Court of Arkansas

November 3, 1919

Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.

Judgment reversed and cause remanded.

Brundidge & Neelly and J. J. McKay, for appellant.

1. The court erred in compelling plaintiff to elect, as plaintiff had the right of action on both causes or either of them.

2. Plaintiff's testimony makes a full and complete cause of action for negligence on part of defendant company in the preparation or inspection of its food products. 76 Ark. 352; 114 Id. 145.

3. It was error to take the case from the jury, as negligence was proved. 200 F. 322; 247 Id. 921; 96 Mich. 245; 55 N.W. 812; 21 L. R. A. 139; 93 Kan. 334; 144 P. 334; L. R. A. 1915 C. 179; 120 F. 865-870; 57 Am. Dec. 455; 135 Mich. 57 97 N.W. 152; 63 L. R. A. 743; 106 Am. St. 384; 19 L. R. A (N. S.) 923; 57 Ark. 435; 86 Id. 81; 20 R. C. L 590. Res ipsa loquitur. Ib. 590 (b); Ann. Cases 1916 C. 122; 57 Am. Dec. 455; 83 Ga. 457; 10 S.E. 118; 20 Am. St. 324; 5 L. R. A. 612; 33 Wash. 87; 73 P. 797; 99 Am. St. 932; 229 F. 230; 19 L. R. A. (N. S.) 923. The evidence presented a case for a jury. Supra.

Cul L. Pearce and Rose, Hemingway, Cantrell & Loughborough, for appellee.

1. Defendant's motion to require plaintiff to elect was properly sustained. 124 Ark. 206; 69 Id. 209; 58 Id. 140; 32 Harvard Law Rev. 71.

2. There was no privity of contract and a suit on an implied warranty would not lie. 207 S.W. 62; 76 Ark. 352-355.

3. No negligence being shown, a peremptory instruction was correct. 76 Ark. 352; 139 Wis. 357; 23 L. R. A. N. S.) 876; 120 F. 865; 61 L. R. A. 303; 114 Ark. 140; 207 S.W. 58-63; 247 F. 921-931; 105 A. 55.

4. There was no evidence of negligence to warrant a recovery and no case for a jury. Supra. 11 Ark. 212, 235-6; 1 Thompson on Negl., § 403; 108 P. 101; 200 U.S. 484; 2 Chamberlayne on Mod. Law of Ev., § 1029. See also 47 N.E. 971; 88 Id. 71-73.

5. The doctrine of res ipsa loquitur has no place here. 8 Enc. of Ev. 872, 874; 89 Ark. 581-588; 75 Id. 491; 121 Id. 351-6; 4 Wigmore on Ev., § 2509 (3); 29 Cyc. 591-2; Wigmore on Ev., § 2509; 1 Thomps. on Neg., § 15; 6 Id. 7635-6; 59 A. 923; 70 S.W. 376; 84 S.E. 893-5; 106 N.E. 367; 114 S.W. 658; 64 S.E. 93-97-8; 127 S.W. 397; 98 N.E. 975; 66 S.E. 135; 119 F. 572; 112 N.E. 1025; 61 S.E. 745; 92 P. 40; 81 N.W. 397; 84 Id. 860; 166 F. 651; 102 N.W. 258-260; 114 Ark. 140; 100 N.E. 1978, etc.

MCCULLOCH, C. J. HART, J. dissents. Justice HUMPHREYS concurs.

OPINION

MCCULLOCH, C. J.

Minnie Drury, the wife of appellant, died on March 23, 1918, and appellant instituted this action against appellee to recover damages accruing by reason of the death of his wife, which is alleged to have resulted from eating poisoned sausage prepared and sold by appellee. It is alleged in the complaint that appellee prepared the sausage for sale by retail dealers for immediate consumption, and that appellee "maintains a place of business in Helena, Arkansas, and other towns in said State, representing and holding out to the general public that its goods are wholesome, pure and fit for food." It is further alleged in the complaint that appellee "was guilty of negligence in manufacturing and preparing said sausage so purchased in that the same contained a nauseating poisonous substance." Appellant sues in his own right for damages sustained by him on account of the death of his wife, and also sues as administrator of his wife's estate.

Appellee filed a motion to require plaintiff to elect whether he would prosecute the action upon the alleged breach of implied warranty or on the allegation of negligence in the preparation of the sausage. The court sustained the motion, over appellant's objection, and he thereupon elected to try the case on the allegation of negligence contained in the complaint. Appellee answered, denying that it was guilty of negligence in preparing the sausage and denied that the sausage contained any poisonous substance, or that Minnie Drury was made sick or died from eating the sausage. The case proceeded to trial before a jury, but at the conclusion of appellant's introduction of testimony the court gave a peremptory instruction in favor of appellee, and judgment was rendered accordingly in appellee's favor.

(1-2) It is contended, in the first place, that the court erred in requiring appellant to make an election as to the cause of action in the complaint he would stand upon. It is argued that notwithstanding the fact set forth in the complaint that the sausage was not purchased by the consumer directly from appellee, but through an intermediate retail dealer, there was a warranty of the wholesomeness of the food product, and that plaintiff could maintain an action for the damages resulting from a breach of the warranty. This question is decided against appellant's contention in the case of Nelson v. Armour Packing Co., 76 Ark. 352, 90 S.W. 288, where Judge BATTLE, speaking for the court, said: "In the sale of provisions by one dealer to another in the course of general commercial transactions, the maxim caveat emptor applies, and there is no implied warranty or representation of quality or fitness." Liability was denied in that case on the ground that "there was no privity of contract between appellant and appellee, and no warranty passed with the property from appellee to appellant through his vendor." The doctrine of that case has been approved by this court in Colyar v. Little Rock Bottling Works, 114 Ark. 140, 169 S.W. 810, and Heinemann v. Barfield, 136 Ark. 500, 207 S.W. 62. We adhere to the doctrine now and treat the question as settled.

The complaint in the case of Nelson v. Armour Packing Company, supra, contained an allegation of negligence, but the subject was not treated in the opinion, which dealt solely with the question of the plaintiff's right of action on a breach of implied contract of warranty. In the later cases, cited above, we held that there is a right of action in favor of the ultimate consumer under such circumstances against the manufacturer upon allegations and proof of negligence in the preparation of foods, this being upon the theory that where food products are prepared by a manufacturer for sale to retail dealers for consumption by the ultimate purchaser, it is to be reasonably anticipated that injury will result to the consumer from the use of the unwholesome food thus placed on the market. Many of the cases cited on the brief of counsel for appellant sustain that view. Salmon v. Libby, 219 Ill. 421, 76 N.E. 573; Parks v. Yost Pie Co., 93 Kan. 334, 144 P. 202; Tomlinson v. Armour & Co., 75 N.J.L. 748; 19 L. R. A. (N. S.), 923, 70 A. 314; Craft v. Parker, 96 Mich. 245, 55 N.W. 812; Haley v. Swift, 152 Wis. 570; Wilson v. Ferguson, 214 Mass. 265, 101 N.E. 381. The court did not err in requiring the election.

The remaining question for our consideration is whether or not there was evidence legally sufficient to go to the jury as to the cause of Mrs. Drury's sickness and death, and on the charge of negligence against appellee in preparing the sausage and putting it on the market for purchase by consumers. Appellee maintained a place of business at Helena, Arkansas, for distribution of its food products throughout the adjacent commercial territory, and the sausage alleged to have been eaten by Mrs. Drury came from that place of business maintained by appellee, who sold it to C. M. Parham, a retail merchant at Bald Knob, Arkansas, who in turn sold it to appellant for family consumption.

Appellant resided with his family at a lumber camp a few miles distant from Bald Knob and on Saturday, March 23, 1918, he purchased from Parham several articles of food, including two sticks of bologna sausage, each weighing about four and one-half pounds. The purchase was made for appellant by Mr. Bridgeman, one of his neighbors, who returned from Bald Knob with the purchased foodstuffs about 8 o'clock on the evening of the day mentioned. When the bill of goods was being purchased from Parham, Bridgeman called for the sausage and was informed by Parham that he had none in stock, but that there was a consignment due, which was perhaps then at the railroad station, and he sent down to the station and the box containing the sausage was brought to the store and opened in Bridgeman's presence. The box contained four sticks of equal size and weight, two of which were, as before stated, sold to Bridgeman for appellant.

When Bridgeman delivered the goods to appellant, the latter's family had eaten the evening meal about 6 o'clock, which, according to the testimony, consisted of fried potatoes, rice, bread, coffee, mince pie and home-grown strawberries and apple butter. Appellant and his wife had two children, the oldest about seven years old, and the whole family partook of all of the above mentioned articles at the evening meal. Mrs. Drury became ill about 10:30 o'clock that night and began vomiting about 1 o'clock and continued ill until the following Sunday, when she died. She was treated by a physician during her illness and the physician testified as a witness in the case.

There is no direct testimony that Mrs. Drury ate any of the sausage, but there are circumstances relied on by appellant as sufficient to establish that fact. There was no one in the house that night except appellant and his family, and he testified that the next morning when he went out to prepare breakfast for himself and children he found that one of the sticks of sausage had been cut through and a portion of the meat had been used, and he also testified that after his wife began vomiting he examined the discharge in the bucket in which she vomited and saw particles which he identified as...