Flessher v. Carstens Packing Co.

• Decision Date: 26 September 1916
• Docket Number: 13235.
• Citation: 93 Wash. 48,160 P. 14
• Parties: FLESSHER v. CARSTENS PACKING CO.
• Court: Washington Supreme Court

160 P. 14

93 Wash. 48

FLESSHER v. CARSTENS PACKING CO.

No. 13235.

Supreme Court of Washington

September 26, 1916

Department 1. Appeal from Superior Court, King County; J. R. Ralston Judge.

Action by Charles Flessher against the Carstens Packing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See also, 81 Wash. 241, 142 P. 694.

Kerr & McCord, of Seattle, for appellant.

Garland & McLane, of Bremerton, for respondent.

ELLIS J.

Action for damages for injuries to plaintiff claimed to have been caused by eating diseased dried beef, prepared and sold by defendant to plaintiff for immediate consumption as human food.

It is alleged that, as a part of its business, defendant prepares and sells at retail flesh of animals for human food; that on or about October 15, 1912, defendant negligently and carelessly sold and delivered to plaintiff certain dried beef, which was poisonous, decayed, unhealthful, and unfit for human food, which fact was unknown to plaintiff, who believed that the meat was sanitary and fit for food, and that he purchased it for food for himself and family, which fact was known to defendant; that plaintiff ate of the meat soon after purchasing it, and that it caused him to become ill, to be thrown into fits and spasms; that his digestive system has become so impaired as to render his life a burden to himself and family; that he has lost control of his excretory organs, has frequent spasms; and that his health has become permanently impaired--all because of eating the meat so sold to him by defendant. On the first trial a verdict was returned and judgment entered in favor of plaintiff. On defendant's appeal the judgment was reversed on the ground that, the action being a common-law action for negligence, the trial court committed error in reading to the jury certain of the provisions of the pure food statute (Rem & Bal. Code, §§ 5453, 5455). Flessher v. Carstens Packing Co., 81 Wash. 241, 142 P. 694.

The evidence was voluminous, resulting in a statement of facts of nearly 500 pages. Lack of space forbids more than a mention of its salient features. The evidence adduced on behalf of plaintiff shows that about the middle of October, 1912, he purchased a small quantity of dried beef from the defendant at its market in Bremerton, Kitsap county, late in the afternoon; that he placed it on a shelf in the family cupboard in the original paper in which it was delivered to him by the salesman; that next morning he placed a piece of it between two slices of bread, wrapped the sandwich so made in a napkin, took it with him to his work in the navy yard, and at noon ate the sandwich, and soon after became very sick, was attacked with violent vomiting, retching, spasms, nausea, running off of the bowels, and became unconscious; that since that time to the time of trial there has been a frequent recurrence of these symptoms, and he has since been subject to frequent fits, spasms, convulsions, and periods of unconsciousness. Several physicians who had examined him, and others from hypothetical questions, expressed the opinion that his condition is the result of meat poisoning, is permanent, and will be progressive. Others testified that in their opinion his condition is not the result of meat poisoning but is produced by other causes.

Plaintiff's daughter ate of the same meat during the noon hour following the day of its purchase, and a few minutes afterwards became sick with nausea and diarrhea, exhibiting the same symptoms as those of plaintiff, but in a slighter degree. Other members of plaintiff's family, including his son, another daughter and his wife, ate of the same food eaten by plaintiff and his daughter on the day in question, excepting the dried beef, and did not become sick. The bread used by the plaintiff and his daughter in the sandwiches was part of a considerable quantity made by plaintiff's wife, all of which was eaten by the members of the household, both before and after the time in question, with no bad results. On Edmondson purchased dried beef at the same time of plaintiff's purchase, cut from the same larger piece, took it home with him, ate a part of it without bread or anything else, and in a few moments became violently sick, exhibiting the same symptoms as those of the plaintiff. Two other men near the same time purchased dried beef from defendant which the evidence tends to show was cut from the same larger piece. Both of them became sick soon after eating of the meat exhibiting symptoms similar to those of the plaintiff. Evidence was adduced, on behalf of the defendant, covering the whole process of its preparation of dried meats and its care of the meats, all tending to show that the meat in question was free from decay, filth, or impurities, and that no deleterious or poisonous preservatives were used in its preparation. It was also shown that all meats prepared by defendant are subjected to inspection by United States government inspectors, and that no meat prepared by defendant is offered for sale without being submitted to and passing such inspection. There was also evidence that two or three other persons ate of meat cut from the same large piece as that sold to plaintiff without injurious results. Some of the same piece was also submitted to two chemists for examination. Both of whom testified that they found no putrefactive bacteria or other impurities which would produce ptomaine poisoning. The jury returned a verdict for plaintiff in the sum of $3,600, on which judgment was entered after defendant's motions for judgment non obstante veredicto and for a new trial had been denied. Defendant appeals.

It is first contended that the court erred in refusing to grant appellant's motion for judgment non obstante veredicto. This contention is apparently based upon a twofold ground: (1) That the complaint as construed on the former appeal, sounded in tort through negligence, and respondent was permitted to recover only on the theory of implied warranty resting in contract, which was not specifically pleaded; (2) that in any event no negligence was established, in that there was neither allegation nor proof that appellant knew that the meat was unwholesome.

As to the first ground, it is a sufficient answer to say that where there is a positive duty created by implication of law independent of the contract, though arising out of a relation or state of facts created by the contract, an action on the case as for a tort will lie for a violation or disregard of that duty. Sharpe v. National Bank of Birmingham, 87 Ala. 644, 7 So. 106; Nevin v. Pullman Palace Car Co., 106 Ill. 222, 46 Am. Rep. 688; Hinks v. Hinks, 46 Me. 423; 6 Cyc. 688.

The implied warranty of the wholesomeness of food placed on sale, whenever it exists at all, arises as an implication of the common law. 'The liability does not rest so much upon an implied contract as upon a violation or neglect of a duty voluntarily assumed.' Bishop v. Weber, 139 Mass. 411, 1 N.E. 154, 52 Am. Rep. 715; Tomlinson v. Armour & Co., 75 N. J. Law, 748, 70 A. 314, 19 L. R. A. (N. S.) 923.

In such a case it is sufficient to set forth the facts from which the duty springs, the neglect of that duty, and resulting injury. It is not necessary to aver in terms the existence of the relation which in law casts the duty upon the vendor, or that he knew of the injurious quality of the food. The negligence consists in the violation of the duty to know under such circumstances what he should have known and refrained from causing the injury. Bishop v. Weber, supra.

Respondent, having pleaded the facts, was not required to plead the warranty as a legal conclusion in order to rely upon it.

As to the second ground it is clear from the foregoing that, if respondent had the right to rely upon an implied warranty that the meat was sound and wholesome, it was not incumbent upon him, either to plead or prove that appellant actually knew that the meat was unwholesome. He was only required to plead and prove such facts to the satisfaction of the jury, from which the law raises the implied warranty. Scienter need not be pleaded, and it follows that it need not be proven. Tomlinson v. Armour & Co., supra; Parks v. Yost Pie Co., 93 Kan. 334, 144 P. 202, L. R. A. 1915C, 179. It is said in the case last cited:

'The degree of care required of a manufacturer or dealer in human food for immediate consumption is much greater, by reason of the fearful consequences which may result, from what would be slight negligence in manufacturing or selling food for animals. In the latter a higher degree of care should be required than in manufacturing or selling ordinary articles of commerce. A manufacturer or dealer who puts human food upon the market for sale or for immediate consumption does so upon an implied representation that it is wholesome for human consumption. Practically he must know it is fit, or take the consequences if it proves destructive.'

See, also, to the same effect Neiman v. Channellene Oil & Manufacturing Co., 112 Minn. 11, 127 N.W. 394, 140 Am. St. Rep. 458; Meshbesher v. Channellene Oil & Mfg. Co., 107 Minn. 104, 119 N.W. 428, 131 Am. St. Rep. 441.

It is true that the Minnesota cases were actions brought under the pure food statute, but it is obvious that where there is an implied warranty at common law, the same rule as to the plea and proof of scienter must prevail. This court inferentially approved the same rule in the case of Mazetti v. Armour &amp Co., 75 Wash. 622, 135 P. 633, 48 L. R. A. (N. S.) 213, Ann. Cas. 1915C, 140, a common-law action grounded in negligence, in which actual scienter was neither pleaded nor proved, yet we extended the doctrine of implied warranty to a suit by a purchaser from the retailer against the...