Flynn v. Growers Outlet, Inc.

• Decision Date: 27 November 1940
• Parties: FLYNN v. GROWERS OUTLET, Inc. (three cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 373

30 N.E.2d 250

FLYNN

v.GROWERS OUTLET, Inc. (three cases).

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 27, 1940.

Report from District Court of Holyoke, Hampden County; Welcker, Judge.

Actions by Esther Flynn, Dawn Flynn, p.p.a., and John Flynn, against the Growers Outlet, Incorporated, to recover for effects of illnesses from eating pork sausage purchased from defendant. The trial judge found for the plaintiffs.

Order dismissing report affirmed.

Argued before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

O. Lamontagne, of Holyoke, for plaintiffs.

J. Swirsky, of Springfield, for defendant.

COX, Justice.

The plaintiffs seek to recover for the effects of illnesses alleged to have been caused by eating pork sausage that was purchased from the defendant. The actions have been treated by the parties as based on negligence.

There was evidence that the sausage meat packed in a glass receptacle, was purchased between ten and ten-thirty o'clock in the forenoon of Tuesday, November 14, 1939, by the plaintiff Esther Flynn, who is the wife of the plaintiff John. Dawn, aged six years, is their daughter. The receptacle was of transparent white glass, covered at the top by cellophane that was sealed on the sides. The meat was not prepared or packed by the defendant. At noon on the same day, a portion of the meat was cooked and eaten by the mother and her daughter. When Mrs. Flynn took the portion of meat from the receptacle, she noticed that the part next to the glass was of a ‘greyish’ color, that the center was ‘pinkish’, and that the part near the sides and extending up from the bottom one-half way was of a ‘greyish’ color as dark as her glove. She did not notice any odor and at no time did she know from the color that the meat might be unwholesome. In addition to the sausage meat, both mother and daughter ate potatoes, vegetable, bread and butter, and the daughter drank chocolate. Mrs. Flynn did not remember the kind of dessert that she had. When the daughter returned from school that afternoon about four o'clock, she complained of pains in her stomach and was ill. Her vomiting, which commenced late in the afternoon, continued on the two following days. On the morning of the fourteenth the daughter had orange juice, chocolate, scrambled eggs and cereal for her breakfast, and her mother had coffee. That evening more of the meat was cooked, and the husband ate some of it at six o'clock, together with potatoes, vegetables, bread and butter and some kind of a dessert. At the same meal, Mrs. Flynn ate a chicken sandwich made from chicken that she had cooked on Sunday morning, the twelfth, for the family dinner on that day. The remainder of the chicken had been kept in the refrigerator. No odor was noticed from any of the food that was eaten on the evening of the fourteenth. It did not appear what the husband ate at any time on Tuesday prior to his evening meal. During the night Mrs. Flynn awoke with pains in her stomach and was ill. She continued to vomit on the fifteenth and the sixteenth. He husband became ill on the fifteenth and vomited during the night. None of the plaintiffs had any medical attendance.

There was evidence that meat in a container that was ‘pinkish’ at the center and of a dark ‘greyish’ color at the outer edges showed a contamination or a preliminary stage of putrefaction, and that the color alone would be sufficient ground for this conclusion. The trial judge, who found for the plaintiffs, also found that the glass receptacle with its cellophane covering did not constitute an air sealed container; that the cause of the illness of each plaintiff was the unwholesome condition of the sausage meat; that the defendant should have seen the condition of the sausage meat at the time of the sale; and that its failure to do so was negligence.

The Appellate Division for the Western District ordered the report of the trial judge dismissed.

The evidence that the sausage meat showed contamination or a preliminary state of putrefaction came from a graduate veterinarian of Cornell University, who for five years was a meat inspector for the city of Holyoke. His duties did not include an inspection of meats in prepared form or those packed in containers or receptacles such as was used in the case at bar. The defendant objected to this testimony on the ground that the witness was not qualified to give it. The qualifications of an expert are commonly for the decision of the trial judge as a question of fact, and we cannot say, as matter of law, that he was in error in receiving the evidence. Good-year Park Co. v. Holyoke, 298 Mass. 510, 512, 11 N.E.2d 439, and cases cited. The defendant further contends that the subject matter of the testimony did not call for an expert opinion, but, on the contrary, that it was a matter of common knowledge. It is true that there is no room for the opinion of an expert if the subject of his testimony is of such a nature that it may be presumed to be within the common experience of men. But, if this is not the situation, the testimony of a qualified expert is admissible for such help as it may, if believed, give to the trier of facts. Jackson v. Anthony, 282 Mass. 540, 544, 185 N.E. 389. In the circumstances it cannot be said that the evidence was not received rightly.

This same witness was asked what is indicated if a portion of fresh sausage meat is of ‘normal’ color in the center and dark grey in the outer edges, and was allowed to reply, in substance, under the objection of the defendant, that this indicated contamination or a preliminary state of putrefaction. On this record this evidence should not have been admitted. It does not appear that there was any evidence to show what the normal...