Franke's Inc. v. Wallace

• Decision Date: 29 October 1951
• Docket Number: No. 4-9564,4-9564
• Citation: 242 S.W.2d 968,219 Ark. 467
• Parties: FRANKE'S, Inc. v. WALLACE.
• Court: Arkansas Supreme Court

Page 968

242 S.W.2d 968

219 Ark. 467

FRANKE'S, Inc. v. WALLACE.

No. 4-9564.

Supreme Court of Arkansas.

Oct. 29, 1951.

Wright, Harrison, Lindsey & Upton, Little Rock, for appellant.

Gentry, Tisdale & Shamburger, Little Rock, for appellee.

MILLWEE, Justice.

This is an action by appellee, Mrs. Nellie W. Wallace, in which she recovered judgment for $750 against appellant, Franke's, Inc., on account of illness and injuries allegedly caused by having eaten food that was unwholesome and unfit for human consumption at appellant's cafeteria in Little Rock.

The verdict and judgment are challenged on the sole ground that the trial court erred in refusing to direct a verdict for appellant because of the insufficiency of the evidence. More specifically, appellant says there is a complete absence of any proof that the food sold by it to appellee was unwholesome or deleterious.

There is little dispute in the evidence which, viewed in the light most favorable to appellee, is substantially as follows: On Easter Sunday in 1949 appellee ate her usual breakfast of oatmeal, toast and coffee about 5:30 a. m. She attended church with her niece and nephew who lived with, and were reared by, appellee and her husband. The three ate lunch at appellant's cafeteria about 1 p. m. They had the same food to eat except that appellee and her nephew had boiled custard, while appellee's niece had pie, for dessert. They went from the cafeteria to a movie where appellee became nauseated shortly before 4 p. m. and began regurgitating the custard which had a very offensive taste and ordor. When the three arrived home about 4 p. m. appellee and her nephew became violently ill and began vomiting and purging.

The family physician, Dr. N. F. Weny, whose qualifications were admitted by appellant, was summoned. He described appellee's condition upon arrival as follows: 'Mrs. Wallace was very actuely ill, she was suffering from violent vomiting, purging and cramping in the abdomen and shock, had a rapid pulse, blood pressure was low, she was very pallid.' Appellee's nephew was found in the same condition. Dr. Weny diagnosed appellee's trouble as acute food poisoning and treated her for that ailment. Sedatives and a stimulant were administered to relieve pain and combat shock. Upon a second visit the next day Dr. Weny placed appellee and her nephew on a liquid diet and had other medicine sent out from a drug store. Appellee remained in bed for a week and was unable to perform her customary household duties for a month. She later suffered from a spastic colon which might or might not have been caused by the food poisoning. Dr. Weny had given appellee a thorough check-up a week or two before Easter Sunday and found her in excellent physical condition.

On cross-examination Dr. Weny stated that the medical term for appellee's illness is acute gastroenteritis, the most common cause of which is food poisoning; that gastroenteritis could be caused by epidemic virus in which there might be a little vomiting and purging but not of the severe type suffered by appellee. While he diagnosed appellee's trouble as acute food poisoning and treated her for that trouble, he stated that no one could say positively that appellee was poisoned by eating bad food unless 'they saw her eat it or tested it out, that has to be assumed.'

Appellee made complaint to appellant's president. She testified that about a week after she became ill a Mr. Jessie, who stated that he represented appellant, called upon her. After identifying the time, place and persons present in response to appellant's objection, appellee was asked to relate the conversation and stated that Jessie asked her if she was ready to settle. Appellant's objection to this testimony was promptly sustained and the court admonished the jury not to consider any testimony about a settlement or compromise. Appellee was then permitted to testify, without objection, that Jessie told her that three other people eating at appellant's cafeteria on the same day had also suffered from food poisoning. Appelleeate nothing on the day in question other than breakfast at home and the lunch at appellant's cafeteria. She had previously eaten boiled custard in the cafeteria without ill effects and was not allergic to the custard or any other food.

H. R. Lewis, Vice-President of appellant in charge of Cafeterias, testified that he was in the cafeteria about an hour in the morning on the day in question. He named the ingredients and described the method usually employed in preparing and serving boiled custard. He stated that normally three gallons of custard was prepared on Sunday which would furnish 102 fourounce servings and that any custard left over was thrown away at the end of the day. He did not see the custard in question prepared and no record was kept of the number of servings sold on that day. He did not know whether any custard was left over either on the Sunday in question or the day before. He did not send anyone to see appellee but was not in charge of investigating complaints and did not receive any other reports of complaints about the custard in question. Appellant's president informed him of appellee's complaint which was handled in accordance with their normal procedure in such cases.

This court is committed to the rule that when articles of food are sold to the consumer for immediate use, or...