Gearing v. Berkson

• Decision Date: 01 March 1916
• Citation: 223 Mass. 257
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: KATHERINE GEARING v. JOHN BERKSON & another. PERCY A. GEARING v. SAME.

223 Mass. 257

KATHERINE GEARING v. JOHN BERKSON & another. PERCY A. GEARING v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1916

November 29, 1915.

Present: RUGG, C.

J., LORING, DE COURCY, CROSBY, & CARROLL, JJ.

Food. Sale, Of food.

Contract, Implied. Sales Act. Negligence, In sale of unwholesome food.

Under the sales act, St. 1908, c. 237, Section 15, as before at common law if one buying meat at a shop relies on the skill and judgment of the dealer in selecting the meat and it is made known to the dealer that his knowledge and skill are relied on to supply wholesome food, the dealer is liable to the buyer for damages resulting from his supplying unwholesome food. Following Farrell v. Manhattan Market Co. 198 Mass.

271.

If a wife, acting as the agent of her husband, purchases meat at a shop and in so doing with the knowledge of the dealer relies upon the skill and judgment of the dealer for the selection of wholesome meat, and if the dealer gives to her meat unfit for food upon the eating of which she becomes sick, she cannot maintain against the dealer either an action of contract or an action of tort founded upon the violation of the implied condition of the sale that the food should be wholesome because the sale was to her husband.

If a dealer in meat undertakes to make a selection of pork chops to fill an order given to him by a woman on behalf of her husband, and selects unwholesome meat, the eating of which makes the woman sick such selection is not, without more, negligence as a matter of law which would make the dealer liable in an action of tort brought against him by the woman for personal injuries so received and alleged to have been caused by his negligence.

Where a husband successfully has maintained an action of contract against a dealer in meat for damages caused by his being made sick because of eating meat of an unfit and unwholesome character selected by the defendant and delivered to the plaintiff's wife on his behalf, and also has recovered for expenses to which he was put by reason of sickness of his wife resulting from eating some of the same meat, and the wife is unable to recover from the dealer for her injuries in an action of contract, because the sale was not made to her or in an action of tort, because she is unable to show that the defendant was negligent, neither spouse has a right to recover for the loss of consortium.

TWO ACTIONS OF CONTRACT OR TORT, the plaintiff in the second action being the husband of the plaintiff in the first. The first count in each action recited in substance that the plaintiff Katherine purchased pork chops of the defendants, leaving it to them to make the selection and paying the current price for wholesome food, and that both plaintiffs ate of the chops and became sick. The second count in the first action sought recovery for loss of consortium due to the sickness of the plaintiff Percy, and the second count in the second action sought to recover both for medical attendance and expenses and for loss of consortium due to the sickness of the plaintiff Katherine. In the first action there was an additional count, added by amendment and called a second count, alleging that the sale of the unwholesome food which caused the plaintiff's sickness was due to negligence of the defendants. Writs in the Municipal Court of the City of Boston dated March 18, 1914.

In the Municipal Court the judge found in substance that on February 5, 1914, the plaintiff Katherine gave an order for the pork chops to the defendant Freshman, in charge of the defendants' business, whose duty it was to wait upon customers and make sales of meat for food; that the selection of the meat was left by her to the defendant Freshman; that Freshman undertook to make selection of the pork chops and to fill the order given by the plaintiff Katherine; that the defendant Freshman from the stock of the defendants selected some pork chops, and weighed and delivered them to the plaintiff Katherine; that she, believing them to be wholesome and fit for food, paid for them at the current and ordinary price for sound, wholesome pork chops, and with due care took them to her house and cooked them; that she and the plaintiff Percy ate of the chops so bought and prepared, and thereby were made sick because of the unwholesome, unsound, poisonous, or unfit quality or condition of the pork chops, and suffered severely in body and mind, and that each plaintiff because of such illness was deprived of the society of the other.

In the first action, it also was found that "there was no negligence shown on the part of the defendants unless the foregoing evidence and findings constitute negligence as matter of law."

In the first action, the trial judge found for the defendant; and also found that, if the plaintiff were entitled to recover, her damages would be $60 "on the first or third count" and $15 on the second count.

In the second action the trial judge found for the plaintiff in the sum of $175 on the first count, and $25 on the second count, of which $10 was for expense and $15 for loss of services and society.

The trial judge reported both cases to the Appellate Division, the first at the request of the plaintiff, and the second at the request of the...