Great Atlantic & Pacific Tea Co. v. Hughes
| Citation | 3 N.E.2d 415,131 Ohio St. 501 |
| Decision Date | 15 July 1936 |
| Docket Number | 25687. |
| Parties | GREAT ATLANTIC & PACIFIC TEA CO. v. HUGHES. |
| Court | United States State Supreme Court of Ohio |
Certified by Court of Appeals, Mahoning County.
Syllabus by the Court .
1. The violation of the pure food laws of this state by the sale of unwholesome meat is negligence per se, and may be the basis of recovery for damages by the user of such unwholesome meat who suffers injury proximately resulting therefrom, provided the user is not himself guilty of negligence in the care preparation, cooking, or in any other manner, which contributes directly to his injury. Portage Markets Co v. George, 111 Ohio St. 775, 146 N.E. 283, approved and followed.
2. The language of section 12760, General Code, contemplates that the unwholesomeness prescribed shall consist of a diseased, corrupted, adulterated, or other condition having the effect of rendering such food deleterious to the health of normal persons generally.
3. A charge of the sale of food in violation of the statute may be sufficiently shown to require submission of the question for the determination of the jury, though there be no proof of its unwholesomeness by chemical or bacteriological analysis or examination.
This action for damages, which was instituted in the court of common pleas of Mahoning county, is based upon the charge that the defendant, in one of its retail stores operated in the city of Youngstown, while engaged in its regular course of business negligently and carelessly sold and delivered to the plaintiff a quantity of pork sausage which was ‘ poisoned and putrified’ and ‘ unfit for human food and injurious to the life and health of persons eating it’ and which, upon eating it, caused her to be seriously ill in the manner and in the respects which are set out in detail in the petition. Issue was made by answer, which is in substance a general denial. Upon trial of the case, a motion made for a directed verdict at the close of the plaintiff's evidence and renewed at the close of all the evidence was overruled, and upon submission to the jury a verdict was returned in favor of the plaintiff, upon which judgment was rendered. That judgment was affirmed by the Court of Appeals. The judges of that court, however, found that the judgment upon which they had agreed was in conflict with the judgment pronounced upon the same question by the Court of Appeals of the Eighth Appellate District in the case of Mills Restaurant Co. v. Clark, 45 Ohio App. 25, 185 N.E. 470, and certified the case to this court for review and final determination.
Barnum, Hammond, Stephens & Hoyt, of d, Stephens & Hoyt, of Youngstown, for plaintiff in error.
R. R. Thombs, of Youngstown, for defendant in error.
The question here presented is whether the verdict and judgment are contrary to law, it being the contention of counsel for plaintiff in error that there was no evidence to support the charge that the sale of the article of food in question was violative of section 12760, General Code, and hence constituted negligence per se. The provisions of that section are as follows: ‘ Whoever sells, offers for sale or has in possession with intent to sell, diseased, corrupted adulterated or unwholesome provisions without making the condition thereof known to the buyer, shall be fined not more than fifty dollars or imprisoned twenty days, or both.’
In the case of Portage Markets Co. v. George, 111 Ohio St 775, 146 N.E. 283, this court had before it a case involving facts quite similar to those presented by the record in the instant case. It was there announced in the syllabus that, ‘ The violation of the pure food laws of this state by the sale of unwholesome meat is negligence per se, and may be the basis of recovery for damages by the user of said unwholesome meat, who suffers injury proximately resulting therefrom, provided the user is not himself guilty of negligence in the care, preparation,...
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