Heinemann v. Barfield

• Decision Date: 28 October 1918
• Docket Number: 194
• Citation: 207 S.W. 58,136 Ark. 456
• Parties: HEINEMANN v. BARFIELD
• Court: Arkansas Supreme Court

207 S.W. 58

136 Ark. 456

HEINEMANN v. BARFIELD

No. 194

Supreme Court of Arkansas

October 28, 1918

Appeal from Jackson Circuit Court; D. H. Coleman, Judge; affirmed.

STATEMENT OF FACTS.

The appellee brought this action against the appellant. She alleged that appellant was a merchant in Newport, Arkansas that he was a dealer in flour and other foodstuffs; that on or about December 11, 1916, the appellant sold to R. H Barfield, the husband of the appellee, a sack of flour which contained arsenic, which the appellant knew was to be used by the family of R. H. Barfield, of which appellee was a member that the appellant knew, or, in the exercise of that degree of care required of him, should have known that the flour was impure, unwholesome and contained arsenic; that on the 12th of December, 1916, appellee ate some of the flour which had been prepared and cooked for food, and because of the poisonous substance in the flour she was caused to be violently ill and to suffer great physical and mental pain and anguish, and that she continues to so suffer; that her illness, pain and sufferings were caused by the wrongful act of the appellant in so selling for use as human food, the flour which contained poison as before alleged; that, by reason of the wrongful act of the appellant, the appellee was forced to spend money for medicine and medical attention, and will be compelled in the future to make such expenditure that her health had been permanently impaired by reason of the wrongful act, all to her damage in the sum of $ 7,500 for which she prayed judgment.

The appellant moved to require the appellee to make her complaint more definite: First, by "setting out what degree of care the law requires of one who deals in food for human consumption;" second, by "setting out what wrongful act upon the part of the defendant the plaintiff relies." The motion to make more specific was overruled, whereupon appellant filed a general demurrer which was also overruled, and the appellant answered specifically, denying the allegations of the complaint and alleging that if the plaintiff was injured from eating unwholesome food, it was the result of her own negligence; that R. H. Barfield had equal opportunity with the appellant for determining whether the flour contained poisonous matter at the time of the purchase. Appellant further alleged that there was no privity of contract between the appellee and the appellant in the purchase of the flour, and that the appellee assumed the risk of using the flour if the same was unwholesome, as alleged.

The facts are substantially as follows: R. H. Barfield was a colored man living on appellant's place as a tenant. Appellant was a merchant and furnished Barfield his supplies. Appellee was the wife of R. H. Barfield. Living in the house with Barfield and his wife were Foreman Adkisson and his wife and child, Barfield's father and his wife, and R. H. Barfield's two children. On the morning of the 12th of December, 1916, the appellee cooked biscuits out of a sack of flour that had been purchased from the appellant a few days before. Appellant was a retail merchant, and had purchased the flour in question from the Stevens Grocery Company, a wholesale grocery firm of Newport, Arkansas. Appellant did not know where the flour was made. The flour was sold to Barfield or Foreman Adkisson by one of the appellant's clerks. Appellant knew nothing of the sale of the particular sack of flour at the time it was sold. The flour was one of three sacks that had been kept in a large bin lined with tin. It had a front door which let down with hinges and a screen for ventilation. The flour was kept in sacks. There were three sacks that had been torn and the flour in them had been put into new sacks and these sacks were tied with a string like an ordinary bag. The flour in question was in one of the sacks that had been so refilled. There was some loose meal and flour in the bin the day that the sacks were refilled, which was cleaned out and thrown into the refuse can and burned on the same day that the flour in question was sold.

Appellee testified that the sack in question from which she took the flour was not a full sack and appeared to have been opened and tied up. There was a small hole in the side of the sack. She took the flour out of the top of the sack with her hand, rolled the dough on the board which she always used, and used the same pan that she had been using before. Appellee and her husband, Foreman Adkisson and his wife, and appellee's father were all that were at the table. Soon after eating breakfast they all became sick. A physician was sent for and he arrived about 9 o'clock. He found R. H. Barfield on the floor very sick, vomiting and his bowels moving involuntarily. The condition of the others was the same but not so severe. He sent for three other physicians. They diagnosed the symptoms as having been caused by acute arsenic poisoning.

A portion of the flour left on the bread board after mixing the dough for the biscuits was preserved in an envelope and delivered to a chemist, whose analysis showed that it contained 35.3 per cent. of arsenic. The sack of flour, from which the biscuits were made, was taken by one of the doctors who found a large quantity of arsenic in the sample that came off the top of the sack, but found none in that which came out of the middle or the bottom of the sack. Before beginning to use from the sack of flour in question, appellee had set the same unemptied in her flour barrel. After the occurrence the flour was emptied into the barrel and was thereafter taken out of the barrel by Doctor Stevens and put in a sack.

It was shown that on October 15, 1916, one of the employees in appellant's store bought a two or two and a half ounce package of rough-on-rats. The druggist who made the sale testified that rough-on-rats runs all the way from 15 to 20 per cent. arsenic. The day after the occurrence appellant went to the Barfield home in company with the sheriff and another, and they gave orders to burn the barrel from which the flour had been taken. A cup of the flour had been taken out of the barrel to be saved for a sample, and appellant ordered this flour thrown in and burned with the barrel, saying the chances were that some of the rest of them out there might get poisoned out of that flour.

It was shown that Albert Lichtig, an employee of the appellant, who had charge of the grocery department, put out rat poison all around the flour bin. He went out and bought some cheese and took the poison and fixed it on the cheese. The witness who observed this did not know whether he put the poison in a hole in the cheese or just sprinkled it on. Witness was not instructed to take up the poison the next morning after it was put out. Appellant had dogs that were in the store very often. Something like a week before the 12th of December, 1916, Lichtig cleaned up the bin, taking the flour from the floor of the bin and putting it in one of the sacks. There was testimony on behalf of the appellant tending to show that the loose flour that was in the bin after resacking was scraped up and put in the refuse can and burned; that one of these sacks of flour was sold to the negro porter, one was sold and sent to a family living on a boat, and the other to Adkisson or Barfield; that none of the porter's family, nor the family on the boat suffered any injury from eating the flour; that the rough-on-rats was purchased by appellant's employee on October 15, and was put in a hole made in cheese and the cheese placed on card boards set about on the floor of the store for the purpose of killing rats; that this was done for a period of about fourteen nights from the date of the purchase of the rat poison; that the same cheese and the same poison was used each night; that appellant personally knew nothing of the sale of the flour, nor of any poisonous substance in the flour, if there were any at the time of the sale; that the sack was tied with a string; that pure arsenic was found in the sample of flour sent to the chemist; that it was arsenous acid, odorless and colorless; that rough-on-rats had both odor and color; that the flour claimed to have been purchased by Barfield was taken from the store to his house on the 9th of December and set in his kitchen on the floor until Tuesday, when the contents were poured into a barrel in which flour was kept; that some of the old flour was still in the barrel and that no meal was found mixed with any of the flour in any of the sacks.

Appellant himself testified as follows: The flour was kept in a bin underneath the grocery shelf. The bin was lined, on the inside, with tin with a small trap door over the top, twelve or fourteen inches wide, the center of it was screened with wire and the balance nailed up with zinc with two boards in front underneath the screen door. It was built nearly two years ago. The back of the bin was made of shiplap with zinc covering; back of the shiplap was made of brick. We kept the flour sacked up in the bin. About six or seven weeks before the poisoning, I sent Alex Franks after some rat poison and explained to Albert how to mix it and lay it out. I instructed him to put some rough-on-rats in one or two eggs and mix it up, and put it on top of the cheese and lay it on a little piece of paste board. He got everything ready and I told him to put it in the drawer of the desk and then put it out at night. I have dogs at the store, and when the store was opened I instructed my clerks to pick up these pieces so the dogs would not get hold of them. These pieces of cheese were put on the hat shelves just west of the bin towards the door; the rat holes were about fifteen or twenty feet from the bin.

There was testimony tending to prove that...