Hertzler v. Manshum

• Decision Date: 06 October 1924
• Docket Number: No. 45.,45.
• Citation: 200 N.W. 155,228 Mich. 416
• Parties: HERTZLER v. MANSHUM et al.
• Court: Michigan Supreme Court

228 Mich. 416

200 N.W. 155

HERTZLER

v.MANSHUM et al.

No. 45.

Supreme Court of Michigan.

Oct. 6, 1924.

Error to Circuit Court, Kent County; Willis B. Perkins, Judge.

Action by Mae Hertzler, administratrix, against Everil J. Manshum and another. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. William J. Landman and Fred P. Geib, both of Grand Rapids, for appellant.

Earl F. Phelps, of Grand Rapids, for appellee Hanchett.

Charles E. Ward, of Grand Rapids, for appellee Manshum.

WIEST, J.

Defendant Manshum conducted a store in the city of Grand Rapids, and sold wheat flour at retail. Defendant Hanchett, under the name of L. & L. Jenison Company, operated a mill at Jenison, Ottawa county, and manufactured wheat flour known as ‘Pride of the Valley.’ Christian Hertzler was a householder in Grand Rapids, and July 11, 1919, his wife ordered flour from defendant Manshum, and was furnished with two 25-pound sacks of ‘Pride of the Valley’ flour. Bakings from this flour caused Mr. Hertzler to be sick, indicated lead poisoning, and an examination disclosed arsenate of lead in the flour.

This suit is prosecuted by Mae Hertzler, as administratrix of the estate of Christian Hertzler, deceased, to recover damages occasioned her decedent by such poison.

The declaration counted on an implied warranty of the flour violation of a statutory mandate and negligence. The case was submitted to the jury upon the issue of actionable negligence only, and verdict rendered for defendants. Plaintiff reviews by writ of error, insisting on the right to go to a jury on all three issues, and questions other rulings at the trial. Both defendants denied liability. The retail dealer insists the flour was in sacks put up by the miller, and he is immune under the rule announced by some courts with reference to food stuffs in sealed containers or original packages put up for delivery to the trade. The miller insists on immunity because the flour was in sacks readily opened, claims the rule of sealed containers does not apply, and also invokes want of contractual relation with the consumer.

The very able briefs of counsel take a wide range, but we think the decisive issues within a very limited compass.

Arsenate of lead is a poison, wholly foreign to flour, looks like flour, and when mixed therewith cannot be distinguished therefrom by the eye. Defendant Manshum sold arsenate of lead in quantities wanted, keeping the same in a container in his store. It is claimed no arsenate of lead was kept in the flour mill, but some was in a store operated in connection with the mill.

Under the instruction given the jury by the learned trial judge plaintiff, in order to recover, was required to show affirmatively that through the want of ordinary care either of the miller or the dealer, the poison got into the flour. If the poison was in the flour when furnished by the dealer to plaintiff's decedent, one or both defendants are liable, unless they can excuse themselves. Even ordinary care ought to keep arsenate of lead out of flour. Prima facie, the poisoned flour was the result of some one's negligence. It was not, and could not have been, the result of deterioration or change. The poisoned flour speaks for itself; unexplained, it evidences negligence, for no proof of negligence could be more direct than the flour with arsenate of lead in it. If the poison was in the flour when delivered by the dealer, plaintiff was not bound to show how or when it became so mixed, or offer substantive evidence of want of care on the part of either or both defendants. The ruling, confining plaintiff's right of recovery to an affirmative showing of negligence on the part of defendants, placed an unwarranted burden upon her, and relieved defendants from fighting out between themselves the issue of where the blame, if any, lay for the injury done, and was erroneous.

Defendant Hanchett contends for nonliability under the general rule that the manufacturer of an article or commodity sold a retail dealer is not liable to a subsequent purchaser upon an implied warranty for injuries due to defects or impurities therein. This general rule is based on want of contractual relation. But foodstuffs do not fall within the rule of want of privity between the manufacturer and ultimate consumer, with a retail dealer intermediate. Flour is a food product, prepared and distributed for human consumption, and it comes from the manufacturer to the dealer for sale to consumers with the guaranty to consumers that it is free from poisonous foreign substances. The law, recognizing the imperative need of consumers of foodstuffs to rely upon the care of manufacturers thereof, and the inability of consumers in a case like the one at bar to detect injurious impurities or poisonous substances therein, and the complex system of modern production and distribution, holds the manufacturer, who prepares foodstuffs destined to be sold to and consumed by the public, liable to consumers purchasing from a retail dealer for a breach of the implied warranty arising from foreign poisonous substances therein, and there only by reason of want of a high degree of care.

The cases cited by counsel, and other cases upon the question of the liability of the manufacturer of foodstuffs to the ultimate consumer, appear hopelessly at variance. Some deny liability at all; some recognize liability upon an implied warranty of wholesomeness, some plant liability upon an implied negligence in case of foreign poisonous substances; while others hold liability depends upon a substantive showing of negligence. We experience no inclination to enter upon a review of such cases. We have before us a...