Hertzler v. Manshum

• Decision Date: 03 January 1927
• Docket Number: No. 61.,61.
• Citation: 211 N.W. 754,237 Mich. 289
• Parties: HERTZLER v. MANSHUM et al.
• Court: Michigan Supreme Court

237 Mich. 289

211 N.W. 754

HERTZLER

v.MANSHUM et al.

No. 61.

Supreme Court of Michigan.

Jan. 3, 1927.

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

Action by Mae Hertzler, as administratrix of the estate of Christian Hertzler, deceased, against Everil J. Manshum and Bessie H. Hanchett, the latter doing business under the assumed name of L. & L. Jenison Company. Judgment for plaintiff against the last-named defendant, and such defendant brings error. Judgment reversed, and new trial granted.

Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ. Phelps & Paley, of Grand Rapids (Reed & Rogers, of Chicago, Ill., of counsel), for appellant.

William J. Landman and Fred P. Geib, both of Grand Rapids, for appellee.

SHARPE, J.

This is the second appearance of this case in this court. When first reviewed, the verdict for defendants was set aside and a new trial granted. 228 Mich. 416, 200 N. W. 155. A second trial has been had, resulting in a verdict and judgment in favor of the defendant Manshum and in favor of the plaintiff, and against the defendant Hanchett, in the sum of $5,063. This latter judgment is here reviewed by writ of error.

Plaintiff was permitted to offer proof that Minnie Blomley, a resident of the city, had purchased a sack of ‘Pride of the Valley’ flour from a merchant named Elenbaas, about the 20th day of April, 1919; that this flour was delivered to Elenbaas on the same day the flour purchased by plaintiff's wife was delivered to the defendant Manshum, and that both lots were manufactured at the same time; that Mrs. Blomley and the members of her family were taken ill after partaking of the foodstuffs in which the flour was used; and that the symptoms of their affliction were similar to those displayed by plaintiff and her family. Based on this proof, Dr. Brotherhood, a specialist in medical diagnosis, was permitted to express an opinion that the results following the use of the flour in the Blomley household were due to the presence of arsenate of lead in the food products. Elenbaas was not called, nor was there any proof offered as to the care which had been used in handling the flour while in his store.

On the former trial, Mr. Justice Wiest, speaking for the court, said:

‘The burden rests upon plaintiff to show that the poison was in the flour when purchased from defendant Manshum. If such fact is established plaintiff will make out a prima facie case against both defendants and the burden will shift to defendants to excuse themselves.’

Plaintiff's counsel stated that this proof was offered ‘for the bearing it may have upon the source of contamination of the flour in question in the suit at bar.’ The flour sold Mrs. Blomley was purchased by Elenbaas in the month of February. It was in his store until about the 20th day of April. Had an action been brought against the appellant for damages sustained by its use, it seems clear, under the proofs offered by it, that recovery could not have been had without proof that Elenbaas exercised the highest degree of care to prevent the poison from getting into the flour while in his possession. The admission of this proof was clearly error. That it was prejudicial to defendant cannot be doubted. Its consideration by the jury naturally resulted in relieving Manshum from liability.

As the case must go back for a new trial, some of the other assignments will be considered.

Proof was submitted of a sale of flour by Manshum to a Mrs. Mansfield, resulting in the illness of members of her family. It was afterwards stricken out by consent of plaintiff's counsel. The danger of the jury, unconsciously giving consideration to such testimony, although admonished not to do so is apparent. Counsel for plaintiff should be informed as to their ability to so follow it up as to make it...