Hollis v. Armour & Co.
| Decision Date | 07 April 1939 |
| Docket Number | 14859. |
| Citation | 2 S.E.2d 681,190 S.C. 170 |
| Parties | HOLLIS v. ARMOUR & CO. |
| Court | South Carolina Supreme Court |
Grief McDonald & Todd, of Greenwood, for appellant.
W H. Nicholson and W. R. Dunn, both of Greenwood, for respondent.
This is an action for damages. The plaintiff alleged that the defendant is engaged in the business of manufacturing meats canned goods, etc., and advertises and holds out to the public that such goods are pure, wholesome and fit for human consumption; that one T. L. Coleman, a merchant, bought a sealed can of sausage in oil, a product of the defendant which was delivered to him on July 24, 1937, and remained in his store sealed until late in the afternoon of July 26th; that during the morning of the following day, July 27th, the plaintiff purchased from Coleman some of the sausage in oil from the said can, and that upon eating the sausage he "immediately became deathly sick." He further alleged:
The defendant, answering, admitted that it was engaged in the business of manufacturing meats, canned goods, etc., and that Coleman had purchased a sealed can of its sausage in oil, but denied the other allegations of the complaint. For a further defense, it alleged "that in manufacturing, canning, compounding, packing, inspecting and selling its food products, including sausage in oil, it used and uses all reasonable care and caution to insure the purity, cleanliness and wholesomeness of said products, and used and uses the most modern, sanitary and approved methods employed in the manufacture and sale of food products, and known to be the highest state of the art of manufacturing same, and that sausage in oil manufactured and sold by defendant, including the sausage referred to in the complaint herein, was manufactured in establishments under the inspection of the Bureau of Animal Industry and pursuant to the acts of Congress and Rules and Regulations adopted pursuant to statute, and said sausage was sound, wholesome and fit for human consumption when sold by the defendant."
The case was tried in April, 1938. At the conclusion of the testimony, the defendant asked for a directed verdict in its favor upon numerous grounds. The motion was refused and the jury found for the plaintiff $1,500. A motion for a new trial was also denied, and this appeal followed.
There are twenty-six exceptions, some of them being objectionable as to form. We will not discuss them seriatim, but all of them will be noticed in our disposition of the appeal.
The following questions are fairly raised: (1) Did the Court commit error in not directing a verdict for the defendant? (2) In its instructions to the jury? (3) In refusing to charge certain requests? (4) In denying the motion for a new trial? These we will consider in the order named.
First. Certain exceptions raising this question present in varying form the contention of the appellant that the only reasonable inference to be drawn from the testimony is that the defendant was not negligent, reckless or wanton in any of the particulars named in the complaint, and that the Court erred in not directing a verdict on this ground of its motion.
An examination of the record discloses that there is no dispute as to the purchase by T. L. Coleman, a merchant, from Thomas & Howard, jobbers, of Newberry, South Carolina, of the sealed can of sausage in question, a product of the defendant company; and that the sausage was delivered at the store of Coleman on Saturday, July 24, 1937, that he opened the can late in the afternoon of Monday, July 26th, and that he sold some of the sausage to the plaintiff early the following morning, July 27th. Coleman testified, among other things, that he opened the can in the usual way with a knife and took out the sausage that he sold with an ordinary steel ice pick, the pick being a bright, shiny one, free of rust; that he did not notice anything wrong with the sausage or the can at the time, and detected no odor; that Hollis and several others to whom he sold some of the sausage were all made sick; that when he learned of this fact, he examined the can, and by tilting it over found that it was corroded or rusted on the inside; that he furnished samples of the sausage to interested parties, and gave the can to a man who called for it, and when it was returned to him all of the sausage and oil had been taken out. The witness identified the can introduced in evidence as the one from which he sold the sausage, and pointed out that something had caused the sausage to disintegrate, its links having disappeared. He further testified that in his twenty-six years experience he had never seen a can in that condition before, although he had kept sausage in other cans for sometime. He also stated that Mr. Anderson, a salesman of the defendant, came into the store about thirty days later, and that when the witness showed him the can and pointed out the corrosion, he said "it was a bad can that got by inspection."
Hollis stated that when he purchased the sausage, Coleman wrapped it in paper and put it in a sack, and that the witness took it with him in his car about fourteen miles to his work and ate it at his dinner time, about twelve o'clock; that he and Mr. Perrin then went out to look over a detour road and while out there he became very ill, and when he got back to the place where he was working, he found two of his negro hands who had eaten some of the sausage also ill. Perrin testified that Hollis and the negroes were taken ill as stated, one of the negroes being practically unconscious, and that they were all carried down to Greenwood to Dr. Fuller's office. Three negroes also testified that they had eaten some of the sausage in question and were made ill.
Dr. Fuller testified as to the condition of Hollis when brought to him on the afternoon of July 27th. He stated that the plaintiff was apparently a very ill man, and that he put him to bed; that "he was cold and clammy and perspiration standing on his face and hands, and his pulse was rapid and very weak, and nauseated, he vomited several times in the office;" that in his opinion, from his diagnosis, Hollis had what is commonly called ptomaine poison, which is a common name for food poisoning; and that when he inquired and was told what Hollis had eaten, he concluded that his illness was due to the sausage. He also testified that he examined the negroes brought in at the same time, and found that their symptoms and condition were the same as that of Mr. Hollis; and that he gave them treatment at his office and sent them to the hospital.
Gatlin a salesman with Thomas & Howard Company, stated that he got two samples of the sausage from Coleman, the second about six weeks after the first, and gave them to Mr. Blackwell, the manager of the house; that when he got the second sample, Coleman showed him the side and bottom of the can, and it looked like it had corroded; and that its condition then as compared to the condition of the can in evidence seemed to be about the same. Ford, a salesman with the defendant company, testified that he saw the can, then in evidence, for the first time that day, and that it was in a very unusual condition, if it was in that condition at the time it was sold. Penticuff, superintendent of the sausage manufacturing department of the defendant, testified that he did not think it would be safe to eat sausage out of a can that was in the condition of the one then in Court, but he did not believe it was in that condition at the time it was sold; that leaving sealed cans of sausage in a room of ninety degrees of heat for ten days does them no harm; and that in inspecting the cans, it was occasionally found that one was not good, a very...
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