Jacob E. Decker & Sons, Inc. v. Capps, 7815.

CourtSupreme Court of Texas
Citation164 S.W.2d 828
Docket NumberNo. 7815.,7815.
PartiesJACOB E. DECKER & SONS, Inc., v. CAPPS et al.
Decision Date22 July 1942

John P. Doyle, of Chicago, Ill., and Richard L. Arnold, William H. Arnold, and William H. Arnold, Jr., all of Texarkana, Ark., for plaintiffs in error.

Perry R. Meredith, of Longview, Florence & Florence, of Gilmer, Russell Surles, of Tyler, and E. M. Dodson, of Marlin, for defendants in error.

ALEXANDER, Chief Justice.

This suit involves the question of the liability of a manufacturer of food products to the consumer thereof for damages for personal injuries sustained by him as the result of the unwholesomeness of such food.

Jacob E. Decker & Sons, Inc., manufactured and sold certain sausage, advertised as being suitable for human consumption in the summer time, under the trade name of "Cervalet," which sausage was wrapped in a cellophane package. The sausage in question was sold on March 16, 1939, by Jacob E. Decker & Sons, Inc., to a retail merchant in Texas for resale, and was purchased by C. K. Capps on March 19, 1939. It was consumed immediately by members of Capps' family, and as a result one of the children died and other members of the family were made seriously ill. Mrs. Capps, after the death of her husband from other causes, brought suit for herself for damages for the injuries sustained by her as a result of the eating of the contaminated sausage. She also brought two other suits as next friend for her two surviving minor children for damages for the injuries suffered by them. The three suits were tried together. The jury found that at the time the sausage in question was processed and manufactured it was contaminated and poisonous to such an extent as to be unfit for human consumption; and that the eating thereof by the members of Capps' family proximately resulted in their serious illness. The jury further found, however, that Decker & Sons did not fail to properly inspect the sausage, and that the contaminated and poisonous condition of the sausage at the time it was manufactured was not due to the negligence of Decker & Sons in the manufacture and processing thereof, and that the illness suffered by Capps' family from the eating of the sausage was the result of an unavoidable accident. Judgments in favor of the plaintiffs for damages sustained by them were affirmed by the Court of Civil Appeals. 144 S.W.2d 404.

The jury's verdict, as we understand it, amounts to a finding that the sausage, at the time it was processed and manufactured by Decker & Sons, was so contaminated and poisonous as to be unfit for human consumption and the members of Capps' family were seriously injured by the eating thereof; but Decker & Sons was not negligent in the manufacture of the sausage. The finding of the jury that the injuries suffered by plaintiffs were the result of an unavoidable accident amounted to nothing more than a finding that there was no negligence on the part of either the plaintiff or the defendant.

Under the foregoing facts, the question to be determined is whether a nonnegligent manufacturer, who processes and sells contaminated food to a retailer for resale for human consumption, is liable to the consumer for the injuries sustained by him as a result of the eating of such food. So far as we have been able to ascertain, this exact question has not heretofore been before this Court. While there is quite a contrariety of opinion on the subject in other jurisdictions, there is no dearth of authorities. The question has been the subject of many annotations in the American Law Reports, as well as numerous articles in law reviews. 17 A.L.R. 709; 39 A.L.R. 1000; 63 A.L.R. 349; 88 A.L.R. 534; 105 A.L.R. 1511; 111 A.L.R. 1251; Jeanblanc, "Manufacturer's Liability to Persons Other Than Their Immediate Vendees," 24 Va.L. Rev. 134-158; Lessler, "Implied Warranty of Quality in Sales of Food," 14 Conn.B. J. 45-63; Perkins, "Unwholesome Food as a Source of Liability," 5 Iowa L.B. 6-35, 86-111; Note, 12 Neb.L.B. 163-175; Note, 21 Minn.L.Rev. 315-325.

After having considered the matter most carefully, we have reached the conclusion that the manufacturer is liable for the injuries sustained by the consumers of the products in question. We think the manufacturer is liable in such a case under an implied warranty imposed by operation of law as a matter of public policy. We recognize that the authorities are by no means uniform, but we believe the better reasoning supports the rule which holds the manufacturer liable. Liability in such case is not based on negligence, nor on a breach of the usual implied contractual warranty, but on the broad principle of the public policy to protect human health and life. It is a well-known fact that articles of food are manufactured and placed in the channels of commerce, with the intention that they shall pass from hand to hand until they are finally used by some remote consumer. It is usually impracticable, if not impossible, for the ultimate consumer to analyze the food and ascertain whether or not it is suitable for human consumption. Since it has been packed and placed on the market as a food for human consumption, and marked as such, the purchaser usually eats it or causes it to be served to his family without the precaution of having it analyzed by a technician to ascertain whether or not it is suitable for human consumption. In fact, in most instances the only satisfactory examination that could be made would be only at the time and place of the processing of the food. It seems to be the rule that where food products sold for human consumption are unfit for that purpose, there is such an utter failure of the purpose for which the food is sold, and the consequences of eating unsound food are so disastrous to human health and life, that the law imposes a warranty of purity in favor of the ultimate consumer as a matter of public policy.

Since very early times the common law has applied more stringent rules to sales of food than to sales of other merchandise. It has long been a well-established rule that in sales of food for domestic use there is an implied warranty that it is wholesome and fit for human consumption. Race v. Krum, 222 N.Y. 410, 118 N.E. 853, L.R.A.1918F, 1172; Wiedeman v. Keller, 171 Ill. 93, 49 N.E. 210; Houston Cotton Oil Co. v. Trammell, Tex.Civ.App., 72 S.W. 244; 55 C.J. 764; 24 R.C.L. 195; 37 Tex. Jur. 299. A majority of the American courts that have followed this holding have not based such warranty upon an implied term in the contract between buyer and seller, nor upon any reliance by the buyer on the representation of the seller, but have imposed it as a matter of public policy in order to discourage the sale of unwholesome food. The Supreme Court of Michigan has stated the reason for the rule in Hoover v. Peters, 1869, 18 Mich. 51, as follows:

"And where articles of food are bought for consumption, and the vendor sells them for that express purpose, the consequences of unsoundness are so dangerous to health and life, and the failure of consideration is so complete, that we think the rule which has often been recognized, that such sales are warranted, is not only reasonable but essential to public safety. There may be sellers who are not much skilled, and there may be purchasers able to judge for themselves, but in sales of provisions the seller is generally so much better able than the buyer to judge of quality and condition, that if a general rule is to be adopted, it is safer to hold the vendor to a strict accountability than to throw the risk on the purchaser. The reason given by the New York authorities, in favor of health and personal safety, is much more satisfactory than the purely commercial considerations which take no account of these important interests. While the question has not perhaps been very often decided, the principle has been generally accepted among the legal writers, and we feel no disposition to recede from it."

In Wiedeman v. Keller, 1897, 171 Ill. 93, 49 N.E. 210, 211, the Supreme Court of Illinois adopted the same view and pointed out the distinction between sales of food and other sales, saying: "In an ordinary sale of goods, the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious, and may prove so disastrous to the health and life of the consumer, that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound, and fit for the use for which it was purchased."

In 1918 the New York Court of Appeals in Race v. Krum, supra [222 N.Y. 410, 118 N.E. 854, L.R.A.1918F, 1172], reaffirmed the principle in the following language: "This rule is based upon the high regard which the law has for human life. The consequences to the consumer resulting from consumption of articles of food sold for immediate use may be so disastrous that an obligation is placed upon the seller to see to it, at his peril, that the articles sold are fit for the purpose for which they are intended. The rule is an onerous one, but public policy, as well as the public health, demand such obligation should be imposed."

In Catani v. Swift and Company, 251 Pa. 52, 95 A. 931, L.R.A.1917B, pages 1272, 1273, it was said: "The general rule is that, where the sale of articles of food is for immediate consumption, there is an implied warranty that the food is wholesome and...

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