Johnston v. Swift & Co., Inc., of Illinois

• Decision Date: 16 October 1939
• Docket Number: 33813
• Citation: 186 Miss. 803,191 So. 423
• Parties: JOHNSTON v. SWIFT & CO., INC., OF ILLINOIS
• Court: Mississippi Supreme Court

191 So. 423

186 Miss. 803

JOHNSTON v. SWIFT & CO., INC., OF ILLINOIS

No. 33813

Supreme Court of Mississippi, Division B

October 16, 1939

APPEAL from the circuit court of Lawrence county HON. J. C. SHIVERS Judge.

Action by G. E. Johnston against Swift & Co., Inc., of Illinois to recover damages for illness caused by eating sausage manufactured and sold by defendant. Judgment for defendant and plaintiff appeals. Affirmed.

Affirmed.

Henry Mounger, of Columbia, and C. E. Gibson, of Monticello, for appellant.

Sunday purchase will not bar recovery based on negligence.

Whitley v. Holmes, 144 So. 48, 164 Miss. 423; Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534; Gross v Miller, 93 Iowa 72, 61 N.W. 385, 26. L.R.A. 605.

The evidence is sufficient to submit case to the jury. The manufacturer of food products is liable to the ultimate consumer, even though there is no privity of contract between them. This liability is based upon the theory that a manufacturer owes "a duty of care to the purchaser, knowing the purpose for which its goods were manufactured, and the risk of injury to a purchaser or consumer, " from the consumption of food unfit for human use. The plaintiff makes out a prima facie case by showing that as a result of eating the defendant's food, he became ill. It is not necessary for him to specifically establish negligence by the defendant manufacturer in the making, canning, or distributing of the food product causing the injuries. The manufacturer, on the other hand, may introduce in evidence facts showing the exercise of the utmost care in the making and packing of the food, and although unable to trace the particular article of food alleged as impure, a sufficient basis is thereby laid for the jury to infer a lack of negligence. It is then for the jury to weigh this inference against the presumption of negligence created by the plaintiff's showing that he was injured by a defective food product manufactured by the defendant.

Pillars v. Reynolds Tobacco Co., 78 So. 365, 117 Miss. 490; Blount v. Houston Coca Cola, etc., 185 So. 241.

The general rule is that the manufacturer of food, beverages, condiments, or drugs must exercise great care to see that it does not contain poisonous substances and for a violation of the law can be sued, either for breach of implied warranty, or for negligence. This case is based upon the negligence of the appellee in manufacturing and placing upon the market sausage that were unwholesome and unfit for human consumption because of the negligent act of it in allowing the sausage to become infected with poisonous matter at the time the same were being manufactured.

Pillars v. R. J. Reynolds Tobacco Co. et al., 78 So. 365, 117 Miss. 490.

In 60 C. J. 1131, we find the following: "85. B. Injuries received or inflicted on Sunday.--1. Resultant rights and liabilities.--By the great weight of authority it is held that a person injured or damaged while violating a Sunday law is not barred from recovery by such illegal conduct on his part, as such violation is not the efficient or proximate cause of the injury, or as essential element of the cause of action; and as the time when the injury was inflicted is only an incident, and not the foundation of the action."

25 R. C. L. 1450; Whitley v. Holmes, 144 So. 48, 164 Miss. 423.

The declaration alleges, and we think the proof clearly shows that the appellee negligently manufactured and put on the market, for human consumption, food that contained poisonous animal matter and if it is liable at all on account of this negligent act for the injuries which the appellant sustained, it is on account of this act of negligence which certainly could have no causal connection with the sale of said sausage on Sunday. If the appellee was negligent in the manufacturing of the sausage in question and if it put on the market for human consumption food which contained poisonous matter, it is liable for this act of negligence regardless of whether the appellant came into the possession of the sausage complained of on Sunday or on a secular day.

Gerretson v. Rambler Garage Co., 40 L.R.A. (N.S.), 457.

We submit that the evidence in this case excludes the probability that the deleterious matter complained of obtained entrance into the sausage after the can containing it was opened by the appellant and this being true, the only conclusion left would be that the deleterious matter obtained entrance into the sausage at the time it was manufactured by the appellee, and because of it having put upon the market sausage which was unfit and unwholesome for human consumption, it was liable for this act of negligence.

Armour & Co. v. McMillain, 155 So. 218, 171 Miss. 199.

Heidelberg & Roberts, of Hattiesburg, for appellee.

The violation of the Sunday laws existing in Mississippi prohibits recovery here.

A causal connection exists between the Sunday law violation and the alleged negligent acts.

Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97; Lowenburg v. Klein et al., 125 Miss. 284, 87 So. 653; McGrath v. Merwin, 112 Mass. 467; 17 Am. Rep. 119; Crafty v. City of Bangor, 57 Me. 423, 2 Am. Rep. 56.

It is our view that the trial court would have been justified in sustaining the motion for a directed verdict alone on the theory that the claim could not have arisen except for the violation of the Sunday law, and that there was a direct causal connection between the law violation and the alleged injury.

The evidence furnished by plaintiff was insufficient to justify recovery.

Cudahy Packing Co. v. Baskin, 155 So. 217, 170 Miss. 834; Blount v. Houston Coca-Cola Bottling Co. et al. (Miss.), 185 So. 241; Criger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S.W. 155; Jackson Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791; Cudahy Packing Co. v. McPhail, 155 So. 163, 170 Miss. 834.

The Supreme Court of this state has said of the doctrine of res ipsa loquitur: "The rationale of this doctrine is that in 'some cases, the very nature of the accident, of itself and through the presumption it carries, supplies the requisite proof.' It is applicable 'where under the circumstances shown, the accident presumably would not have happened if due care had been exercised.' Its essential import is that, on the facts proved, the plaintiff has made out a prima facie case, without direct proof of negligence."

Alabama & Vicksburg R. R. Co. v. Groome, 97 Miss. 201, 52 So. 703; Columbus & G. R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; J. C. Penny Co. v. Evans, 160 So. 779, 172 Miss. 900; Wheeler v. Laurel Bottling Works, 71 So. 743, 111 Miss. 442.

We cannot believe other than that is would be a dangerous precedent to hold that just because someone became sick he could thereby recover from some manufacturer of one of the food products eaten by him just prior to his illness. The courts generally hold that just because an individual is taken sick, this does not of itself establish negligence on the part of the packer, or bottler, or manufacturer.

20 R. C. L. 194; Lamb v. Boyles, 192 N.C. 542, 135 S.E. 464; Sheffer v. Willoughby, 163 Ill. 518, 45 N.E. 253; Ash v. Childs Dining Hall Co., 231 Mass. 86, 120 N.E. 396; Watts v. Ouachita Coca-Cola Bottling Co., 166 So. 151.

The most that can be said of the testimony furnished by the appellant is that he ate sausage with other foods for his breakfast; that he thereafter became sick, and that he assumed that it was the sausage that caused his illness, and made this statement to his attending physician; that the physician examined him, without being able to determine what caused the illness. All of the testimony is indefinite as to character. The scintilla of evidence rule does not prevail in the State of Mississippi, and under no stretch of the imagination can it be said that there is sufficient testimony to put this case to the jury.

Columbus & G. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Yazoo & M. V. R. R. Co. v. Lamensdorf et el., 180 Miss. 426, 177 So. 50.

OPINION

McGehee, J.

This suit is for damages on account of the illness of the appellant alleged to have been suffered because of having eaten some oil sausage manufactured and sold ill sealed cans by the appellee. The declaration, as originally filed, sought recovery upon the alleged breach of an implied warranty as to the wholesomeness and fitness of the food for human consumption, but there are further averments showing that the sale of the sausage was made by the retail merchant to the appellant on Sunday in violation of Section 1132 of the Mississippi Code of 1930. Hence, no recovery could be had on the implied contract arising out...