Kelley v. John R. Daily Co.
| Decision Date | 10 May 1919 |
| Docket Number | 3973. |
| Citation | 181 P. 326,56 Mont. 63 |
| Parties | KELLEY v. JOHN R. DAILY CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Missoula County; R. Lee McCulloch Judge.
Action by Lillie M. Kelley against the John R. Daily Company. From a judgment for plaintiff and an order denying its motion for a new trial, defendant appeals. Judgment affirmed.
Wm. L Murphy, E. E. Hershey, and A. N. Whitlock, all of Missoula for appellant.
H. H. Parsons, of Missoula, and John G. Brown and Ed. Horsky, both of Helena, for respondent.
Hugh Kelley, the husband of plaintiff, purchased from the defendant six cooked and spiced pigs' feet for food for his family, consisting of himself, his wife, and two sons. On the day following the members of the family ate of the meat, and immediately thereafter the husband, the wife, and one son became ill. Plaintiff brought this action to recover damages, and prevailed in the lower court. Defendant appealed from the judgment and from an order denying its motion for a new trial.
Counsel for appellant discuss at great length, and with much learning, the several theories under which recovery may be permitted in an action for damages arising from the sale of impure food. It is the contention that this complaint does not state facts sufficient to make out a cause of action under any theory recognized by the law. If we had no governing statute in this state, the question of the sufficiency of the complaint might present an interesting subject of inquiry; but, in our judgment, much of the argument of appellant's counsel is beside the mark.
Chapter 130, Laws of 1911 (the Pure Food and Drug Act), makes it unlawful for any person, firm, or corporation to sell, or offer for sale, any article of food which is adulterated. The term "food" is defined to include "all articles used as food, drink, confectionery or condiment by man or animals." Section 1. An article of food is deemed to be adulterated "if it contains any proportion of a filthy, diseased, decomposed, putrid or rotten animal or vegetable substance," or "if it contains any added poisonous or other added deleterious ingredient." Section 2.
"Actionable negligence arises only from a breach of legal duty, and, to state a cause of action for damages resulting from negligence, it is necessary that the complaint disclose the duty, the breach, and the resulting damages." Fusselman v. Yellowstone Valley L. & I. Co., 53 Mont. 254, 163 P. 473, Ann. Cas. 1918B, 420. It is elementary that the duty, the breach of which is made the gist of the action, must be a duty which the defendant owes to the plaintiff.
In Conway v. Monidah Trust, 47 Mont. 269, 132 P. 26, L. R. A. 1915E, 500, we reviewed at length the authorities which have considered statutes of the same general character, and the discussion need not be repeated here. It is sufficient for the purpose of this case to say that the Pure Food and Drug Act is a general police regulation, which recognizes the fact that the sale of adulterated foodstuff is a constant menace of the health of the consuming public, and the duty enjoined by it upon the seller is such that a violation of it can affect the public health only through the individuals who are injuriously affected by partaking of such food. The duty imposed upon the vendor is one which extends to the public considered as a composite of individuals, and, if the plaintiff sustained some special injury by reason of defendant's violation of the statute, her right to recover cannot be questioned.
It is alleged in the complaint that at the time of the sale the defendant was engaged in business in Missoula county, selling at retail, to the public generally, meat and meat products for human consumption. These facts are sufficient to bring the case within the statute and to disclose the duty which the defendant owed to the public, including the plaintiff, to see to it that the food products offered for sale were not adulterated, within the meaning of that term as employed in the statute.
It is further alleged that the defendant sold and delivered to Hugh Kelley, for the immediate use of his family, including plaintiff, six cooked and spiced pigs' feet, which were adulterated, in that they "contained in and on them diseased, infected, putrid, decomposed, and poisonous acid and animal matter." By this allegation the defendant is charged with a violation of the statute and a breach of duty, and such violation is of itself legal negligence. The subject is not a new one. It has been before this court on many occasions.
By an Act approved September 13, 1887 (Extra Session 15th Territorial Legislature, p. 68), the amount of high explosives which any one was permitted to store in a city, town, or village was limited to 50 pounds. The violation of that statute resulted in the death of several members of the police force of Butte. It was held that the corporation guilty of the violation was subject to punishment as for a misdemeanor, and was likewise liable for damages in a civil action at the suit of the personal representative of one of the deceased firemen. Cameron v. Kenyon-Connell Com. Co., 22 Mont. 312, 56 P. 358, 44 L. R. A. 508, 74 Am. St. Rep. 602.
Section 8536, Revised Codes, requires the use of safety cages in certain mining operations, and it was held that the violation of the statute gives rise to an action for damages to an employé injured by the failure of the employer to observe the law. Monson v. La France C. Co., 39 Mont. 50, 101 P. 243, 133 Am. St. Rep. 549.
Section 4289 requires a railway company, in the operation of trains, to give certain designated signals on approaching crossings, and this court held that the failure of a railway company to observe the law constitutes negligence. Hunter v. Montana C. Ry. Co., 22 Mont. 525, 57 P. 140; Sprague v. Northern P. Ry. Co., 40 Mont. 481, 107 P. 412; De Atley v. Northern P. Ry. Co., 42 Mont. 224, 112 P. 76.
By section 8535, Revised Codes, the owner of a mining shaft within the limits of a city, town, or village, or within one mile of such limits, is required to protect the same by fence or covering. It was held that the owner who disregarded the statute was liable in damages to one injured by reason thereof, and that failure to observe the law is negligence per se. Conway v. Monidah Trust, above.
Section 1739, Revised Codes, limits the period of labor in underground mines to eight hours per day. Speaking of the application of the rule under consideration to the facts of that case, this court said:
Melville v. Butte-Balaklava Copper Co., 47 Mont. 1, 130 P. 441.
These cases sufficiently illustrate the principle involved. The statutes considered are all police regulations, designed to protect the health and safety of the people and promote the general welfare, and, in principle, are not distinguishable from the Pure Food and Drug Act. Meshbesher v. Channellene Oil & Mfg. Co., 107 Minn. 104, 119 N.W. 428, 131 Am. St. Rep. 441.
Prior to the enactment of chapter 130, above, there were in force at different periods of our history statutes obviously intended to protect the public health by regulating the sale of impure food, but in every instance the statute made the knowledge on the part of the seller of the impurity of the food sold the gist of the offense. Section 683, Penal Code 1895; Section 8496, Rev. Codes. Those statutes proceeded upon the theory that a dealer who sold impure food knowing it to be impure was guilty of perpetrating a fraud upon the public. Section 682, Penal Code 1895. In the enactment of the Pure Food and Drug Act, however, a different theory was adopted. The sale of adulterated food is absolutely prohibited. The seller is made the insurer of the purity of food products sold by him, and guilty knowledge on his part is no longer an ingredient of the offense. The obligation imposed by the statute is personal, and cannot be avoided by showing that the impure food was purchased from a foreign concern, and bore the stamp of approval of the government inspectors. Rinaldi v. Mohican Co., 171 A.D. 814, 157 N.Y.S. 561; Catani v. Swift & Co., 251 Pa. 52, 95 A. 931, L. R. A. 1917B, 1272. Under section 5115. Revised Codes, the warranty of food offered for sale extended only to the immediate purchaser, evidently upon the theory that it arose out of the contractual relations of the parties. Under chapter 130 the warranty extends to the public generally, and the liability of the vendor rests upon the principle that his original act in selling impure food was unlawful, and that he is responsible for the natural consequences of his wrongful act. But, in any event, the liability arises from a violation of the statute, and it is immaterial whether the foundation is laid in negligence or warranty.
The plaintiff alleges, further, that as the direct and proximate result of the sale of this impure food, and her partaking of it, she was made violently ill, to her great damage. The complaint discloses the duty, the breach, and the resulting damage, and is therefore sufficient under the authorities cited.
There is but one form of civil action in this state (section 6425 Rev. Codes), and a statement of the facts constituting the cause of action, with the other matters enumerated in section 6532, Revised Codes, is all that is required. ...
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