Leonardi v. A. Habermann Provision Co.
| Decision Date | 26 July 1944 |
| Docket Number | 29723,29728.,29727,29726,29724,29725 |
| Citation | 56 N.E.2d 232,143 Ohio St. 623 |
| Parties | LEONARDI v. A. HABERMANN PROVISION CO. (three cases). SANGUEDOLCE v. A. HABERMANN PROVISION CO. (three cases). |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Pork infested with trichinae spiralis is 'infected' within the meaning of the Ohio pure food laws, and the sale of such pork for human consumption, even though the seller has no knowledge that it is so infected, violates the statute and is negligence as a matter of law.
2. In an action to recover damages for personal injuries through the alleged negligence of another, it is not error to refuse to give a charge requested to be given before argument from the language of which special request a jury might reasonably infer that the court assumed the existence of material facts that were in dispute.
3. If in an action for damages arising from the sale of infected or unwholesome meat in violation of the pure-food statutes of the state, there is presented for the determination of the jury an issue as to whether infected meat was sold and also an issue as to whether the plaintiff was guilty of contributory negligence in eating such meat without proper preparation, and there is a verdict for the defendant, error in the charge of the court as to the issue of whether the meat was infected does not, under the two-issue rule as announced in the case of Sites v. Haverstick, 23 Ohio St. 626, require a reviewing court to reverse a judgment rendered upon such verdict.
Appeals from Court of Appeals, Cuyahoga County.
Benjamin Sanguedolce, one of the plaintiffs claimed that on Saturday, October 19, 1940, he purchased several pounds of raw pork shoulders, sometimes known as pork butts, at the meat stand of the defendant in Central Market, Cleveland. He took the meat home where it was prepared for the family Sunday dinner by his mother-in-law, Ignazia Leonardi, a plaintiff in one of these actions, and was eaten the day after its purchase.
Mrs. Leonardi testified, and her testimony is uncontradicted, that she first ground the pork into sausage, seasoned it, and then put the sausage into skins, hung it up in the attic until the next morning when she placed it in a frying pan containing about one inch of water and oil. The frying pan was put on the fire and when the water reached the boiling point she put the sausage in the water where it remained for a half hour until the sausage was brown. She then put it in tomato sauce which she had prepared and the whole was cooked another half hour in a kettle over a flame.
All of the several plaintiffs ate the sausage and all became violently ill. Ignazia Leonardi showed the first symptoms of at tack nine hours after she ate a portion of the sausage; Anthony Leonardi showed symptoms in 10 hours; Benjamin Sanguedolce in 11 hours; Natalen Leonardi in 12 hours; and Virginia Sanguedolce in about 24 hours. The attack, and illness following in each case, was diagnosed as trichinosis, and an examination of the meat showed the presence of trichinae larvae.
The defendant denied that it sold the pork to Sanguedolce, as claimed by him. The defendant's evidence was to the effect that there were 100 stalls in the Cleveland Central Market, substantially alike, at 31 of which fresh pork was sold at that time. Sanguedolce testified that he bought the pork at stall No. 9 which had in front of it a large sign approximately two and one-half feet by three feet, bearing the defendant's name, but the evidence of the defendant was that it had no sign at its place of business on the date in question and that no sign was displayed until a later date. The record further shows that the illness of plaintiffs might have been attributed to broccoli which they had purchased elsewhere and had eaten. Suspicion was not directed to the pork as the cause of the illness until about two weeks after the attacks. There was also evidence, consisting of a hospital admission record, to the effect that certain of the plaintiffs had eaten raw sausage two weeks previous to admission to the hospital, and that plaintiff Benjamin Sanguedolce had been previously hospitalized with a diagnosis of trichinosis following the ingestion of uncooked pork.
Sanguedolce's veracity was sharply attacked. His deposition had been taken before trial, wherein he testified that while in the market he met a man he had formerly known who witnessed his purchase of the pork, but that he did not know his name. On trial he testified that his name was Mario Guzzo; admitted that he had known his name at the time his deposition was taken; and that he falsified when he said he did not know Guzzo's name. Guzzo was produced as a witness and testified that he and Sanguedolce had known each other for nine years and that he was present when Sanguedolce purchased the pork at stall No. 9.
In general, the petitions of the plaintiffs alleged that the defendant sold the meat intended for human consumption; that it was so diseased and corrupted with trichinae parasites that it was wholly unfit for human consumption; and that the meat was sold in violation of the provisions of the Ohio pure food laws.
The defendant in its answers denied that it sold the meat in question and denied that it was diseased or unfit for human food. Contributory negligence upon the part of plaintiffs in failing to properly cook the meat became an issue during the trial of the case.
The six cases were tried together to one jury. The trial court refused to give a special charge relating to liability for the sale of unwholesome or diseased meat, which charge was requested by the plaintiffs before argument. A general verdict was returned and judgment entered for the defendant in all the cases.
Each of the plaintiffs filed an appeal on questions of law to the Court of Appeals where the judgments were affirmed.
These cases are now in this court for review by reason of the allowance of motions to certify the records.
Harrison & Marshman, of Cleveland, for appellants.
McKeehan, Merrick, Arter & Stewart, C. M. Horn, and Thomas V. Koykka, all of Cleveland, for appellee.
The plaintiffs in these cases predicated their right to recover on the alleged violation by the defendant of the pure-food statutes of this state. The sections involved are as follows:
Section 5774. 'No person, within this state, shall * * * offer for sale, sell or deliver, or have in his possession with intent to sell or deliver, a drug or article of food which is adulterated within the meaning of this chapter.'
Section 5775. '* * * The term 'food', as used in this chapter, includes all articles used by man for food, drink * * or condiment, whether simple, mixed or compound. * * *'
Section 5778. 'Food, drink, confectionery or condiments are adulterated within the meaning of this chapter * * * (5) if it consists wholly, or in part, of a diseased, decomposed, putrid, infected, tainted or rotten animal or vegetable substance or article, whether manufactured or not or in the case of milk, if it is the product of a diseased animal * * *.' (117 Ohio Laws, p. 157.)
Section 12758. 'Whoever * * * offers for sale or sells a drug, article of food, or flavoring extract which is adulterated or misbranded as the terms * * * 'food,' * * * 'adulterated' * * * are defined and described by law * * * shall be fined not less than twenty-five dollars nor more than one hundred dollars * * *.'
Section 12760. 'Whoever sells, offers for sale or has in possession with intent to sell, diseased, corrupted, adulterated or unwholesome provisions without making the condition thereof known to the buyer, shall be fined not more than fifty dollars or imprisoned twenty days, or both.'
The plaintiffs claimed that the defendant sold the pork infected with trichinae, thereby violating one or more of the above-mentioned sections of the statute and incurring absolute civil liability because of its consequent negligence as a matter of law. In the course of the trial, the defendant, as a matter of defense, introduced evidence to show that all meat sold by it had been inspected under government authority and that defendant had complied with all legal requirements relating to the sale of meat. It also introduced expert evidence to the effect that the first symptoms of trichinosis may come on in a few hours or may be delayed as long as two weeks, but that ordinarily the symptoms develop in from six to fourteen days after eating meat infected with trichinae.
In view of this evidence and the law of the case as claimed by the plaintiffs, they requested the court to submit to the jury before argument a special written request to charge, which the court refused to give. The requested charge was as follows:
'I say to you that under the laws of Ohio it is unlawful to sell meat which is unwholesome or diseased; and if you find that the defendant sold meat to Ben Sanguedolce which was unwholesome or diseased by reason of the presence of trichinae, that was negligence as a matter of law; and that would be true irrespective of any federal rules or inspections and also irrespective of state or city inspections, and also irrespective of the question as to whether the defendant did know or could know that the meat contained such trichinae parasites.'
The plaintiffs' sole claim of error in this case is based upon the refusal of the court to submit the requested charge as above quoted. If the charge was in proper form and correctly stated the law, it was prejudicial error upon the part of the trial court to refuse to give it. Section 11420-1 (5), General Code; 39 Ohio Jurisprudence, 1027, Section 310 and 1050, Section 325; Washington Fidelity National Ins. Co. v. Herbert, 125 Ohio St. 591, 183 N.E. 537, and ...
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