Liggett & Myers Tobacco Co. v. Cannon

• Decision Date: 25 August 1915
• Citation: 178 S.W. 1009,132 Tenn. 419
• Parties: LIGGETT & MYERS TOBACCO CO. v. CANNON.
• Court: Tennessee Supreme Court

178 S.W. 1009

132 Tenn. 419

LIGGETT & MYERS TOBACCO CO. v. CANNON.

Supreme Court of Tennessee.

August 25, 1915

Certiorari to Court of Civil Appeals.

Action by J. J. Cannon against the Liggett & Myers Tobacco Company. Judgment for plaintiff was reversed by the Court of Civil Appeals, and he petitions for certiorari. Affirmed.

John E Bell and Tansil & Lanier, all of Memphis, for petitioner.

Steen & Klewer, of Memphis, for defendant.

WILLIAMS J.

This cause is before us on a petition filed by J. J. Cannon for a writ of certiorari to review a judgment of the Court of Civil Appeals adverse to him, in that a judgment of the circuit court in his favor as plaintiff in this action was reversed and his suit dismissed, by the Court of Civil Appeals upon the motion for peremptory instructions interposed in the court below by the Tobacco Company.

Cannon purchased of a retail dealer in the city of Memphis a five-cent plug of Star-Navy chewing tobacco, the product of one of the factories of the defendant company, which tobacco had come into the possession of the retailer through intermediate wholesale dealer or dealers. Cannon bit a "chew" from the plug, and within a few minutes his mouth and lips began to smart. Examining the remnant of the plug, he found impressed and imbedded under its top wrapper or leaf cover a large black bug, which he had just bitten in two. He took the partly masticated quid from his mouth, and found "a black something mashed up in it"--a part of the bug he had chewed. Cannon's face was soon in a swollen condition; he became dizzy, and sent for a physician to alleviate his pain.

The theory of the plaintiff in his pleading and proof was that the bug had been negligently manufactured in the plug of tobacco by the defendant company.

The motion of the company for a directed verdict was based upon the grounds, first, that it owed the plaintiff no duty with reference to the tobacco, because of the absence of any contractual relation between it and plaintiff; and, second that no negligence on its part had been shown by the proof.

The general and true rule undoubtedly is that laid down in the recent case of Burkett v. Manufacturing Company, 126 Tenn. 467, 150 S.W. 421, that ordinarily the manufacturer of an article or commodity placed by him on the market for sale and sold by another to an ultimate consumer is not liable to the last-named for injuries due to defects or impurities in the article or commodity. But to this rule there are well-recognized exceptions, as is there set forth; one of these being foodstuffs. Boyd v. Coca Cola Bottling Works, 132 Tenn. 23, 177 S.W. 80.

The contention of plaintiff, Cannon, is that tobacco is to be classed as a food, and is thus to fall within an exception to the general rule. The Court of Civil Appeals, in substance sustained this contention, saying:

"While tobacco may not be strictly a food, it occurs to us that the same reasons which underlie the rule of liability in the case of sale for immediate use of drugs, foods, and beverages would apply in the case of tobacco, especially chewing tobacco. The reasons for the rule holding manufacturers of foods liable to purchasers from intermediate dealers, where such food is bought for immediate use, is that the putting of such articles on the market is dangerous to the public; and we think the same rule should be applied to the manufacturer of chewing tobacco. Such manufacturer sells it, knowing that it is to be taken into the human mouth, and that, if it is poisonous, it will as readily poison the user as if it were a food to be taken into the stomach. So we are of the opinion that the first reason given why the trial court should have directed a verdict is not well based."

We are unable to follow the Court of Civil Appeals, either in its argument or to its conclusion as to the status properly assignable to tobacco in this regard.

The term "food" includes everything that is eaten or drunk for the nourishment of the body--any substance that is taken into the body, which serves, through organic action, to build up normal tissues or to supply the waste of tissue. Com. v. Pflaum, 236 Pa. 294, 84 A. 842, Ann. Cas. 1913E, 1287; Wiley, Foods and Their Adulteration, 7.

We think it manifest that tobacco is not a foodstuff. It does not tend to build bodily tissue, and as to the average adult its tendency is widely thought to retard the building up of fatty tissue. In respect of its use by the young, it cannot be doubted that it tends to stunt normal development and even growth in stature. The desire or appetite for food is natural and common to all of the human race, while the desire for tobacco must be created.

"There is no nutriment in tobacco. It is merely a narcotic. It is not generally regarded as an article of food. It could hardly be said that an indictment for selling unwholesome food could be sustained by proof that defendant sold a bad or unwholesome cigar." So the sale of tobacco and cigars on Sunday is not authorized under a statute prohibiting the sale of any goods and wares on that day, except drugs or medicines, provisions, and other articles of immediate necessity. State v. Ohmer, 34 Mo.App. 115.

This court has held that tobacco in one form, the cigarette, is not a legitimate article of commerce, because possessed of no virtue, being bad inherently. Austin v. State, 101 Tenn. 563, 48 S.W. 305, 50 L. R. A. 478, 70 Am. St. Rep. 703, affirmed 179 U.S. 343, 21 S.Ct. 132, 45 L.Ed. 224.

The admission of foodstuffs among those classes of commodities excepted from the general rule of nonliability to the ultimate consumer on the part of the manufacturer is comparatively recent, and this was done because of the close analogy of such commodity to drugs. Thus, in Bishop v Weber, 139 Mass. 411, 1 N.E. 154, 52 Am. Rep. 715, it was said that the furnishing of provisions which endanger human life or health stands "clearly upon the same ground as the administering of improper medicines, from which a liability springs irrespective of any question of privity of...