Lovich v. Salvation Army

• Decision Date: 30 June 1947
• Citation: 75 N.E.2d 459,81 Ohio App. 317
• Parties: LOVICH v. SALVATION ARMY, Inc.
• Court: Ohio Court of Appeals

75 N.E.2d 459

81 Ohio App. 317

LOVICH v. SALVATION ARMY, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga.

June 30, 1947

Harrison, Thomas, Spangenberg & Hull, of Cleveland, for plaintiff appellee.

McKeehan Merrick, Arter & Stewart, of Cleveland, for defendant appellant.

HURD Presiding Judge.

In this action originating in the Court of Common Pleas of Cuyahoga County, now before this Court on appeal on questions of law a recovery was had by plaintiff in the sum of $2,000 against the defendant, the Salvation Army Inc., for personal injuries and illness as the result of an attack of typhoid fever suffered while the plaintiff was a resident of a home for working girls known as 'Evangeline Residence' conducted by the Salvation Army. The case was tried on a second amended petition containing the following specifications 'Plaintiff says that at the time herein referred to the defendant was reckless and negligent in the following respects to-wit: * * *

'(3) In serving to the plaintiff, food and drink which was contaminated with typhoid infection.

'(4) In serving food and drink which was unwholesome and infected and was prepared, served and sold in violation of the so-called pure food laws of Ohio. * * *

'(7) In providing impure, infected and dangerous food drink for plaintiff in violation and breach of its promise and/or implied warranty that the food provided served and sold in said restaurant would be fit for human consumption and free from dangerous or harmful infections or bacterial contamination.

'As a direct result of the negligent acts hereinBefore set forth, and of the breach of the implied warranty that the food served and sold would be fit for human consumption and free from impure substances and bacterial contamination, the plaintiff became infected with typhoid bacilli, was rendered seriously ill * * *.'

Contained in the answer are allegations of defendant that it is incorporated as a religious and charitable organization not for profit and that the plaintiff was a beneficiary of its charity. Defendant denied generally any negligence on its part and denied specifically that it was negligent or careless in the employment of a person to serve food who was a typhoid germ carrier as alleged in the amended petition.

A number of errors are assigned but the principal errors claimed are: (1) That the Common Pleas Court erred in instructing the jury to return a verdict for plaintiff appellee and in submitting to the jury only one form of verdict, namely, a verdict for plaintiff appellee; (2) that the Common Pleas Court erred in overruling defendant appellant's motion for judgment at the close of all the evidence.

We shall consider these assignments of error in the order named.

There was evidence that plaintiff was one of 350 young women residing in the home and one of the 18 sufferers in the typhoid fever epidemic that broke out in the home in January, 1944.

The evidence bearing on the issue of the cause of the illness of plaintiff and other sufferers was the testimony of one Dr. Theo. G. Duncan, Chief of the Subdivision of Communicable Diseases of the Division of Health of the City of Cleveland, who testified that an epidemiological survey was made under his direction. He described the measures taken to ascertain the source of infection which resulted in the identification of one Martha Brown as a typhoid carrier, who was in the employ of defendant in the kitchen, having been hired September 14, 1943. This identification was made after a series of microscopic tests. Concerning Martha Brown, Dr. Duncan testified in part as follows:

'Q. Did your investigation reveal what the nature of her work was at the Evangeline Home? A. Yes.

'Q. What was it? A. As I remember she washed dishes. As I recall she went to work there about the 13th of September 1943 and her duties as I remember from what I got from the hospital, through the institution and herself, she was just simply a dishwasher up until a certain date in December, when she was given an additional job of making orange juice. That was about the 15 of December, some other employee was taken out of there for some reason and she had an additional job, which I learned later; I didn't find that out at first.

'Q. Did you find that she then, since she had started making the orange juice, continued at that until she left the employment? A. Her history was that for about ten days she had the full responsibility in the morning of making the orange juice, and then she was given some help; she didn't like it, she said the work was too hard for her, and she left. When I heard about this was on the 16 of January and I found her at home.

* * *

* * *

'Q. Coming back to Martha Brown, did you run a similar stool test on her? A. Yes, we took three; we took two at home and both of them were positive, and she had no temperature, showed no illness whatsoever for several days, and I took her to the hospital and we took three or four other cultures and they were all positive for typhoid organism.

'Q. Assuming, Doctor, that Martha Brown did prepare the orange juice subsequent to the 15 of December, 1943 for a time doing it herself without any help and for a time was assisted by someone else, and that continued up through the middle of January of 1944. A. That's right.

'Q. Assume further, that all 18 girls who later contracted typhoid fever as you have described their cases to us, included orange juice as part of their breakfast during this period from and after the 15 of December, 1943; assuming that they then contracted the disease on or about the dates that you have indicated, within the range that you have indicated; now assuming those facts and further, doctor, that you found the plumbing and water supply at this residence was quite all right and showed no typhoid source contamination; assuming all those factors, doctor, do you have an opinion--and assuming furthermore, that you made an investigation of the food handlers that worked at the Evangeline Home during the period subsequent to the 1st of November, 1943, and that your investigations showed you that only one of those food handlers was a typhoid carrier, and further, that that carrier was Martha Brown, who had assisted in the preparation of the orange juice as described before ; assuming all those facts, doctor, and assuming finally the fact that you determined positively that she was a typhoid carrier, will you please tell us whether or not you have an opinion as to the cause of the typhoid fever that these 18 persons contracted? Do you have an opinion, doctor? A. I have an opinion.

'Q. All right, please tell the jury what that is. A. The opinion is that this girl, who was harboring the organism typhoid fever, which was definitely proved by laboratory tests, was able to contaminate food or drinks that some of these individuals ate or drank, and in that way typhoid is spread by hand to mouth. In other words, you contaminate something that somebody else takes, and the reason we felt she did not contaminate more, it was just when she squeezed the orange squeezer, she probably contaminated it with some of the contamination on her hands, and the first one that got the orange juice got the organism from her hands, some of them got a certain amount, and it is our reason for believing it only affected a certain number, it washed off her hands.

'Q. Do you believe, then, doctor, that the orange juice these girls drank was the source of the contamination? A. I do.

'Q. And do you believe that the contamination was the presence of typhoid bacilli in the orange juice? A. I do. * * *'

The foregoing testimony is the only direct evidence in the record in respect of the cause of the epidemic. A careful analysis thereof discloses, (1) that the doctor expounds a theory developed by him, based upon his investigations conducted after the outbreak of the epidemic, and (2) an opinion expressed upon an assumed hypothesis.

It will be noted that while the hypothesis excluded the plumbing and water supply, other hypotheses are not excluded such as possible contacts of one or more of the residents with persons infected with the disease outside of the home. We think it is a matter of common knowledge that typhiod may be communicated by personal contact.

It is well settled in Ohio that expert testimony may be received by the court to assist the jury in arriving at a just and correct verdict. Insofar as such testimony aids the members of the jury in their deliberations it should be used. However, the members of the jury are the sole judges as to what weight the opinion of the expert is entitled to receive at their hands and should be instructed to give such testimony just such weight as they in their judgment deem it entitled to receive.

With respect to hypothetical questions, the opinions of experts based upon facts assumed are of no value unless the assumed facts forming the basis of such opinions are supported by the evidence and are true, and if the jury finds that the assumptions are not true, then they should disregard the answers to such questions. Such opinion evidence is but to supplement and not to supplant the judgment of the jury. There is a wide difference between unrebutted factual evidence and unrebutted opinion evidence, and in the instant case the court did not permit the jury, under proper instructions, to consider this evidence but instead directed a verdict for the plaintiff.

An issue was made by the testimony of the expert on the question of whether or not the orange juice prepared by Martha Brown if it was prepared by her, was the source of the infection. An issue was also made as to whether or not the Evangeline Residence served contaminated food, as to whether or not such serving was the...