Mellace v. John P. Squire Co.

• Decision Date: 10 September 1940
• Citation: Mellace v. John P. Squire Co., 306 Mass. 515, 29 N.E.2d 26 (Mass. 1940)
• Parties: ETTA MELLACE v. JOHN P. SQUIRE COMPANY(and eight companion cases [1]).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 515

29 N.E.2d 26

ETTA MELLACE v. JOHN P. SQUIRE COMPANY(and eight companion cases ^[1]).

Supreme Judicial Court of Massachusetts, Suffolk.

September 10, 1940

December 6, 1939.

Present: FIELD, C.

J., DONAHUE LUMMUS, COX, & RONAN, JJ.

Negligence, In sale of food, Violation of law.Food.Sale, Of food.A finding of negligence of a food dealer through violation of G.L. (Ter.

Ed.) c. 94, Section 150, or otherwise toward a person made ill by eating unwholesome chicken was not warranted by evidence merely that the chicken, bearing the dealer's label, was part of a box of undressed cold storage chickens sold by him to a retail dealer, who in turn sold it on the same day to such person.

NINE ACTIONS OF TORT.Writs in the Superior Court dated March 4, 1936.The actions were tried before Walsh, J.

P. Mondello, for the plaintiffs.C. W. O'Brien, for the defendant.

DONAHUE, J.These are nine actions of tort in which the plaintiffs seek to recover damages for personal injuries which they allege were received by them, owing to the negligence of the defendant from eating unwholesome food which one of the plaintiffs had purchased from a retail dealer to whom the food had been sold by the defendant.

The cases were tried together in the Superior Court before a jury.At the close of the evidence the judge directed a verdict for the defendant in each case and reported the cases to this court on a stipulation of the parties that, if the direction of verdicts for the defendant was right, judgment for the defendant should be entered in each case, and, if wrong judgments should be entered for the plaintiffs in amounts stated.

There was evidence that Etta Mellace, one of the plaintiffs, purchased two chickens from a retail dealer at about nine o'clock in the evening of December 24, that the chickens were placed in an "ice chest" in her home, that at ten o'clock in the morning of December 25"she dressed, cut up and washed the chickens" and, as she did so, noticed "peculiar discoloration marks on the insides but thought nothing about it at the time."According to the testimony the nine plaintiffs(none of whom had eaten anything since five o'clock in the afternoon of the day before) at about two o'clock in the afternoon of December 25 sat down to dinner.All nine plaintiffs partook of the chicken and all nine became ill during the evening (seeJohnson v. Kanavos,296 Mass. 373 , 375, and cases cited).Two young children who ate none of the chicken were not made sick.A physician testified that the sickness of the plaintiffs was "caused by food poisoning and might have [been] caused by eating the chickens"(seeBarringer v. Ocean Steamship Co. of Savannah,240 Mass. 405 , 408;compareGracey v. Waldorf System, Inc.251 Mass. 76 78).Two of the plaintiffs testified that they"noticed a peculiar taste while eating the chicken but neither said anything about it to the others"(seeBergantino v. General Baking Co.298 Mass. 106 , 108).

In order to recover, the plaintiffs were not obliged to exclude every other cause of their illness than the unwholesomeness of the chicken; it was enough if they showed that to be the probable cause.Monahan v. Economy Grocery Stores Corp.282 Mass. 548 , 550.There was evidence warranting such a finding.

The plaintiffs seek to recover on the ground of negligence of the defendant, not on the theory of a breach of warranty.The mere fact that the chickens were unwholesome when eaten would not justify a finding that the defendant was negligent.The doctrine of res ipsa loquitur does not here apply.Blanchard v. Kronick,269 Mass. 464 , 465.

The only evidence connecting the defendant with the chickens was that they"bore the defendant's label" and that the retail dealer who sold them to one of the plaintiffs had on the same day purchased them from the defendant as part of a box of twelve undressed frozen or cold storage chickens.There was no evidence indicating where the defendant obtained the chickens or how long it had them, or under what conditions it kept them, or that there was any way by which, if they were unwholesome at the time they were sold to the retail dealer, such a condition could be...