Nelson v. West Coast Dairy Co.

• Decision Date: 30 August 1940
• Docket Number: 27928.
• Parties: NELSON v. WEST COAST DAIRY CO. et al.
• Court: Washington Supreme Court

105 P.2d 76

5 Wn.2d 284

NELSON v. WEST COAST DAIRY CO. et al.

No. 27928.

Supreme Court of Washington

August 30, 1940

Department 2.

Action by Harold F. Nelson against the West Coast Dairy Company and others for damages alleged to have been sustained by plaintiff as result of undulant fever contracted from drinking milk produced and marketed by defendants. From a judgment for plaintiff against defendants West Coast Dairy Company, Peter Rodstrom and Selma Rodstrom, his wife defendants West Coast Dairy Company, Peter Rodstrom, and Selma Rodstrom, his wife, appeal.

Affirmed.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, judge.

Newton & Newton, of Everett, for appellants.

Little & Leader, of Seattle, and Charles A. Turner, of Everett, for respondent.

STEINERT Justice.

Plaintiff brought suit against West Coast Dairy Company, a corporation Peter Rodstrom and Selma Rodstrom, husband and wife, the copartnership composed of Charles Kempma and Albert Miller doing business as Kempma & Miller, and against Charles Kempma and Gwaantje Kempma, husband and wife, and Albert Miller, individually, to recover damages alleged to have been sustained by plaintiff as the result of undulant fever contracted from drinking milk produced and marketed by defendants. The action was tried to the court sitting without a jury, and resulted in findings in plaintiff's favor as against defendants West Coast Dairy Company and Peter Rodstrom and wife. As against the defendant copartnership and its constituent members, the action was dismissed. Judgment was entered accordingly, and defendants West Coast Dairy Company and Rodstrom and wife appealed.

Kempma & Miller operated a dairy farm in Snohomish County. The milk produced by its herd was sold to West Coast Dairy Company, operating a dairy in the city of Everett. The dairy company, in turn, daily sold a part of the milk to Peter Rodstrom, who conducted a milk route in Everett.

Respondent had purchased pasteurized milk from Rodstrom for a number of years prior to the spring of 1937. In April of that year, a sanipractor prescribed raw milk for respondent's eleven-year-old daughter, who was suffering from malnutrition, and Rodstrom was accordingly asked to leave one bottle of raw milk and one of pasteurized milk at respondent's home each day. Through some mistake or oversight, Rodstrom did not always fill the order exactly as given. During the first two weeks, he at times left one bottle of each kind of milk, as requested, but at other times he left two bottles of raw milk and none of pasteurized milk. From the latter part of April, and until the deliveries were discontinued in August, he left, each day, two bottles of raw milk only. Of this raw milk, respondent drank an average of three or four glasses a day.

Prior to June, 1937, respondent had never been afflicted with any serious illness, but on the contrary had always enjoyed good health. In the latter part of that month, however, he became seriously ill. He was forced to stop work for an initial period of approximately one week, then returned to his employment for about three days, and thereafter was unable to work for a period of approximately six months, from June 29, 1937, to December 23, 1937. Since the latter date, his physical condition has permitted him to work parttime only.

Respondent continued to drink raw milk delivered by Rodstrom until August, 1937, when his illness was diagnosed as undulant fever. Blood tests made at that time disclosed a high degree of infection with that disease. A blood test made August 29, 1939, shortly Before the trial of this action, disclosed a degree of infection sufficiently low to class the ultimate result as doubtful. Appellants concede that respondent was suffering from undulant fever at the time of his original ailment, but deny that the illness was contracted through the consumption of milk provided by them.

Ordinance No. 2440 of the city of Everett, relating to, and regulating, the production, sale, and distribution of milk and milk products, provides, among other things, that it shall be unlawful for any person to sell for human consumption in that city any milk drawn from cows suffering from any disease, or milk containing pathogenic bacteria, or disease-producing germs, or milk which is unwholesome or impure. Respondent's cause of action is predicated not only on allegations charging appellants with violation of this specific ordinance, but also on the common-law doctrine governing liability for negligence or breach of warranty in the sale of food that is unfit for immediate human consumption.

Respondent had alleged in his complaint that the milk consumed by him was produced by the herd of Kempma & Miler, and that the milk was unfit for human consumption because it had been drawn from cows infected with Bang's disease. The proof, however, disclosed that the milk which was delivered to respondent had been, in almost equal part, obtained by appellants from a herd owned by one Carl Hansen; that Hansen's herd had at times been infected with the same disease; that the raw milk from both sources, though bottled and packed in cases at the respective farms, was intermingled, by cases, when it reached the West Coast Dairy Company; and that deliveries to Rodstrom, and in turn by him to respondent, were made indiscriminately from milk provided by both farms.

At the conclusion of the evidence, the trial court, in an oral decision, expressed the view that the most reasonable conclusion to be drawn from the evidence was that respondent had contracted his ailment from the milk consumed by him. However, the court expressed the further view that '* * * there is at least as much ground to believe that he [respondent] contracted that fever from milk that came from the Hansen ranch as to say it came from milk that came from Kempma & Miller.'

For that reason, the court concluded that respondent had not sustained the burden of proof as to defendants Kempma & Miller, and accordingly held that those defendants should be dismissed for want of proof. As to the remaining defendants in the case, West Coast Dairy Company and Rodstrom and wife, appellants herein, the trial court was of the opinion that respondent had sustained the burden of proving that his illness was the proximate result of the consumption of raw milk sold by them. Upon that basis, findings were made and judgment was entered against the parties now appealing.

Appellants' first contention is that the dismissal of Kempma & Miller required the dismissal of the remaining defendants, that is, the appellants herein. This contention is based upon the fact that throughout his complaint, even in those paragraphs directed immediately against the defendants other than Kempma & Miller, respondent had specifically alleged that the milk from which he had contracted undulant fever came from the Kempma & Miller herd.

Were the dismissal of Kempma & Miller based on insufficiency of the evidence to show impurity of any and all milk sold by appellants, regardless of its source, the result contended for by appellants would clearly follow. That, however, was not the basis of the trial court's holding. We quote from the court's oral decision: 'The herd of Kempma & Miller, I take it is established, was afflicted or infected with Bang's disease, at such time and over such period of time and it is well-established by fairly preponderating proof that the milk which they sold to the West Coast Dairy Company and which was sold to Rodstrom and which he sold to plaintiff [respondent], carried the germ of this disease. * * *'

It thus appears that the trial court was of the view that the Kempma & Miller herd was infected with the disease, and that the milk from that herd carried the germ of that same disease. But since the court could not say positively that respondent contracted the fever from the Kempma & Miller milk rather than from that produced by another herd similarly afflicted, it felt compelled to dismiss those particular defendants. Whether or not the court ruled correctly in that respect, we are not called upon to decide, for respondent has not appealed from that order.

That conclusion of the trial court, however, is in no manner inconsistent with its further conclusion that West Coast Dairy Company and Rodstrom sold infected milk to respondent, and that as a proximate result of the consumption of such milk Nelson contracted undulant fever. In the opinion of the trial court, the impurity of the milk produced by Kempma & Miller was established by a preponderance of the evidence. But because the proof further showed that milk obtained by appellants from another source was likewise infected, the trial court was of the opinion that the burden of proving that respondent had contracted his illness through the consumption of milk produced by Kempma & Miller had not been sustained. That additional proof, however, in no way negatived the liability of appellants, who sold and distributed the milk.

Where articles of food are sold for domestic use and immediate consumption, the law implies a warranty that such articles are sound, wholesome, and fit to be consumed, and if the consumer is made sick through the consumption of such food, he has a right of action against the vendors thereof, either for breach of implied warranty, or for negligence; and in such action it is unnecessary either to allege or to prove scienter. Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633, 48 L.R.A., N.S., 213, Ann.Cas.1915C, 140; Flessher v. Carstens Packing Co., 93 Wash. 48, 160 P. 14; Davis v. Van Camp Packing Co., 189 Iowa 775, 176 N.W. 382, 17 A.L.R. 649.

This subject has been frequently dealt with by the various courts of this country, with the result, as stated in...