Prinsen v. Russos

• Decision Date: 08 November 1927
• Citation: 194 Wis. 142,215 N.W. 905
• Parties: PRINSEN v. RUSSOS.
• Court: Wisconsin Supreme Court

194 Wis. 142

215 N.W. 905

PRINSEN

v.RUSSOS.

Supreme Court of Wisconsin.

Nov. 8, 1927.

Appeal from a Judgment of the Circuit Court for Dane County; A. G. Zimmermann, Circuit Judge. Affirmed.

Action by Anna M. Prinsen against Louis Russos. From a judgment dismissing plaintiff's complaint, she appeals. Affirmed.--[By Editorial Staff.]

The complaint alleged that defendant in August, 1925, conducted a restaurant in Madison; that, because of faulty care in handling and improper cooking of a ham made up by defendant into sandwiches, and because defendant negligently sold and delivered such sandwiches while in an infected condition, plaintiff was injured from eating one of such; that such had been purchased for and in her behalf by her husband, under the implied warranty by defendant that such sandwich was fit for human consumption; that such infected condition could have been avoided by the use by defendant of ordinary skill and care in cooking of the ham.

The court charged the jury on the ground of negligence only, saying that the plaintiff, to sustain her cause, must prove: (a) That the defendant sold, or caused to be sold, to the plaintiff or some member of her party for their consumption ham sandwiches infected with larvæ, from which the disease of trichinosis is or may be developed, and that plaintiff, eating of such sandwiches, contracted the disease therefrom; (b) that there was negligence and want of ordinary care by defendant in so selling such infected ham sandwiches; and (c) that such negligence and want of ordinary care was the proximate cause of plaintiff's injury and damage; also that, if plaintiff failed to satisfy them on any one of the said three propositions, they must find for the defendant.

Plaintiff made no request to have the cause submitted on any different theory. There had been submitted to the trial court at the commencement of the trial a brief on her behalf setting out that, under the complaint, there were presented two grounds: First, an implied warranty of fitness of the food sold by the defendant; and, secondly, negligence in the preparation of the food in question, and several authorities were cited as to the implied warrant.

The jury by general verdict found for the defendant, and that the plaintiff had no cause of action.

After verdict, plaintiff made a motion for a new trial, on the ground, among others, that the court erred in not submitting to the jury the theory of an implied warranty of the sandwiches as wholesome and fit for human consumption, and as was set forth in the brief above mentioned. Such motion being denied, judgment was entered dismissing the plaintiff's complaint, with costs.

Plaintiff appeals.

Martin & Kelley, of Fond du Lac, for appellant.

W. L. Woodward, Ralph E. Axley, and Schubring, Ryan, Clarke & Petersen, all of Madison, for respondent.

ESCHWEILER, J.

The evidence discloses that plaintiff, her husband, and their friends, Mrs. and Miss Talbert, while on an automobile tour, entered defendant's restaurant. As they were leaving, their attention was attracted by a ham there displayed, and suggestion was made about obtaining some sandwiches with that ham to be consumed on their way. Plaintiff's husband declined to take any. Miss Talbert was somewhat insistent, and plaintiff then said that she (plaintiff) was not hungry, but would not be the one to say not to have it or break up the party. Plaintiff's husband then offered to pay for the sandwiches, but Miss Talbert refused to permit that, and made the purchase of three ham sandwiches. That the plaintiff, Mrs. and Miss Talbert ate of the sandwiches, and later that same night all three became violently ill. The condition of plaintiff was much the severest, and she suffered greatly, and was ill for a long time thereafter.

Uncontradicted medical testimony disclosed that the plaintiff contracted the disease of trichinosis, and that such could not have been from anything other than infected pork.

The testimony on behalf of defendant was to the effect that the ham in question was properly and thoroughly cooked, and it was undisputed that trichinæ infected pork, when properly cooked or thoroughly subjected to 137 degrees Fahrenheit or more, will be sterilized, and the parasites killed.

[1] The case was submitted to the jury, without protest in that regard by the plaintiff, upon the theory of possible negligence by defendant in preparing the ham for human consumption and in permitting it to be delivered to the plaintiff and her party in an unwholesome condition. Upon such theory the action is one in tort.

The ground here asserted as a basis for recovery by plaintiff, conceding for the present that the question can be now entertained, is upon the theory that there was, by the sale of the sandwiches in question, an implied warranty by the defendant, as seller, that such were wholesome and fit for human consumption. This is contended for either upon general common-law doctrine or in reliance upon the Uniform Sales Law (section 121.15 [1] Stats.), providing that, where it is known to the seller the particular purpose for which goods are required, and it appears the buyer relies upon the seller's skill and judgment, there is raised an implied warranty that the goods shall be reasonably fit for such purpose.

[2][3][4] To assert a right however, based upon a breach of warranty, express or implied, it is necessary that the required elements of a contract be present. The express language of the statute above cited and here invoked by plaintiff makes the rule there declared applicable as between buyer and seller, and manifestly is not intended to create a liability of the seller towards any person outside of such so defined and limited...