Race v. Krum

Decision Date05 February 1918
Citation118 N.E. 853,222 N.Y. 410
PartiesRACE v. KRUM.
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, Third Department.

Action by C. Bertrand Race against Charles B. Krum. From a judgment of the Appellate Division (162 App. Div. 911,146 N. Y. Supp. 197), affirming a judgment entered on verdict for plaintiff, defendant appeals. Judgment affirmed.

See, also, 163 App. Div. 924,147 N. Y. Supp. 818.

Joseph A. Lawson, of Albany, for appellant.

Walter B. Grant, of Boston, Mass., and Chester H. Lane and Walter J. Carlin, both of New York City, amici curiae.

Edgar T. Brackett, of Saratoga Springs, for respondent.


This action was brought to recover damages for personal injuries alleged to have resulted from the consumption by plaintiff of unwholesome and poisonous ice cream sold to him by defendant. The complaint contains two causes of action. In the first a recovery is asked on the ground that defendant was negligent in selling the cream, and in the other that he warranted it to be fit for human consumption. A majority of the court is of the opinion that the answer put in issue the material allegations of each. At the conclusion of the evidence, however, plaintiff elected to go to the jury only upon the second cause of action, and the case was submitted to it on that theory. Plaintiff had a verdict, and from the judgment entered thereon an appeal was taken to the Appellate Division, where the same was affirmed, two of the justices dissenting, and defendant appeals to this court.

On the 22d of June, 1911, defendant conducted a drug store in the city of Albany, and in connection with and as a part of such business sold ice cream to be consumed in the store. Some time during the evening of that day plaintiff, with two companions, entered the store and asked that each be served with ice cream, which was done; the two companions being served from one can and plaintiff from another. Plaintiff complained of the quality of the cream served him, and ate only a part of it. stating it was ‘not good; there is something the matter with it.’ He then left the store, and as he did so the clerk who waited upon him examined the cream, and he stated ‘there is something wrong with that.’ Within a very short time thereafter plaintiff was taken violently ill, and remained so for several days.

The appellant attacks the validity of the judgment on the ground (a) that there was no evidence to establish the cream sold to plaintiff was the cause of his illness; and (b) the trial court erred in instructing the jury that, when defendant sold the cream to plaintiff, he impliedly warranted it was fit for human consumption.

[1] As to the first contention, there certainly was some evidence tending to establish that plaintiff's illness was caused by the presence of a poison known as tyrotoxicon in the ice cream; that such poison is a filth product, found only in milk and milk products, including ice cream. Having ascertained from the record that there is some evidence to support the finding of the jury that there was tyrotoxicon in the cream, and that the same was the cause of plaintiff's illness, this court is precluded from making a further examination on that subject. The question whether there is any evidence to support a finding of fact is one of law, which, when the affirmance by the Appellate Division is not unanimous, is reviewable by this court. When, however, it has found there is such evidence, the question is no longer one of law, and the decision of the court below upon the facts is final. Ostrom v. Greene, 161 N. Y. 353, 55 N. E. 919;Chainless Cycle Mfg. Co. v. Security Ins. Co., 169 N. Y. 304, 311,62 N. E. 392;Hawkins v. Mapes-Reeve Const. Co., 178 N. Y. 236, 238,70 N. E. 783.

[2] As to the second contention, I am of the opinion the trial court did not err in instructing the jury that, when defendant sold the cream to plaintiff, he impliedly warranted it was wholesome and fit to eat. In this connection, however, it must be borne in mind that we are not dealing with the liability of hotel proprietors, restaurant keepers, dining car managers, or people engaged in business of that kind, but are considering solely the liability of a dealer, who makes or prepares the article that he is selling. As to such dealer we believe the instructions were proper. The general rule, established by the weight of authority in the United States and England, is that accompanying all sales by a retail dealer of articles of food for immediate use there is an implied warranty that the same is fit for human consumption. Hoover v. Peters, 18 Mich. 51;Sinclair v. Hathaway, 57 Mich. 60, 23 N. W. 459,58 Am. Rep. 327;Winsor v. Lombard, 18 Pick. (Mass.) 61;Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481,15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436,15 Ann. Cas. 1076;Askam v. Platt, 85 Conn. 448, 83 Atl. 529;Tomlinson v. Armour & Co., 75 N. J. Law, 748, 70 Atl. 314,19 L. R. A. (N. S.) 923;Wiedeman v. Keller, 171 Ill. 93, 49 N. E. 210;Cantani v. Swift & Co., 251 Pa. 52, 95 Atl. 931, L. R. A. 1917B, 1272;Bark v. Dixson, 115 Minn. 172, 131 N. W. 1078, Ann. Cas. 1912D, 775;Parks v. C. C. Yost Pie Co., 93 Kan. 334, 144 Pac. 202, L. R. A. 1915C, 179;Doyle v. Fuerst & Kraemer, Ltd., 129 La. 838, 56 South. 906,40 L. R. A. (N. S.) 480, Ann. Cas. 1913B, 1100;Haley v. Swift & Co., 152 Wis. 570, 140 N. W. 292;Nelson v. Armour, 76 Ark. 352, 90 S. W. 288,6 Ann. Cas. 237; Bigge v. Parkinson, 7 H. & N. 955; Frost v. Aylesbury Dairy Co., Ltd., [1905] 1 K. B. 608. See, also, 35 Cyc. 407, and authorities cited; 129 La. 838, 56 South. 906,40 L. R. A. (N. S.) 480, Ann. Cas. 1913B, 1100, and note.

It is true, as urged by the appellant, that this court, so far as I have been able to discover, has not heretofore expressed its view as to the soundness of the rule above referred to. There are, however, two cases in the Appellate Division of the Supreme Court, which, following the decision there made of the present case, have applied such rule. Leahy v. Essex Co., 164 App. Div. 903,148 N. Y. Supp. 1063, and Rinaldi v. Mohican Co., 171 App. Div. 814,157 N. Y. Supp. 561. And there are several authorities in this court and in the Supreme Court where, in opinions delivered, the statement is made that such rule does exist. While it may be true, as contended, that such statements cannot be considered as settling the law on the subject, inasmuch as the same were not necessary to the decision (Colonial City Traction Co. v. Kingston City R....

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