Safeway Stores, Inc. v. Ingram

• Citation: 51 S.W.2d 985,185 Ark. 1175
• Decision Date: 04 July 1932
• Docket Number: 4-2619
• Parties: SAFEWAY STORES, INC. v. INGRAM
• Court: Supreme Court of Arkansas

51 S.W.2d 985

185 Ark. 1175

SAFEWAY STORES, INC. v. INGRAM

4-2619

Supreme Court of Arkansas

July 4, 1932

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; affirmed.

Judgment affirmed.

Rose Hemingway, Cantrell & Loughborough, for appellant.

Sam T. and Tom Poe and George W. Clark, for appellee.

OPINION

MCHANEY, J.

Appellee sued appellant for damages, and in his complaint alleged that on the 22nd day of November, 1930, he purchased from appellant a piece of cheese loaf to be used and consumed as food; he ate a portion thereof and immediately thereafter became violently ill, sick at his stomach, causing a continuous emission therefrom for more that 12 hours, accompanied by a high temperature, followed by nervousness and nervous rigors; and since that time he has been unable to retain any substantial food in his stomach, but has been forced to exist on a very restricted diet; that said cheese loaf was unfit for human consumption, was poison and caused him to be stricken with ptomaine poison; that the servant of appellant knew said food was unwholesome, and that he was buying same for food, and that he relied upon the recommendation of said servant that said food was wholesome and nutritious. Appellant denied all the allegations of the complaint. A trial resulted in a verdict and judgment for appellee against appellant in the sum of $ 3,000.

For a reversal of the judgment appellant first argues that the court erred in giving instructions 2 and 5 at the request of appellee for the reason, it is urged, that the action was based upon a breach of implied warranty that the food sold was fit for consumption, whereas the two instructions mentioned defined the duty of appellant to exercise ordinary care in the sale of food for human consumption to see that the food they sell is reasonably fit for the purpose for which it is intended, and that, if appellant's employee knew, or, by the exercise of ordinary care, could have known, that the cheese loaf sold was unfit for human consumption, defendant would be liable. It is said that these two instructions are at least confusing to the jury, as instructions 1 and 3 given at appellee's request are based on the theory of implied warranty, and that it permitted appellee to recover on a theory not alleged in the complaint. Only a general objection was made to instructions 2 and 5, and the objection now argued is not raised by a general objection. The instructions complained of were correct declarations of law, were not inherently wrong, and a general objection fails to raise the question now argued. This court has held that the retail dealer of food for immediate consumption may be liable for damages both for a breach of implied warranty and for negligence in failing to use ordinary care. Heinemann v. Barfield, 136 Ark. 456, 207 S.W. 58. Therefore the rule relating to breach of implied warranty does not relieve appellant from the exercise of ordinary care.

Complaint is also made to instruction No. 9. This instruction told the jury, in substance, that, if appellee was suffering with stomach trouble at the time he ate the cheese loaf, but the unwholesome cheese loaf aggravated or accentuated his condition, causing him to suffer the disorder from which he complains, if any, still appellant would be liable. In other words, even though appellee might be sick, or his stomach in poor condition, appellant would have no right to sell him unwholesome food causing him to suffer ptomaine poisoning. We think no prejudice resulted to appellant in this regard. It defended on the ground, first, that the cheese loaf was pure and wholesome, and, 2d, that any illness suffered by appellee was caused by a prior condition of his stomach. No specific objection was made to this instruction, and we think it correctly states...