Simone v. John J. Felin and Company et al. No. 1.

• Court: Pennsylvania District and County Court
• Writing for the Court: Levinthal, J.
• Citation: 35D.&C.645
• Docket Number: December term, 1937, no. 240.
• Decision Date: 21 June 1939
• Parties: Simone v. John J. Felin and Company et al. No. 1.

35 D.&C. 645

Simone v. John J. Felin and Company et al. No. 1.

December term, 1937, no. 240.

The Judicial Districts of Pennsylvania.

June 21, 1939.

Food — Sale of pork infected with trichinae — Right of ultimate consumer to sue packer and retailer in assumpsit for breach of warranty — Existence of right of action in tort.

One who has been made ill from eating pork contaminated by trichinae, which do not enter meat after slaughter and which cannot be detected by inspection on the part of the retailer or consumer, may properly maintain an action in assumpsit for breach of warranty against both the packer and retailer, even though an action in tort would also have been proper.

Affidavit of defense raising questions of law. C.P. No. 2 of Philadelphia County.

Robert M. Bernstein, for plaintiff.

Mancill & Shallow and P.F. Newman, for defendants.

LEVINTHAL, J., June 21, 1939.

Plaintiff was taken seriously ill with trichinosis; hence this action against the packer and the retailer of the infected pork alleged to have caused the illness. The matter is before us upon statutory demurrers to the statement of claim, which was filed in assumpsit. We summarize the statement:

Defendant Felin prepares and dresses meat for sale to the general public in Philadelphia, where defendant Parisse is a butcher. Parisse bought raw pork from Felin and sold five pounds of it to plaintiff's mother. Felin, in selling pork to Parisse, is alleged to have "warranted that the said pork was of merchantable quality, and sound and fit for household consumption". Parisse, in the sale of the pork, it is averred, made the same warranty. The pork, however, was not merchantable or fit for household consumption because it was infected with trichinae, which infection existed when it was sold both by Felin and by Parisse. The pork, plaintiff avers, was properly cooked and served to plaintiff, who ate it and became ill.

The question to be determined first, is whether an action of assumpsit for breach of warranty may be brought by the ultimate consumer against the manufacturer or packer.

Impure food cases have been instituted and sustained in both trespass and assumpsit. In the trespass cases, however, the courts have sometimes based recovery upon the theory of a breach of warranty, while the assumpsit actions have occasionally been sustained upon the ground of negligence. The Superior Court in Nock v. Cola-Cola Bottling Works, 102 Pa. Superior Ct. 515, 518 (1931), recognized this apparent confusion:

"There is considerable confusion in the decisions as to the theory of the liability of the defendant in this class of cases. Some of them hold that an action is based upon negligence alone; others that it may be founded on an implied warranty; and still others that where an implied warranty exists, it does not extend to third parties. Undoubtedly, an action in tort could have been brought, but in determining whether or not that form is exclusive, one is confronted by a conflict of authorities which is confusing. The question whether an assumpsit under a contract of implied warranty of fitness, etc., may be maintained is, in many instances, so closely related to the question of negligence that the decisions are not always susceptible of clear classification. In 26 C.J. 783, it is stated that the general rule is, that in all sales of food or beverages for immediate consumption by a dealer, there is an implied warranty of fitness or wholesomeness for the consumer."

In our opinion, the Nock case may be regarded as authority for the present action. There the court affirmed a judgment against the manufacturer in an action of assumpsit brought by a plaintiff who had purchased the defective beverage from an intermediate retailer. A reason stated by the court in the course of its opinion, that the objection as to the form of action had not been diligently raised in the court below, was merely an added ground for the decision and not the sole basis of it. The case of Catani v. Swift & Co., 251 Pa. 52 (1915), also, has frequently been cited as authority for the proposition that an assumpsit action in a case like the present is proper. That case was in trespass, but the opinion concerns itself almost entirely with warranties and their breach.

It is true that the present action could have been founded in tort: Catani v. Swift & Co., supra; Rozumailski v. Philadelphia Coca-Cola Bottling Co., 296 Pa. 114 (1929); Menaker et al. v. Supplee-Wills-Jones Milk Co., 125 Pa. Superior Ct. 76 (1937); A.L.I. Restatement of Torts (1934) § 395. But no case in our jurisdiction holds the tort action exclusive or forbids an action of assumpsit. On the contrary, the few relevant cases in Pennsylvania seem to allow plaintiff his choice of remedies. See, in addition to the Nock and Catani cases, supra, Tavani v. Swift & Co., 262 Pa. 184, 187 (1918). (In the Tavani case the court wrote: "The action being in trespass for negligence and not for breach of warranty, the evidence was competent and sufficient to sustain the conclusion of the jury that defendant omitted no precaution or duty it owed plaintiff." It appears to us that this statement recognizes the possibility of a contract action as well as a trespass action. Of course, we do not decide at this state of the proceedings whether in this assumpsit action the defendant may absolve itself by proving that it was not negligent. That is a question to be decided at the trial.) There is a divergence of authority among other jurisdictions, with perhaps a slight majority not permitting the contract action. See the cases collected in 111 A.L.R. 1239, 1251 (1937), and the annotations there cited. However, among the cases there is respectable authority sustaining actions for breach of warranty. See, e.g., Davis v. Van Camp Packing Co., 189 Iowa 775, 176 N.W. 382 (1920), and The Ward Baking Co. v. Trizzino, 27 Ohio App. 475, 161 N.E. 557 (1928).

Defendant's objection rests largely upon the concept of privity of contract. But as Chief Judge Cardozo remarked some years ago in Ultramares Corp. v. Touche et al., etc., 255 N.Y. 170,...