Southwest Ice & Dairy Products Co. v. Faulkenberry, 33601

• Decision Date: 18 April 1950
• Docket Number: No. 33601,33601
• Citation: 17 A.L.R.2d 1373,220 P.2d 257,1950 OK 100,203 Okla. 279
• Parties: , 17 A.L.R.2d 1373 SOUTHWEST ICE & DAIRY PRODUCTS CO. v. FAULKENBERRY et al.
• Court: Oklahoma Supreme Court

Page 257

220 P.2d 257

203 Okla. 279, 17 A.L.R.2d 1373

SOUTHWEST ICE & DAIRY PRODUCTS CO. v. FAULKENBERRY et al.

No. 33601.

Supreme Court of Oklahoma.

April 18, 1950.

Rehearing Denied May 16, 1950.

Second Petition for Rehearing Denied July 11, 1950.

Syllabus by the Court.

1. A manufacturer or processor of food products under modern conditions impliedly warrants his goods when dispensed in original packages or bottles, and such warranty is available to all who may be damaged by their use in the legitimate channels of trade, including those who purchase them for resale.

2. In an action for damages resulting from the sale of contaminated food, a petition states a cause of action which alleges that a mouse was left in a sealed bottle of milk packaged by the manufacturer and sold to the retailer thereby causing retailer damage for subsequent loss of business in handling the milk, such facts are prima facie evidence of neglect in failing to ascertain the existence of the noxious object.

3. The res ipsa loquitur doctrine may be invoked against the bottler of packaged foods when the package comes from the packer or bottler so constructed or sealed that its contents reach the retailer or consumer without possibility of alteration by intermediate parties, and where a foreign substance is found in a bottle of milk so that its physical location therein conclusively demonstrates its presence there when the article came from the packer or bottler, the thing speaks for itself not only as to the negligence of packer or bottler but as to his prima facie responsibility for the resulting injury, and plaintiff need not allege or prove negligence to recover damages.

4. Where instructions given by the trial court are not excepted to, any error therein, aside from fundamental error, is waived.

5. The loss of profits proximately resulting from the wrongful injury to an established business constitutes an element of damages recoverable for such injury, and where it is made to appear that some loss has been suffered, it is proper to let the jury determine what the loss is from the best evidence the nature of the case admits.

6. Where instructions given by the trial court inadvertently use the expression 'approximate' cause of an injury, instead of the expression 'proximate' cause, the error is not prejudicial.

Butler & Rinehart, Oklahoma City, for plaintiff in error.

Turner M. King, Ada, Carloss Wadlington, Ada, for defendants in error.

JOHNSON, Justice.

This action was commenced in the County Court of Pontotoc County by defendants in error, W. C. Faulkenberry and Maude Faulkenberry, d/b/a Faulkenberry Grocery Store, against plaintiff in error. The Southwest Ice and Dairy Products Co., a corporation, d/b under the trade name of Steffens Dairy Products Co., wherein plaintiffs sought to recover damages on account of the sale by defendant to plaintiffs of a quart of milk containing a dead mouse. The parties will be referred to as they appeared in the trial court.

Plaintiffs alleged, in substance, that on or about January 25, 1947, they owned and were operating a grocery store in Ada, Oklahoma; that theretofore they had purchased at wholesale quart bottles of milk from defendant to be sold by plaintiffs at retail in their store; that on January 26, 1947, while plaintiffs' store was open for business, and had on hand a quantity of the sweet milk so purchased, one of their regular customers bought a bottle of said milk; that after said customer had purchased said bottle of milk it was discovered in the presence of other customers of said store that it contained a dead mouse; that it became known to all the customers of said store and the surrounding neighborhood and the general public that a mouse had been discovered in a bottle of milk in plaintiffs' store, and that a quantity of milk purchased during the day was returned by a great number of plaintiffs' customers; that thereafter plaintiffs were able to sell hardly any milk to their customers, and immediately thereafter their business decreased and continued to do so and that said decrease in their business was due to the publicity resulting from the bottle of milk containing the dead mouse which had been sold to plaintiffs by defendant; that by reason thereof plaintiffs' business had been damaged in the sum of $1,000.00, for which they prayed judgment.

Defendant demurred to said petition, which demurrer was overruled. Defendant then answered admitting its corporate existence and authority to do business in Oklahoma and that it maintains and operates a creamery in the City of Ada, Oklahoma, and has occasion to sell at wholesale quart bottles of sweet milk.

Defendant specifically denied that on January 26th. or any other date, it sold to plaintiffs any quart bottles of milk containing a foreign substance.

It alleged that plaintiffs' business had not been damaged by any act or omission on its part.

The issues thus joined were tried to a jury resulting in a verdict and judgment for plaintiffs in the sum of $300.00 from which defendant appeals.

Defendant contends that the trial court erred in overruling its demurrer to plaintiffs' petition. The facts stated in the petition were admitted by the demurrer. Plaintiffs under the pleadings have been injured by a breach of duty owed to them. A manufacturer or processor of food products under modern conditions impliedly warrants his goods when dispensed in original packages or bottles, and such warranty is available to all who may be damaged by their use in the legitimate channels of trade, including those who purchase them for resale. 36 C.J.S., Food, § 60; 22 Am.Jur., Food, sec. 110; Mazetti et al. v. Armour and Co., et al., 75 Wash. 622, 135 P. 633, 48 L.R.A.,N.S., 213, Ann.Cas.1915C, 140; Neiman v. Channellene Oil and Manufacturing Company, 112 Minn. 11, 127 N.W. 394, 140 Am.St.Rep. 458. As to implied warranty, see Griffin et al. v. Asbury, 196 Okl. 484, 165 P.2d 822.

In this connection defendant asserts that plaintiffs did not allege or prove negligence, and that there was no evidence of any particular or specific act of negligence by defendant. It is undisputed that there was a dead mouse in the bottle of milk, and that the seal of the bottle containing the same had not been disturbed after it was processed; that the manufacturer or processor had exclusive control of the agency or processing plant. The contention of defendant as a general proposition is correct, but where the specific act of negligence causing the injury cannot be ascertained or shown by the plaintiff, and where the agencies out of which the negligence arises were within the exclusive control of the defendant, the plaintiff is neither required to allege nor prove any specific act of negligence. In such case, 'where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care.' 45 C.J. 1193, Negligence, sec. 768; 36 C.J.S., Food, § 69a(2); Eisenbeiss v. Payne, 42 Ariz. 262, 25 P.2d 162; Annotations 105 A.L.R. 1044. This rule is based upon...