Swift & Co. v. Hawkins

• Decision Date: 25 November 1935
• Docket Number: 31938
• Citation: 164 So. 231,174 Miss. 253
• Parties: SWIFT & CO. v. HAWKINS
• Court: Mississippi Supreme Court

164 So. 231

174 Miss. 253

SWIFT & CO. v. HAWKINS

No. 31938

Supreme Court of Mississippi

November 25, 1935

Division B

1 FOOD.

Evidence sustained finding that cheese on which defendant's name as distributor appeared contained decomposed flies and was purchased by plaintiff.

2 NEGLIGENCE.

One who puts out as his own a chattel manufactured by another is subject to same liability for injuries caused by defect in chattel as though he were its manufacturer.

3 FOOD.

Distributor which did not manufacture cheese which was packed in wrappers stamped with trade-name exclusively used by distributor to identify its cheese products and which was contained in box, on label of which appeared such trade-name and distributor's name, held liable for illness sustained by consumer who ate decomposed or moulded bodies of flies contained in cheese.

HON. E. M. LANE, Judge.

APPEAL from the circuit court of Smith county HON. E. M. LANE, Judge.

Action by W. E. Hawkins against the Swift & Co. From a judgment for the plaintiff, the defendant appeals. Affirmed.

Affirmed.

G. Garland Lyell and George R. Nobles, both of Jackson, for appellant.

The court erred in not granting a peremptory instruction requested by appellant. This was manifest and reversible error because the evidence showed beyond question that the old butcher knife which had been used could have become contaminated by germs or bacteria and have caused the stomach and other disorders complained of by appellant.

Cudahy Packing Co. v. McPhail, 155 So. 163; Cudahy Packing Company v. Baskin, 155 So. 217.

The verdict of the jury was grossly excessive and was the result of passion and prejudice against the defendant and was also the result of an unjust, improper and unreasonable sympathy for the appellee.

The plaintiff utterly failed to show causal connection between his illness and the cheese.

Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726; Cudahy Packing Co. v. McPhail, 155 So. 163; Cudahy Packing Co. v. Baskin, 155 So. 217; Jackson Coca Cola Bottling Co. v. Grubbs, 143 Miss. 590, 595, 108. So. 773.

In the instant case the appellant, an Illinois corporation, did not manufacture the cheese but its branch house at Meridian, Mississippi, purchased that cheese either from Swift & Company of Iowa, operating a cheese plant at West Point, Mississippi, or from Pauly & Pauly, of Wisconsin.

In the case at bar the only people that became ill were, the plaintiff, his wife and a negro servant. There were other purchases before plaintiff's first purchase and many purchases in the interval of eighteen days. Furthermore, in the instant case, Dr. Coursey, a witness for plaintiff admitted that there might have been trichina in the sausage which plaintiff said he ate for dinner on November 28, 1933, and that at that time he and his family were daily eating pork sausage at his home.

O. B. Triplett, Jr., of Forest, for appellee.

One who puts out as his own a chattel manufactured by another is subject to the same liability as though he were its manufacturer.

A. L. I. Restatement Torts, sec. 400; Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 108. N.E. 491; Broom's Legal Maxims (7 Ed.), page 169.

With unanimity the courts have applied the rule last stated where the chattel put out was an article of food for human consumption.

Brukhardt v. Armour & Co., 115 Conn. 249, 161 A. 385, 90 A.L.R. 1260; Slavin v. Francis H. Leggett & Co., 117 A. 120. Fleetwood v. Swift & Co., 108 S.E. 909, 27 Ga.App. 502; Interstate Grocery Co. v. Geo. William Bentley Co., 214 Mass. 227, 101 N.E. 147; Grocer's Wholesale Co. v. Bostock, 22 Ont. L. Rep. 130; Curtis Candy Co. v. Johnson, 141 So. 762, 163 Miss. 426; Kroger Grocery Co. v. Lewelling, 145 So. 726, 165 Miss. 71.

The appellee's evidence was sufficient to warrant the verdict of the jury on the issue of probable cause and resultant damage.

Columbus & Greenville Ry. Co. v. Coleman, 160 So. 277; Durrett v. Mississippian Ry. Co., 158 So. 776, 171 Miss. 899; Cudahy Packing Co. v. Baskin, 155 So. 217, 170 Miss. 834; Cudahy Packing Co. v. McPhail, 155 So. 163, 170 Miss. 508.

Appellee's ill effects from eating the second purchase from the same block of cheese tended to prove the source of contamination. The rule is true even though the purchases are merely from the same shipment.

Zenkel v. Oneida County Creameries, 104 Misc. 251, 171 N.Y.S. 676, 188 A.D. 251, 176 N.Y.S. 927; Davis v. Van Camp Packing Co., 176 N.W. 382; Craft v. Parker, 96 Mich. 245, 55 N.W. 812; Ward v. Moorehead Co., 171 N.C. 33, 87 S.E. 958; Kennedy v. Plank, 120 Wis. 197, 97 N.W. 896; State v. Good, 56 W.Va. 215, 49 S.E. 121.

The illness of others eating the cheese in question is of significant probative value.

Zenkel v. Oneida County Creameries, 104 Misc. 251, 171 N.Y.S. 676; Davis v. Van Camp Packing Co., 176 N.W. 382; Franklin v. Argyro, 100 So. 811, 211 Ala. 506.

A chemical analysis of the food was unnecessary.

Kelley v. John B. Daily Co., 56 Mont. 63, 181 P. 326.

The opinion of appellee's physician was sufficient in itself to establish the cause of appellee's illness.

Kelley v. John B. Daily Co., 56 Mont. 63, 181 P. 326.

The damages assessed were moderate.

Coca Cola Bottling Co. v. Simpson, 130 So. 479, 158 Miss. 390; Bufkin v. Gresham, 128 So. 563, 157 Miss. 746; Coca Cola Bottling Co. v. Lyonn, 111 So. 305, 145 Miss. 876; Armour & Co. v. McMillan, 155 So. 218, 171 Miss. 199.

Argued orally by G. Garland Lyell, for appellant, and by O. B. Triplett, Jr., for appellee.

OPINION

Griffith, J.

Appellee recovered judgment for damages for an illness shown to have been caused by eating cheese which contained, embedded therein, the decomposed or moulded bodies of flies. The cheese was purchased by appellee from a local merchant who had procured it from a neighboring wholesaler who had purchased it from the appellant. The case is of that class wherein the courts must exercise more than the ordinary scrutiny because of the danger of fabrication and imposition. But on the record now before us, the proof is amply made, two of the witnesses being the merchant who sold the cheese, and the merchant's wife, the cheese having been returned to the store for inspection after its deleterious condition was discovered. The case comes well within such as Pillars v R. J. Reynolds Tobacco Co., 117 Miss. 490, 491, 78 So. 365; Jackson Coca-Cola Bottling Co. v. Renna (Miss.), 97 So. 674; ...