Swift & Co. v. Wells

• Decision Date: 03 September 1959
• Docket Number: No. 4966,4966
• Citation: 201 Va. 213,110 S.E.2d 203
• Parties: SWIFT AND COMPANY v. JEAN C. WELLS. Record
• Court: Virginia Supreme Court

Page 203

110 S.E.2d 203

201 Va. 213

SWIFT AND COMPANY v. JEAN C. WELLS.

Record No. 4966.

Supreme Court of Appeals of Virginia

September 3, 1959.

Archibald G. Robertson and Lewis Thomas Booker (Hunton, Williams, Gay, Moore & Powell, on brief), for the plaintiff in error.

Emanuel Emroch and Charles P. Rosner, for the defendant in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

This case presents to us the question of the liability of a manufacturer of food products to the consumer thereof for damages for personal injuries sustained by him as the result of the unwholesomeness of such food.

Frank H. Wells, as the agent of his wife, the plaintiff, Jean C. Wells, on Saturday, September 22, 1956, pursuant to her instructions, purchased from Roberson's Super Market a smoked pork shoulder. The shoulder was wrapped in cellophane and labeled by Swift and Company, its processor, as 'Swift's Premium Picnic Shoulder.'

After purchase of the shoulder, Wells returned to his home, two or three blocks from Roberson's Super Market, and Mrs. Wells immediately placed the shoulder in a new General Electric refrigerator under a temperature of 35 degrees Fahrenheit. It remained in the refrigerator with the cellophane wrapper intact until it was taken out the next day after the plaintiff returned from church. Mrs. Wells said she then cooked it in a pressure cooker until it was completely done. She ate some of it at lunch, but no other member of her family did. After lunch, she put the shoulder back in the refrigerator. Later in the afternoon of that day, Sunday, she suffered cramps in her stomach and felt nauseated. No other member of her family suffered any illness that day.

On Monday morning, September 24, Mrs. Wells cut two or three slices of the shoulder and used them in preparing a sandwich for her husband's lunch, while he was away from home engaged in work. She then put the shoulder back in the refrigerator. Mr. Wells ate the sandwich she made, and about 3:00 o'clock p.m. that afternoon, became sick, began to vomit, and went home. While his wife was atending him she ate four biscuits with slices from the same shoulder. Her older son also ate a piece of the meat from her plate. About two hours afterwards, she became very sick with severe vomiting spells, diarrhea, chills and pains in her head, cramps in her stomach, and began throwing up and passing blood. Her son also became ill. A physician was called and visited her that evening, and diagnosed her illness as gastroenteritis or food poisoning. The next day she was sent to the Medical College of Virginia Hospital, where she remained six days.

On Wednesday, September 26, Frank Wells wrapped up what remained of the shoulder, and put it in the freezing compartment of the Wells' refrigerator. On September 29, 1956, he took the shoulder to Roberson's Super Market and reported the illness in his family to L. T. Roberson, the owner of that market. Roberson cut the shoulder in half and said that it looked and smelled all right to him. He put it in his freezer, where the temperature was kept below zero.

Two or three days later later, Roberson sent the shoulder to the Virginia State Department of Health for analysis. The Department of Health, upon analyzing and testing the shoulder, found it contained hemolytic staphylococcus aureus germs. We are told that organisms of this type produce a toxin known as enterotoxin, an excretion resulting from the multiplication of staphylococci organisms, which is poisonous to the intestinal tract. The staphylococcus organism is a common one to the skin, mucous membranes, and nasal facings of man, and is found on the skin of some animals. It does not multiply under refrigeration, and is killed by cooking at high temperatures. Under room temperature, it will multiply and give off the poisonous enterotoxin, and if the meat product is later cooked, the staphylococci organisms will be killed; but the enterotoxin previously formed will remain unaffected and poison a human who eats the cooked meat.

It was further stated that staphylococci germs cannot go through a cellophane wrapper, and that meat may taste, smell, and look wholesome, and yet contain the enterotoxin. Their usual source comes from contact with some one who has germs on his skin. About 20% will produce the enterotoxin, and previously formed in meat it may remain therein after the staphylococci organisms have been killed because enterotoxin is relatively more stable.

Expert witnesses disagreed as to whether the enterotoxin was present in the shoulder prior to its cooking. Dr. Miles E. Hench, a medical bacteriologist, and Director of the Bacteriological Laboratory of the Medical College of Virginia, after being told the facts relative to the illness of Mrs. Wells and her family, testified that, in his opinion, the enterotoxin was produced and in the picnic shoulder while it was in the custody of the defendant, Swift and Company, before it was delivered to Roberson's Supermarket.

Another medical witness testified on behalf of the defendant that, in his opinion, there was no enterotoxin present when the shoulder was eaten because a microscopic analysis of the shoulder did not reveal living or dead staphylococci, which would necessarily have to be present in large quantities to form the enterotoxin.

Swift and Company, the defendant, is a national meat-packing house. It advertises its various products on a large scale, through the media of television, radio, magazines, newspapers, and by direct mail. Its smoked picnic shoulders had not been the subject of special advertising for several years prior to September, 1956; but an official of the Company frankly conceded that in advertising its several products, Swift hoped that the consuming public 'will buy a lot of other Swift products too.'

Mrs. Wells testified that she had seen the advertising of Swift's products on numerous occasions, had bought them, and liked them; and that she relied upon the representations in its advertisements for wholesomeness of its products.

Swift and Company traced the history of the shoulder in controversy from the time it had come from its plant in Missouri to its delivery to Roberson's Super Market. It presented evidence showing that it had fully observed all State and Federal laws relating to the manufacture and sale of food products.

Mrs. Wells instituted this action by motion for judgment alleging the liability of Swift and Company on three counts. The first was on an implied warranty that the shoulder was wholesome and fit for human consumption. The second alleged negligence in processing the shoulder; and the third charged the violation of the Virginia Food and Drink Act, Chapter 16, sections 3-303 and 3-308, Code of Virginia, 1950.

Swift and Company demurred to the motion for judgment upon the ground that there was no privity of contract between the parties, and that there was a misjoinder of causes of action, one count being for breach of warranty of contract and the other two being for tort. The court overruled the demurrer. After testimony in chief for Mrs. Wells had been introduced, the trial court sustained the motion of defendant to strike the evidence as to counts two and three, but overruled as to count one, the implied warranty count.

The jury accepted the evidence on behalf of the plaintiff that the enterotoxin was created in the shoulder while it was in the custody of Swift, and before it was delivered to the Super Market, and also that the plaintiff had thoroughly and properly cooked the shoulder before partaking of it. A verdict for the plaintiff was returned in the sum of $4,000, and judgment was entered accordingly.

On appeal, appellant asserts in its brief that there are but two questions for decision: First, whether the trial court erroneously ruled that privity of contract was not a prerequisite to recovery upon an implied warranty; and, second, whether the court erred in holding that Mrs. Wells had no cause of action against defendant under count three for the violation of the Virginia Food Act.

Mrs. Wells concedes that no negligence was proven, and while she assigns cross-error to the action of the court in striking the evidence with regard to the third count, she does not urge consideration of the cross-error in the event we sustain the action of the trial court as to count one.

Since an early date, the courts have made a distinction with respect to warranties between the sale of food and other articles of commerce. As far back as 1266 A.D., a statute of England provided: 'It is ordained that no one shall sell corrupt victuals.' 51 Hen. III, stat. 6. Early English decisions repeatedly held that an action on the case lies against the seller of corrupt food whether the same was warranted to be good or not. Keilway's 92, 72 Eng. Reprint 254; Roswel v. Vaughan, (1607) Cro. Jac. 196, 79 English Reprint 171.

The foregoing principle was adopted by early decisions in America. In Van Bracklin v. Fonda, (1815) 12 Johns. N.Y. 468, 7 Am.Dec. 339, the court held that in contracts for sale of provisions for human use it is always implied that they are wholesome and that if they are not the seller is liable in damages to the consumer. The holding was based on the ground that the vendor is bound to know that they are sound and wholesome, a principle said to be 'not only salutary, but necessary to the preservation of health and life.' (Cases cited 142 A.L.R., page 1485).

In Virginia, we have followed the common law doctrine that one who sells foodstuff for human consumption impliedly warrants its fitness and wholesomeness for such purpose, and is liable not only for the result of any negligent act involved in failing to use due and reasonable care in the preparation and handling of his product; but is also liable on the implied warranty where there is privity of contract between the vendor and vendee. Norfolk Coca-Cola Bottling Works, Inc. v....