Tornello v. Deligiannis Brothers

• Citation: 180 F.2d 553
• Decision Date: 07 March 1950
• Docket Number: No. 10010.,10010.
• Parties: TORNELLO v. DELIGIANNIS BROTHERS, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

180 F.2d 553 (1950)

TORNELLO v. DELIGIANNIS BROTHERS, Inc.

No. 10010.

United States Court of Appeals Seventh Circuit.

February 16, 1950.

Rehearing Denied March 7, 1950.

Harold A. Fein, Chicago, Ill., George A. Gordon, Chicago, Ill., for appellant.

Amos J. Coffman, Eugene T. Devitt, Chicago, Ill., for appellee.

Before KERNER, FINNEGAN, and SWAIM, Circuit Judges.

KERNER, Circuit Judge.

C. Tornello, plaintiff, sued defendant to recover the purchase price paid for 58 boxes of cheese, and for expenses arising out of an alleged breach of warranty in that the cheese was unfit for human consumption. The case was tried by the court without a jury. The trial judge made special findings of fact, pronounced his conclusions of law thereon, and rendered judgment in favor of plaintiff. This judgment, defendant seeks to reverse.

The complaint showed affirmatively the requisite jurisdictional amount and the necessary diversity of citizenship. It alleged that on August 8, 1946, defendant shipped to plaintiff at Youngstown, Ohio, 100 boxes of cheese which plaintiff accepted and for which it paid the purchase price; that a libel was prosecuted against the cheese by the United States, and 58 boxes of the cheese were found to be adulterated in interstate commerce in that the cheese consisted of a filthy substance because of the presence therein of rodent excreta and maggots. The cheese was condemned, and the United States marshal was ordered to destroy it. As a result, plaintiff suffered the damages for which the suit was brought.

In its answer defendant averred that it delivered the cheese to the common carrier at Black Creek, Wisconsin, in good and edible condition, and denied that the cheese was contaminated and unfit for human consumption, or that it consisted of any filthy substance.

The record discloses that on October 30, 1946, a libel action against the cheese was filed in the United States District Court at Cleveland, Ohio, in which it was alleged that the cheese was adulterated in interstate commerce in that it consisted in whole or in part of a filthy substance by reason of the presence therein of rodent excreta and maggots. On November 4, 1946, pursuant to a warrant of seizure and monition issued in the libel action, 58 boxes of the cheese were seized by a United States marshal. The defendant was duly served with a summons and a copy of the Information in the libel action, and in addition, defendant was promptly notified by plaintiff of the pendency of the libel action, but chose not to participate therein. Thereafter, the District Court in Cleveland found that the cheese had been shipped in interstate commerce in violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., adjudged the cheese to be condemned, and ordered the marshal to destroy it.

The decision turns principally on the question whether defendant shipped the cheese in an adulterated condition. There is but little, if any, dispute as to the facts.

The court concluded that the plaintiff had performed every obligation of the contract of purchase, but that defendant had failed to perform its obligations in that the cheese was not fit and suitable for human food due to the presence therein of rodent excreta at the time the cheese was shipped to plaintiff.

The court made additional findings to the effect that the 100 boxes of cheese had been shipped from Black Creek, Wisconsin, by refrigerated truck and railroad car; that the cheese arrived at Youngstown, Ohio, on August 12, 1946, was unloaded during the afternoon of August 13 and placed in cold storage until November 4, 1946, except for 42 boxes that were removed and sold by plaintiff during the period between August 13 and November 4.

Defendant says that the issue is not whether the cheese became adulterated, but when. It makes the point that the decree in the libel action was not conclusive of that issue. It admits, as it must (see Kansas City Wholesale Grocery Co. v. Weber Packing Corporation, 93 Utah 414, 73 P.2d 1272, 1276), that the record in the libel action was admissible, that it is res judicata as to the condition of the cheese when seized by the United States marshal (Bob's Candy & Pecan Co. v. McConnell, 140 Tex. 331, 167 S.W.2d 511), but insists that the decree did not constitute evidence of adulteration on August 7, the date of shipment, and contends that plaintiff has failed to establish a breach of warranty.

The entire record in the libel action was admitted in evidence. Defendant concedes that such record was conclusive as to the condition of the cheese on November 4. On the issue whether defendant had shipped the cheese in an adulterated condition, the proofs were that defendant had examined the cheese before it was shipped, and that at that time the outside surface of the cheese was washed, and no contamination was observed; that upon its arrival at Youngstown plaintiff examined the cheese, but no contamination was discovered — there was no outer destruction of...