Ward v. Morehead City Sea Food Co.

• Decision Date: 23 February 1916
• Docket Number: 16.
• Citation: 87 S.E. 958,171 N.C. 33
• Parties: WARD v. MOREHEAD CITY SEA FOOD CO.
• Court: North Carolina Supreme Court

87 S.E. 958

171 N.C. 33

WARD v. MOREHEAD CITY SEA FOOD CO.

No. 16.

Supreme Court of North Carolina

February 23, 1916

Appeal from Superior Court, Chowan County; Cooke, Judge.

Action by W. H. Ward, administrator, against the Morehead City Sea Food Company. From a judgment for plaintiff, defendant appeals. Affirmed.

One preparing and selling food for human consumption impliedly warrants that it is fit for food and is not dangerous and deleterious.

Evidence held to justify a finding that one packing and placing on the market fish for human consumption was negligent.

W. M Bond, Jr., of Plymouth, and Guion & Guion, of New Bern, for appellant.

Pruden & Pruden, of Edenton, Ehringhaus & Small, of Elizabeth City and E. G. Bond, of Wilson, for appellee.

CLARK C.J.

This is an action for the death of the plaintiff's intestate caused, as admitted by the defendant and found by the jury by eating salt mullets bought by plaintiff's intestate from W. S. White, a retail grocery dealer in Edenton, who had bought them from the defendant, the original packer of the mullets. The defendant in its answer admits that it shipped the mullets to said retail dealer on the 18th of September, 1914, and that said White offered them for sale in its regular business. The plaintiff alleged its cause of action under three different heads:

1. That there is a warranty which runs with the sale of food for human consumption that the article is fit for food and does not contain dangerous and deleterious substances, injurious or fatal to human life and health. This cause of action is presented under the second and third issues, and were answered by the court in the affirmative as a matter of law and as a result of the answer by the jury to other issues.

2. That said packer, the defendant, was negligent in the preparation of said mullets, and that said fish were unfit and dangerous, and unfit for human consumption, which condition was known, or ought to be known, by the defendant, and was due to its careless and negligent preparation of the fish and lack of care in packing.

3. That after the fish was sold by the defendant to said retail dealer, and before plaintiff's intestate had eaten them, the defendant was put on notice by information that some of the same lot of fish shipped to said retailer had made people dangerously ill, and that the defendant could have gotten information to the said retailer to stop the sale of said fish in time to have warned the plaintiff's intestate, and thus could have prevented his eating them, and that failure to do so was negligence, which caused the death of plaintiff's intestate.

The authorities are numerous that there is an implied warranty that runs with the sale of food for human consumption, that it is fit for food and is not dangerous and deleterious. Watson v. Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L. R. A. (N. S.) 1178, 110 Am....