Whitethorn v. Nash-Finch Co.

• Decision Date: 24 September 1940
• Docket Number: 8310.
• Citation: 293 N.W. 859,67 S.D. 465
• Parties: WHITETHORN v. NASH-FINCH CO.
• Court: South Dakota Supreme Court

293 N.W. 859

67 S.D. 465

WHITETHORN v. NASH-FINCH CO.

No. 8310.

Supreme Court of South Dakota

September 24, 1940

Appeal from Circuit Court, Kingsbury County; Frank R. Fisher, Judge.

Action by Frances Whitethorn, by her guardian ad litem, Clarence Whitethorn, against the Nash-Finch Company and another for damages suffered by reason of eating poisoned candy. From an order overruling a demurrer to the complaint, named defendant appeals.

Reversed.

Bailey Voorhees, Woods & Bottum and Roswell Bottum, all of Sioux Falls, for appellant.

J. H Lammers, of Madison, for respondent.

RUDOLPH Judge.

Plaintiff in this action seeks to recover damages from the defendants Nash-Finch Company and Lyle E. Jensen. The defendant Nash-Finch Company, demurred (prior to the enactment of SDC 33.0902) to the complaint, which demurrer was overruled and the Nash-Finch Company has appealed.

Plaintiff seeks to hold both defendants for damages she has allegedly suffered by reason of eating poisoned candy which she obtained from the defendant, Lyle E. Jensen. The complaint discloses that Lyle E. Jensen operates a retail store and purchased the candy in question from Nash-Finch Company. Paragraphs 5, 6, and 7 of the complaint are, as follows:

"5. That on or about the 18th day of February, 1938, the defendant, Nash-Finch Company, sold, distributed, packed and transported from its office and place of business at Sioux Falls, South Dakota, to the defendant at his place of business at Oldham, South Dakota, a certain quantity of candy known and designated as 'mixed special'; that said candy was sold, packed, distributed and transported by the said defendant, Nash-Finch Company, in a pasteboard carton and that the said defendant, Nash-Finch Company, was careless and negligent in the selling, distributing, packing and transportation of said candy, in that said candy was not securely protected from dirt, dust and other foreign and injurious contamination, and that in the process of selling, distribution, packing and transportation of said candy, the same was subject to contamination by dust, dirt and other foreign and injurious substances.

"6. That in addition to the foregoing facts, conditions and circumstances, the said candy was warranted by the said defendant, Nash-Finch Company, as pure and uncontaminated and unadulterated, and that it was sold as candy and packed, distributed and transported to the defendant, Lyle E. Jensen, for the purpose of resale by the said defendant, Lyle E. Jensen, to the public and that at the time said candy was sold, distributed, packed and transported by the said defendant, Nash-Finch Company, to the said defendant Lyle E. Jensen, the said defendant, Nash-Finch Company, knew that such candy would be resold and redistributed to the public at retail by the defendant, Lyle E. Jensen.

"7. That the said candy hereinbefore described was not pure and not free from contamination and that the carton containing the said candy, as well as the candy, and sold, distributed, packed and transported by the said defendant, Nash-Finch Company, to the said defendant, Lyle E. Jensen, at Oldham, South Dakota, was in truth and in fact contaminated and did contain in the granulated sugar and dust sweepings of the interior of said carton, strychnine, either in the form of the alkaloid or some common commercial salt thereof, and that there was sufficient quantity of strychnine therein contained, to cause a definite contamination of the surface of the candy for which the carton was used as a shipping container, and that when said candy was received by the defendant, Lyle E. Jensen, at Oldham, South Dakota, and delivered to the said defendant, Lyle E. Jensen, by the said defendant, Nash-Finch Company, it was in the contaminated condition hereinbefore set forth and described."

The principal question involved upon this appeal is the liability of the Nash-Finch Company under the facts alleged.

"Although differing in their reasoning, it is generally agreed by the authorities that a manufacturer, packer, or bottler of foods or beverages is directly liable to a consumer for an injury caused by the unwholesomeness or unfitness of such articles although purchased from a dealer or middleman and not from such manufacturer, bottler, or packer." 26 C.J. 785. Cf., Annotations, 17 A.L.R. 672; 39 A.L.R. 992; 63 A.L.R. 340; 88 A.L.R. 530; 105 A.L.R. 1502; 111 A.L.R. 1239. According to one line of cases the liability is said to arise from an implied warranty. Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305; Davis v. Van Camp Packing Company, 189 Iowa 775, 176 N.W. 382, 7 A.L.R. 649. But most courts in the absence of direct contractual relations deny liability upon the ground of implied warranty. We are inclined to the view that lacking representation to the public in the form of advertisements, labels, or other similar forms, there is no warranty to a subpurchaser upon which to predicate liability. Pelletier v. Dupoint, 124 Me. 269, 128 A. 186, 39 A.L.R. 972; Crigger v. Coca-Cola Bottling Company, 132 Tenn. 545, 179 S.W. 155, L.R.A.1916B, 877, Ann. Cas.1917B, 572. We accept as better reasoning the line of cases which place the liability upon negligence. Again, however, the authorities are not agreed upon what constitutes a sufficient allegation of negligence, or what constitutes sufficient evidence to take the case to a jury. Some courts hold that mere presence of impurities in food is not evidence of negligence. Swenson v. Purity Baking Company, 183 Minn. 289, 236 N.W. 310; Nichols et al v. Continental Baking Company, 3 Cir., 34 F.2d 141. Others hold that such presence does give rise to an inference of negligence. Norfolk Coca-Cola Bottling Works v. Krausse et al., 162 Va. 107, 173 S.E. 497; Kroger Grocery & Baking Company v. Schneider, 249 Ky. 261, 60 S.W.2d 594; O'Brien v. Louis K. Liggett Company, 282 Mass. 438, 185 N.E. 28; Minutilla v. Providence Ice Cream Company, 50 R.I. 43, 144 A. 884, 63 A.L.R. 334. See, also, Annotations, 4 A.L.R. 1559; 47 A.L.R. 148; 105 A.L.R. 1039. The cases holding that the presence of impurities raises an inference of negligence reason that ordinarily impurities would not without negligence be found in food; that the specific facts which constitute the negligence being particularly within the knowledge of the manufacturer or packer, and not within the knowledge of the consumer, it follows there should arise from the mere presence of impurities this inference of negligence. This reasoning with respect to food is in accord with the settled rule that negligence may be set forth in general terms, where the specific facts are more largely within the knowledge of the defendant. Roster v. Inter-State Power Company, 58 S.D. 521, 237 N.W. 738. So, while we accept the rule that negligence is the basis of liability, we are further of the opinion that justice will be more nearly accomplished by also accepting that rule, which seems to be in line with the holding of this court in the Roster v. Inter-State Power Company case, to the effect that, in an action by the consumer against the manufacturer or packer, an inference of negligence does arise from the mere...