Opinion
No. 31283.
May 28, 1934.
FOOD.
Evidence, in action against packing company for damages because of sickness, alleged to have been caused by poisoning of sausage purchased from merchant, held insufficient to sustain verdict for plaintiff as not showing probability that sausage was contaminated with germs when merchant opened cans.
APPEAL from Circuit Court of Jefferson Davis County.
A.M. Pepper and Johnston White, all of Lexington, for appellant.
The peremptory instruction requested by appellant should have been given.
For more than twenty years this court, in a vast number of cases, has been passing on the question of the liability of the manufacturer of food for human consumption. In no case, however, thus far decided by our court has this question been passed on where the poison or foreign substance in the food was one that could not be seen or felt by the ordinary use of the senses, such as glass, insects or other foreign substance.
Rainwater v. Hattiesburg Coca Cola Bottling Co., 131 Miss. 315, 95 So. 444; Jackson Coca Cola Co. v. Chapman, 106 Miss. 864, 64 So. 791; Pillars v. R.J. Reynolds Tobacco Co., 117 Miss. 490, 78 So. 365; Coca Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305; Curtis Candy Co. v. Johnson, 141 Miss. 762; Coca Cola Bottling Works of Greenwood v. Simpson, 158 Miss. 390, 130 So. 479.
In the present case, there is no proof of any foreign substance or poison in the sausage when the seal was broken, and it is shown by the testimony that under the process of manufacture, there could not possibly have been any. In addition to this, it is proven by uncontradicted testimony that there was ample opportunity for contamination after the seal was broken, and that the sausage could not have remained sterile. This testimony is not only supported by reason, but by scientific truth which is no longer open to question.
Clearly the warranty of the appellant did not extend beyond the breaking of the seal.
Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726; Bowman v. Woodway Stores, 345 Ill. 110, 117 N.E. 727.
The verdict in this case is based on conjecture alone as to any contamination of the sausage at the time the seal was broken and the can opened, and being so based we urge that it must not stand.
Tyson v. Utterback, 154 Miss. 381, 122 So. 496; Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 460; Yazoo M.V.R. Co. v. Green, 147 So. 333; Hercules Powder Co. v. Calcote, 138 So. 583, 161 Miss. 795.
C.E. Thompson and Livingston Milloy, all of Prentiss, for appellee.
This case is principally based upon undisputed evidence which is positive in its probated power and is the best evidence that the nature of the case would permit and most assuredly there can be no doubt that on the point that was in dispute, that is as to when the sausage became unwholesome, the appellee not only had proof in favor of her contention but as we see it, much stronger proof than the appellant had to the contrary. The jury resolved and found this question of fact in favor of the appellee, and as we see it rightly so. This court has held in a great number of cases that the findings of fact by jury will not be disturbed on appeal.
Morris v. St. Louis Railroad, 101 Miss. 768; M.C. Railroad v. Campbell, 114 Miss. 803; Gunter v. Yazoo Railroad, 145 Miss. 475; St. Louis Railroad Co. v. Bowen, 107 Miss. 97.
Argued orally by H.H. Johnson and A.M. Pepper, for appellant, and by W.H. Livingston and G. Milloy, for appellee.
Mrs. McPhail was plaintiff in the court below, and brought suit for damages against the appellant, alleging that appellant manufactured certain sausage, packed in oil, which was sold by a local merchant, and purchased from such local merchant by the plaintiff's husband; that said merchant bought two twenty-pound cans of this sausage, which were shipped out of Memphis on the 16th day of September, 1933, and delivered to the local merchant a few days thereafter; that one of these cans was opened and the sausage therein contained was sold and no complaint was received. The second can was opened on Friday, September 22, 1933, and the sausage sold to various parties, including the husband of the appellant, who made his purchase on Saturday afternoon. Some of this sausage was cooked by the plaintiff on Sunday for the noon meal and was eaten by the members of plaintiff's family with no ill effects. For supper, plaintiff (appellee here) and members of her family ate some of the sausage uncooked, and shortly after eating same, she and some other members of her family became ill, sent for a physician who treated them, and who testified that, in his opinion, their sickness was caused by food poisoning.
The proof shows that the tins containing this sausage were hermetically sealed and cooked under steam pressure at about two hundred forty degrees Fahrenheit; that this can, after being opened, stood in the store with the lid on it when not in use; and that the sausage was taken therefrom with an ice pick, which lay upon a shelf in the store when not in use. It is further shown by the proof that on complaint that the sausage had made the appellee and her family ill, the merchant sealed the balance of it up and returned it to the agent of the appellant. A sample was sent to the state chemist's office to a bacteriologist, who examined it. It was shown that the bacteria found in the sausage was such as could not survive a temperature in excess of one hundred seventy degrees Fahrenheit; that the sausage when put in the tins was subjected to a temperature of from two hundred twenty to two hundred forty degrees Fahrenheit; and that the sausage was made from pure and wholesome meat slaughtered and packed under the supervision of the United States Department of Agriculture. It was further shown by the evidence that germs of the kind found in the sausage could be there by exposure of from twenty-four to forty-eight hours; that there was a germ whose spore could withstand a temperature up to two hundred forty degrees Fahrenheit, but that there was no such germ or spore in the sausage examined by the bacteriologist; that if there had been any such spore or germ in the sausage, it would have been evidenced by a strong odor, and the sausage examined did not have such odor.
There is no dispute as to the method in which this sausage was prepared and packed for sale, which made it impossible for it to become contaminated prior to the opening of the tin. The only testimony introduced to contradict this is that of the physician who attended the appellee and her family, that it was possible for a sausage germ or spore to withstand the temperature to which the sausage had been heated after being packed in the tins.
There was a verdict for the plaintiff in the court below for one thousand dollars, from which this appeal is prosecuted.
We think the proof offered on behalf of the plaintiff is insufficient to raise the probability that the sausage was contaminated with germs at the time the tins were opened by the local merchant. The expert testimony shows that the germs which were found in the sausage could not withstand the temperature to which the tins were subjected, and that they could get into the sausage and develop within the time between the opening of the tin container by the local merchant and the eating of the sausage by the appellee and her family. At most, the proof only amounts to a possibility, and not a probability.
We are, therefore, of the opinion that the evidence is insufficient to sustain the verdict, and the judgment will be reversed and judgment entered here for the appellant. Reversed, and judgment here for the appellant.