Opinion
No. 91-01064.
Decided May 5, 1992.
Matthew Rucker, pro se. Lee Fisher, Attorney General, and John P. Reichley, Assistant Attorney General, for defendant.
On March 9, 1992, this matter came to trial before a referee of this court. On April 2, 1992, the referee issued a report wherein he recommended judgment for defendant. See Appendix.
Civ.R. 53(E)(2) states that "[a] party may, within fourteen days of the filing of the report, serve and file written objections to the referee's report." Neither party has filed an objection to said report.
Upon review of the record and the referee's report, it is the court's finding that the referee was correct in his analysis of the issues and application of the law. Accordingly, this court adopts the referee's report and recommendation as its own. Therefore, judgment is rendered in favor of defendant and against plaintiff. Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
Judgment for defendant.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.
APPENDIX
FRED D. GARTIN, Referee.
On January 3, 1992, plaintiff, Matthew Rucker, filed this pro se action against defendant. Plaintiff alleges that defendant's agents sold him bread on November 20, 1990, which was one day past the sale date on the bread package. Plaintiff further alleges he consumed the bread, discovered it was moldy, and became ill.
On March 9, 1992, this action came on for trial before a referee sitting by order of the court at the Ross Correctional Camp at Chillicothe, Ohio. The findings and conclusions herein are derived from the documents, pleadings in the court file, and evidence admitted at trial.
Plaintiff's claim alleges a violation of R.C. 3715.52, which states in part:
"The following acts and causing them are prohibited:
"(a) The manufacture, sale, or delivery, holding or offering for sale of any food, drug, device, or cosmetic that is adulterated or misbranded."
Food is adulterated if "[i]t bears or contains any poisonous or deleterious substance which may render it injurious to health." R.C. 3715.59. Therefore, assuming defendant sold plaintiff bread with mold, it would be a violation of R.C. 3715.52. The sale of unwholesome food in violation of R.C. 3715.52 is negligence per se. Portage Markets Co. v. George (1924), 111 Ohio St. 775, 146 N.E. 283. Defendant also has a duty to use utmost care and caution in selling food for human consumption. Ward Baking Co. v. Trizzino (1928), 27 Ohio App. 475, 161 N.E. 557. Additionally, defendant impliedly warrants that the bread in its original package is wholesome and fit. Stranahan Bros. Catering Co. v. Coit (1896), 55 Ohio St. 398, 45 N.E. 634.
The referee finds that plaintiff did purchase a loaf of bread containing mold from defendant's commissary. However, the referee finds that plaintiff has not proven that he consumed any of the bread that was sold to him. Defendant's commissary sales manager, Walter Woodruff, testified that plaintiff brought in a full loaf of bread complaining it was moldy and he was given in exchange a full loaf of bread. Therefore, plaintiff has not proven he was damaged or suffered injury.
Based upon the foregoing analysis and finding no damages to the plaintiff, the referee recommends that judgment be rendered in favor of defendant.
So recommended.