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District Court of Appeal, Second District, Division 1, California.


Civ. 10903.

Decided: October 07, 1936

Swaffield & Swaffield, W. Torrence Stockman, and Owen Meredith, all of Los Angeles, for appellant. Stevens Fargo and George W. Fenimore, both of Los Angeles, for respondent.

This is an action wherein the plaintiff recovered a judgment of $1,630, alleged to be the result of negligence on the part of defendant in the preparation and sale of pork sausage which, when later eaten by plaintiff, caused an illness diagnosed by her physician as “botulism.”

The evidence reveals that plaintiff was a widow, 29 years of age; that she lived alone; and until a month previous to the incident complained of had been in the employ of the S. E. R. A. as a seamstress at the monthly wage of $24. On the day in question she ate her breakfast, consisting of a glass of milk and a piece of bread, at 7 o'clock in the morning. She testified that she ate nothing else all day until 5:30 that evening. About 5 o'clock she visited appellant's place of business and purchased a pound of link sausage, which was wrapped in paper held in place by a “sticker.” Plaintiff returned to her home, about four blocks distant, broke off two of the links of sausage, fried them and prepared them in the form of a sandwich. The remainder of the sausage she replaced in the original wrapper which, she testified, she then put “in the ice box on the ice.” She was taken ill as she finished eating the sandwich; her testimony was: “After I had got through eating, just before, I taken a pain in my stomach.” Within a few minutes after she was taken ill neighbors offered their assistance and the police department was notified. By the time the officers had arrived it was dark, and after hearing plaintiff's account of the probable cause of her illness, one of the officers went to the ice box to examine the remainder of the sausage. This was about two hours and a half after the sausage had been purchased. He testified: “‘Let's go back in the kitchen and see if we can find this meat she said she had been eating from.”’ (Addressing one William Hardy, a neighbor, who accompanied the officer to the kitchen.) “And he (Hardy) opened the ice box and we looked for any package that looked like it might hold meat, and there was a package in there that we found some sausage in.” Question by attorney for plaintiff: “What happened to the package? A. Well, it was link sausage, large link sausage, and I believe there was three and a half links, and the half link looked like it had been broken or else cut in half with a very dull knife and had a ragged edge. I laid it on top of the high oven there, the man was with me in the kitchen, and I used my flashlight, and on the open end of the sausage there were several maggots.”

The witness Hardy testified that he, at the same time, saw two maggots “between the links.” The officer was asked whether there was any ice in the ice box, to which he replied: “I couldn't say. We didn't open the ice side.” He also testified that he saw other articles in the ice box, to which he paid no attention.

Plaintiff's physician testified that he diagnosed plaintiff's illness as “botulism,” and that in his opinion it was caused from eating the above–described sausage.

The evidence further reveals that after the ambulance had taken plaintiff to the receiving hospital, the officer took the sausage to the butcher who had sold it to plaintiff, where it was examined and compared with like sausage still on sale. The officer testified that aside from the appearance of the maggots, the sausage which he brought with him gave no evidence, either from odor or appearance, of being unwholesome. The next day inspectors from the Los Angeles health department visited plaintiff's home and obtained the remainder of the sausage. Their testimony was to the effect that there were no maggots at that time and from their examination it appeared fresh and wholesome. It was then taken to the health department for chemical and microscopic examination. The evidence reveals that from this examination the sausage was found to be pure and wholesome and “no organisms of the food poisoning groups were present.”

It was established by expert testimony introduced for the defendant and unrefuted that no examination was made for bacillus botulinus because such organisms only flourish where there is no oxygen present––such as in canned goods. It was also contended by experts for the defense that the effect of food poisoning, particularly botulism, does not manifest itself for several hours after contaminated food is eaten; and, that the appearance of maggots was not necessarily evidence of contamination.

The only expert evidence offered by plaintiff was the testimony of her physician, who testified: “I diagnosed the case as botulism.”

The court found: “That it is true that on or about August 28, 1935, plaintiff purchased from defendant E. F. Smith at 4222 South Central Avenue, Los Angeles, California, for her own consumption, food consisting of meat, and that on or about said date said plaintiff ate said meat so purchased and immediately thereafter became violently ill and suffered severe and permanent injuries and suffered severe nervous shock, to her general damage. * * * That it is true that the aforesaid illness, injury and damage to plaintiff were directly and proximately caused by the negligence and carelessness of defendant E. F. Smith only, in manufacturing, producing, preparing, compounding, packing, offering, keeping and selling the said goods to plaintiff; said food being a filthy, decomposed and putrid animal substance and unwholesome and unfit for human consumption.”

It would appear as a first impression, from a cursory examination of the record herein, that there is merely a conflict in the evidence, and that, therefore, in the absence of prejudicial error, the judgment should stand. A more careful study of the evidence, however, and a consideration of the findings in the light thereof, develop the decisive question herein: namely, whether there is any evidence at all to support the court's findings above quoted in regard to the quality and character of the food. Obviously, if the evidence is insufficient in this respect, the question as to a conflict and also the question as to whether the evidence preponderates are eliminated.

That the finding of the trial court on conflicting evidence will not be disturbed on appeal, is elementary, but that doctrine contemplates that the finding must be based on a “real and substantial conflict upon material points.” 2 Cal.Jur., § 545, p. 929. In that connection it should be noted that upon the issues raised by the pleadings, the plaintiff was bound to assume the burden of proof and in the end prevail by a preponderance of the evidence. If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary. Patterson v. San Francisco, etc., Railway Co., 147 Cal. 178, 81 P. 531. A judgment cannot be based on guesses or conjectures. Puckhaber v. Southern Pacific Co., 132 Cal. 363, 64 P. 480. And, also, “A finding of fact must be an inference drawn from evidence rather than on a mere speculation as to probabilities without evidence. A majority of chances never can suffice alone to establish a proposition of fact, since the slightest real evidence would outweigh all contrary probabilities.” 23 Cor. Jur., § 1750, p. 18.

In analyzing the evidence adduced at the trial, it is at once apparent that the presence of the maggots is a treacherous circumstance––a circumstance fraught with the capability as well as the tendency to deceive and mislead. The memory of that with which maggots are generally associated from common experience naturally arouses a feeling of revulsion. Under the influence of emotions thus aroused, a greater significance and importance might easily be attributed to the presence of maggots than pure reason would allow. Biologically, maggots are but the larvae of insects, most commonly that of the house fly. They are not poisonous; indeed, it is conceded that maggots are used in modern surgery for the treatment of open wounds. Moreover, maggots are not found exclusively on “filthy, decomposed and putrid animal substance.” Their presence, therefore, standing alone, furnished no evidence that the sausage was of the quality and character found by the trial court.

The record reveals but two facts legally established by plaintiff to support the judgment: First, that she became ill while eating the sausage; and, second, that there were maggots on the remainder of the sausage. It further appears as an opinion or suggestion of Dr. Towles, plaintiff's attending physician, that the sausage caused plaintiff's illness. Dr. Towles' testimony on that subject on direct examination was as follows:

“Q. Given a further history of the diet of this woman during the twenty–four hours preceding her illness, consisting wholly of milk and bread in the morning, about seven a. m., and a sandwich, consisting of pork sausage fried in lard, and bread, a matter of an hour or so preceding her attack, with the further explanation that the lard and the bread, the remaining portion had been eaten without ill effects by several other people, would you be able to state from what source the bacteria botulini came, which made her ill? A. Well, I would say that it came from something that she ate.

“Q. But if that were all she ate would you be able to tell what product contained the bacteria? A. I would by a process of elimination.

“Q. And what product would that be? A. It seemed to have been only the sausage.” (Italics added.)

Conceding to such testimony any value to which it might be entitled, nevertheless it is at the most but an inference, not a fact, and the further testimony of the witness that because the food caused plaintiff's illness it therefore was poisonous, is also but an inference––an inference, moreover, open to the further objection that it is based on an inference, which is a process of reasoning rejected by the law. An inference cannot be based on an inference. Section 1960, Code Civ.Proc. Thus the record is left without evidence, direct or inferential, that the food in question was “filthy, decomposed and unwholesome,” as the court found.

At the close of the trial, the court made the following comments on the evidence, in part as follows: “The court is convinced, after very carefully listening to and weighing the evidence in this case, that this plaintiff was stricken by reason of this sausage which she had purchased from the defendant and had consumed. The court makes no finding as to whether it was botulism or not from which the plaintiff suffered; and the court does not believe that the plaintiff is required to prove any specific named poisoning or ailment. It may have been that she was suffering from some poison that medical science has not yet isolated or discovered. The court is convinced that whatever she may have suffered from was the direct and proximate result of the fact that this sausage contained some substance, or was in itself in such a condition as to proximately cause her injury.” While the reasoning of the trial judge is held to be ineffective for any purpose if the findings and judgment are valid in every respect, nevertheless the foregoing observations by the trial judge are urged in support of appellant's argument that the judgment is speculative. As to this phase of the appeal, such reference is not inappropriate, nor indeed without merit.

There is no legal evidence in the record in support of the finding that the food in question was “filthy, decomposed and putrid animal substance, and unwholesome and unfit for human consumption.”

The judgment is reversed, and cause remanded.

I dissent. As in substance is alleged in plaintiff's complaint, one of the determinative questions of fact upon which her cause of action depended was whether defendant had sold to plaintiff food that was “unwholesome and unfit for human consumption.” In effect, by its findings of fact the trial court declared that plaintiff's allegation in that regard was true; and in that connection, in appellant's closing brief he expressly admits not only that in selling the food to plaintiff, he gave to her an implied warranty that it was fit for human consumption, but also, that “if there was any evidence produced at the trial tending to prove that the sausages complained of were unfit for human consumption at the time they were sold, the judgment rendered should not be disturbed.”

In other words, as far as this appeal is concerned, the only issue before this court is plainly limited to a determination of whether on the trial of the action evidence of a substantial nature was introduced from which it properly might be inferred that the sausage in question was “unwholesome and unfit for human consumption.”

The first evidence of the unwholesomeness of the sausage is that at least a part of it was infested with maggots; and as a clear indication that the maggots were not simply on the outside of the sausages, but that they actually infested them, testimony given by a police officer, as appears in the record, is as follows:

“Q. How long were the largest of those worms? A. Well, they appeared to be about a quarter of an inch, they were sort of fastened onto the meat and were wriggling.

“Q. That is, one end would be sticking in the meat? A. Yes, they never fell off or anything, they were just moving.

“Q. How many would you say you saw? A. At least several.

“Q. That is, more than one or two? A. More than seven or eight.”

It is obvious that the inference naturally follows that as to that particular sausage it was at least both unwholesome and unfit for human consumption. But in that regard, the finding made by the trial court to that effect is not compelled to rest solely on that inference. Testimony that was given by the doctor who attended plaintiff in her illness included statements, in substance, that maggots live only on putrefied matter; that they do not eat “clean” flesh, but that only which is decayed. In part the doctor testified as follows:

“Q. And what is it that maggots feed on, on what type of food? A. Putrid material.

“Q. Do they in fact feed upon wholesome, clean flesh? A. They do not.

“Q. Have you had experience or study that leads you to that answer? A. I do.

“Q. What is that? A. Well, they are taking maggots now and inserting them in tissues and letting them go down to the bone, especially in cases of osteomyelitis, inflammation of the covering of the bone, where they have a slow healing or nonhealing process. Now medical science is inserting maggots in the place to eat out the decayed flesh, the rotten material.

“Q. Don't the maggots eat the clean flesh? A. They do not. * * *

“Q. * * if there were maggots on the sausage, would that have any connection with Mrs. Reese's disease? A. It would.

“Q. In what manner? A. If the maggots were on the sausage it would give more evidence to show that the sausage was in a putrifactive state.

“Q. But that is the only thing the presence of maggots would convey to you? A. That is one of the things that maggots would convey.

“Q. Are maggots poisonous, if you eat them? A. Maggots are sometimes poisonous, but are most assuredly poisonous in food material. It shows there is a putrifactive process going on and a chemical change going on in the food or media in which they exist. * * *

“Q. * * * How about the maggots themselves? A. The maggots themselves may be clean or may be toxic.

“Q. They may be poisonous; is that correct? A. Yes.

“Q. They may or may not be? A. They may or may not be, but you can develop a maggot––maggots are even grown and put into decayed flesh, but they are put there only to eat the decayed flesh; they only thrive on decayed particles of matter.”

Regarding the probable effect upon a human who had eaten maggots that had fed upon putrid flesh, the doctor states as follows:

“A. A person could eat maggots and they might be consumed in the system or they may go into the intestinal tract and there develop and pass through the intestinal tract whole; but they are most certainly toxic in the intestinal tract. * * *

“Q. Then they are somewhat poisonous, and if I am in a weakened condition I will get it, and if my strength is strong enough I will throw it off. A. They are certainly not wholesome. * * *

“A. I won't state that a maggot in itself, just to lay a maggot out that had been grown, would be absolutely poisonous, just toxic poison.

“Q. Will you state it is not poisonous? A. Well, that depends. If a maggot is brought out of a very dirty, filthy place you know he contains matter that is toxic. * * *

“Q. Now, getting to decayed meat, is there anything poisonous about putrefied meat? A. Yes there is.”

The subsidiary question as to the scientific name of the poisonous germ that was present in the putrid and maggot–infested sausages was of no decisive importance. From a legal standpoint, the injection of that issue into the case was nothing less than an adroit attempt on the part of defendant to distract the attention of the court from that which appellant now concedes was the ultimate and determinative fact, to–wit, of whether the sausages “were unfit for human consumption.”

To my mind, it is evident that substantial evidence was before the trial court from which it became fairly inferable that the sausage which plaintiff had eaten was neither wholesome nor fit for human consumption. And if my conclusion in that regard is correct, it inevitably follows that the judgment should be affirmed. Gindraux v. Maurice Mercantile Co., 4 Cal. (2d) 206, 47 P.(2d) 708, and authorities there cited.

DORAN, Justice.

I concur: YORK, J.

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