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District Court of Appeal, First District, Division 2, California.


Civ. 9277.

Decided: October 17, 1934

Glensor, Clewe, Schofield & Van Dine, of San Francisco, for appellants. Joseph E. Bien and Werner Olds, both of San Francisco, for respondent.

Plaintiffs sought to recover damages for injuries sustained by them as a result of eating salami purchased by them from the defendant. The action was tried before a jury. Defendant's motion for nonsuit was denied as were defendant's and plaintiffs' motions for directed verdict. The jury returned a verdict of $1,500 in plaintiffs' favor and the court then granted defendant's motion for judgment “non obstante veredicto” on the ground that “the verdict is contrary to evidence and there is no law in this state to sustain the verdict.” Plaintiffs moved for new trial on the grounds (1) that the trial court erred in granting the motion for judgment non obstante; (2) that the verdict was against law because it was so small; and (3) that there were errors of law at the trial. This motion was denied, and plaintiffs appeal.

The testimony shows that plaintiffs bought a piece of salami on August 10, 1931, and consumed it on August 11th and 12th. Plaintiffs testified that they had eaten no pork of any kind for about a year previous to August 11th (Jules Gindraux, on cross-examination, changed his testimony to three months prior to August 11th). Mr. and Mrs. Gindraux each became infected with trichinosis within ten days after consuming the salami and Dr. Monteith testified that symptoms of infection from trichinosis usually appear in from six to ten days. Dr. Alexander testified that the only possible source of infection from which appellants could have gotten the disease was from the consumption of infected pork.

Defendant quotes other parts of the record in an attempt to discredit plaintiffs' testimony that they had eaten no pork for a year. It also states that the testimony conclusively shows that the salami was purchased by defendant from Armour & Co. and that all of the salami coming into defendant's place of business has the “Government Inspected” stamp marked “U. S. Inspected 2/B.” Defendant then explains the process used by Armour & Co. in preparing salami, which process includes heating the pork to 150 degrees Fahrenheit for fifteen hours and 165 degrees Fahrenheit for six hours. Dr. Maier Brodner, United States inspector, testified that such plants as the Armour plant are supervised by the government and that 137 degrees is recognized as sufficient to kill any live trichina that may be present in the muscle tissue of the pork which may constitute part of the salami. He also testified that he had never heard of a person being ingested with trichina from government inspected meat. There is no direct testimony which shows that the salami purchased by plaintiffs on August 10th was actually infected. On the other hand, the undisputed evidence is that this salami was received from Armour & Co. in a sealed package and was sold to plaintiffs by the slicing of a portion off the end of this sealed package. The undisputed evidence further shows that defendant's place of business was sanitary in every respect and that inspection by government inspectors immediately prior to the sale reported full compliance with all sanitary rules.

The appellants' first contention is that the trial court erred in granting the motion for judgment non obstante. As we view the case, this was proper, because the plaintiffs were not entitled to recover on the undisputed evidence as a matter of law. Hence any error in procedure becomes immaterial since plaintiffs are not entitled to recover even upon their own case.

The liability of a vendor of foodstuffs for immediate consumption is discussed under two separate theories–liability arising from the negligence of the vendor, and liability arising from an express or implied warranty. Cases resting on the negligence of the vendor are all beside the issue involved here, because the undisputed evidence shows that there was no negligence. Liability resting on an implied warranty is discussed under two distinct classes; a distinction which is not always observed in the cited cases but which is most important to this inquiry. First, the liability of the manufacturer to the consumer of an article of food to be sold by a dealer for immediate consumption. Second, the liability of the vendor to the consumer arising from the sale of (a) manufactured articles of food sold in cans or sealed packages, and (b) articles of food prepared by the vendor or handled by him in such a way that the consumer relies upon the vendor's inspection and treatment. The case here presented is a “sealed package” case where the vendor sold the manufactured article without possibility of inspection and without negligence.

The rule of liability in such cases is fully stated in 11 Ruling Case Law, page 1124, from which we quote: “The early rules of law were formulated upon the theory that the provision dealer and the victualer, having an opportunity to observe and inspect the appearance and quality of the food products offered to the public, were accordingly charged with knowledge of their imperfections. But no knowledge of the original or present contents of a perfect appearing can or sealed package is possible in the practical use of such products. They cannot be chemically analyzed every time they are used. Accordingly, the reason for the rule having ceased, a new rule should be applied to the sale and use of packed goods that will more nearly harmonize with what is rational and just. While there is authority to the contrary, it comports better with justice to hold that where a dealer sells to his customer an article in the original package in which it is put up by the manufacturer, and the customer knows as much about the article as the dealer, and buys it without any representation from the dealer or reliance upon his judgment, knowing that there has been no inspection of it by the dealer, there is no implied warranty, although the dealer knows that the customer buys it for food. No rule of law should imply a warranty of that which it is impossible for a defendant to know by the exercise of any skill, industry or investigation, however great. In other words, neither law nor reason should require impossibilities.”

In Walters v. United Grocery Co., 51 Utah, 565, 172 P. 473, 474, L. R. A. 1918E, 519, a case involving the sale of potato salad prepared by the vendor, this distinction is recognized, the court saying: “There is a well-defined line of cases that holds that retail dealers in selling canned goods for immediate use are not liable unless they can be charged with negligence in the purchase of such food, or with knowledge that the contents were unfit for human consumption. Those cases are determined upon the well-recognized fact that the dealer is not the manufacturer of the goods sold, and is not in a position to know the contents any better than the purchaser, neither the purchaser nor the vendor having had any opportunity to examine and know the condition of the goods contained in the cans sold. To that effect are the following authorities: Tomlinson v. Armour & Co., 75 N. J. Law, 748, 70 A. 314, 19 L. R. A. (N. S.) 923; Julian v. Laubenberger, 16 Misc. 646, 38 N. Y. S. 1052; Mazetti et al. v. Armour & Co. et al., 75 Wash. 622, 135 P. 633, 48 L. R. A. (N. S.) 213, Ann. Cas. 1915C, 140.”

Citations could be multiplied supporting the rule that, when the liability of the vendor is based on the doctrine of implied warranty, the essential element of recovery is the superior knowledge, or means of knowledge of the vendor over that of the vendee. A well-phrased statement of this rule is found in Scruggins v. Jones et al., 207 Ky. 636, 269 S. W. 743, 744, from which we quote: “Formerly foodstuffs were generally sold direct by the producer to the consumer and the former was presumed to know its condition, and held to a strict accountability therefor if it proved to be poisonous or harmful. Also the retailer, selling goods in the open with opportunity for its examination by the sense of touch, sight, or smell, was able to detect its condition, and, in offering it for human consumption, was held to impliedly warrant both its character and condition. Under such circumstances the doctrine of caveat emptor had no application.

“But modern industry has developed a revolution in the production and marketing of food, and materially changed the status of the parties. To-day in the sale of many articles of food the retailer and consumer stand in practically the same position. Both are far removed from the producer. The article comes packed and sealed in a tin container or can. No inspection of the contents can be made without opening the can, and the public generally has learned to rely upon the character and standing of the packer and the quality of certain brands. Neither seller nor purchaser can otherwise judge of its condition and in this respect both stand upon equal footing, so that the rules of the common law relating to foods have been modified to meet the changed conditions, and it is now generally recognized that, where the article is one of general use and put up by a reputable manufacturer or packer in a sealed can, the exterior of which is in good condition, the retailer is not responsible to his customer for the defective or unwholesome condition of the contents, unless and except at the time of the sale he expressly warrants the same to be free from defects. Walden v. Wheeler, 153 Ky. 181, 154 S. W. 1088, 44 L. R. A. (N. S.) 597; R. C. L., vol. 11, § 29, p. 1124; Bigelow v. Maine Central Ry. Co., 110 Me. 105, 85 A. 396, 43 L. R. A. (N. S.) 627.” See note, 90 A. L. R., p. 1269 et seq.

This same principle has been carried into our Civil Code through the adoption of the Uniform Sales Act and in section 1735, subd. 1, we find the provision reading: “Where * * * the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.”

Here the undisputed evidence is that the salami was delivered to the retailer in a sealed package as manufactured by the producer; that it contained the certificate of inspection by the United States government; that the method used by the manufacturer was the only method known to the federal authorities and to medical science for the control of the trichina germ; and that the presence of the germ in pork products cannot be discovered by any known method of inspection other than a miscroscopic examination by one skilled in such examinations.

The undisputed evidence also shows that, when pork is treated in accordance with the federal regulations, all live trichina germs are destroyed and that they cannot again appear in the cooked product. The government certificate is prima facie evidence that this particular salami was prepared in accordance with the federal regulations. The presumption that official duties have been properly performed is evidence that the inspection was properly made before the certificate was stamped upon the product.

For these reasons it follows that, regardless of the questions of procedure argued in the briefs the judgment must be affirmed because the appellants were not entitled to recover.

The judgment is affirmed.

NOURSE, Presiding Justice.