On defendant's appeal from the Supreme Court.
For the appellant, Alexander M. MacLeod.
For the respondent, Nathan Rabinowitz.
The opinion of the court was delivered by
PARKER, J. The case for the plaintiff-respondent was that she had bought from appellant company a can of canned peaches for use as food, and had been made violently ill as a result of eating part of the contents of the can. She based her suit on warranty, express or implied, or both, that the peaches were wholesome and fit for consumption by her, and on alleged breach of that warranty. Defendant answered with a general denial. The court denied a motion to nonsuit on the ground that there was no evidence to indicate either that the peaches were unfit for food, or that plaintiff had suffered injury as a result of eating them. The same disposition was made of a motion to direct a verdict for defendant on similar grounds. The court further overruled a claim of express warranty made by plaintiff, on the ground that the evidence did not support it, and gave the case to the jury on the theory of implied warranty alone. From a verdict and judgment for plaintiff, defendant appeals, and assigns as grounds, error in the refusal to nonsuit and direct, and error in the charge.
On the facts, there was a plain case for the jury. The plaintiff, Mrs., Griffin testified that she went to defendant's store to buy some sugar and butter, and was waited on by the salesman accustomed to serve her: that after she had completed this purchase and was ready to leave the store he said, "don't you want to try a can of our peaches?" He says, "we have got them on sale," he said, "a large can," he says, "for seventeen cents," he says, "and they are a good, large can," and I says, "well, all right, and then I will take one can and if we find we like them I will get some more."
This testimony regarding the sale and purchase of the peaches at defendant's store was not denied. The only witnesses for defendant were an employe of the California packing concern that put up the peaches in cans, and four physicians,
two of whom attended plaintiff or some member of her family at her home and at the hospital, one was called as a medical expert, and the fourth was pathologist of the National Canners' Association at Washington. The testimony for plaintiff indicated that the can of peaches was opened at her house just before supper, and the contents emptied into a glass dish. Those at supper were plaintiff, her son, her daughter Mrs. Berni, and two of Mrs. Berni's children. Besides the peaches, there were tea and toast, and the son had an egg, and one or more of the children may have had milk. All ate the peaches except the son. All except the son were made violently ill with diarrhoea and vomiting and other symptoms of acute gastric and intestinal disturbance. Mrs. Berni, who joined as plaintiff in her own right (Practice act of 1912, section 4) and was nonsuited for reasons presently to be stated, was ill eight weeks and was reduced in weight from one hundred and forty-five pounds to ninety pounds. Her little boy died within twenty-four hours, and the other child died at the hospital. Plaintiff herself was in bed three months. Her son, William, was the only one that came through unscathed, and the only one that did not eat the canned peaches. The evidence was to the effect that tea, toast, milk and egg were in the usual condition and presumably wholesome. The inferences, therefore, that the party were poisoned by bad food, and that such bad food could have been none other than the peaches, were legitimate, if not indeed necessary; and hence, there was a clear case for the jury on the facts.
As has been stated, the court laid the case before the jury on the theory of implied warranty arising out of the provisions of section 15 of the Sale of Goods act. Pamph. L. 1907, p. 316; Comp. Stat., p. 4650. There was a nonsuit as to Mrs. Berni, the other several plaintiff, on the ground that she was not a party to the sale, and hence not entitled to the benefit of any implied warranty. She does not appeal, and therefore we are not concerned with this phase of the litigation. With respect to warranty in favor of Mrs. Griffin, the respondent, the judge charged the jury in the following
language, which by the fifth (and only remaining) ground of appeal, is assigned as error:
"The plaintiff in this case alleges in her complaint regarding this sale of the can of peaches to her by the salesman of the defendant that there was an implied warranty as to the quality and fitness of the peaches for ...