Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiffs contracted trichinosis, allegedly suffered as a result of eating "schinken" (ham) purchased from defendant. They sued for damages, recovery being sought on two theories: implied warranty that the food was fit for human consumption, and negligence. The jury returned a unanimous verdict of no cause of action in favor of defendant. Plaintiffs' appeal from the resultant judgment entered on the verdict is based on claimed irregularities in the verdict.
In its charge the court had carefully and fully set out the two theories on which plaintiffs sued, and defendant's denial of any implied warranty or negligence. It then posed several questions for resolution by the jury, among them those relating to defendant's negligence and breach of implied warranty. These were followed by a detailed restatement of the two legal propositions and plaintiffs' burden of proving them. Thus, the trial judge informed the jury in the clearest language as to what the theories of the case were and what it had to find. Nonetheless, when the jury returned from its deliberations (these lasted slightly over half an hour) the record shows the following happened:
"The Clerk: Members of the Jury, have you agreed upon a verdict?
The Clerk: What do you find?
The Foreman: We find the defendant not guilty of negligence.
The Clerk: By that you mean no cause of action, an unanimous verdict?
The Clerk: * * * You say you find no cause of action in favor of the defendant Helmut H. Wildermann, trading as The Boulevard Pork Store, as against the plaintiff Henry Neumann, individually, and Jacob Erich Neumann, by his guardian ad litem , Henry Neumann, and so say you all?
Plaintiffs' attorney then called the court's attention to the fact that the jury had made no finding on the question of warranty, and specifically requested the court to instruct the jury on this question and "have them deliberate and have a finding on that count." The answer of the court to the objection was -- and this happened in the jury's presence -- "Well, the jury has ...