Armour & Co. v. Leasure

Offutt, J., delivered the opinion of the Court. Olive R. Leasure, the appellee in this case, became seriously ill a short time after eating a part of the contents of a can of corned beef which she had purchased from a grocery store in Cumberland, Maryland. The can bore on its label the following representations: On the front and back of the label there appears a dish which contains what appears to be a picture of slices of corned beef, and there is also contained on the dish a picture of ³⁹⁷ lettuce, pickles and olives. The reading matter on the label is as follows: (Front and Back) “Armour’s Star * Trade Mark famous flavors!

Corned Beef 12 ozs. net Wt. Made in Brazil Packed for Armour and Company— Chicago, 111., U. S. A. (Side) Armour’s Star * Quality Corned Beef For Corned Beef Hash: Mix 1 can chopped Corned Beef 3 cups chopped cooked potatoes 1 small minced onion, Y¿ teaspoon salt, Y& teaspoon pepper, 2 tablespoons Star Bacon drippings and sufficient milk to moisten. Place in a covered dish bake 15 minutes in a moderate oven, 350 F. Remove cover and continue baking 15 minutes or until brown.

Serves 6 average portions. 340 G R M NETO For Sandwiches: This package contains enough Corned Beef, when sliced into Ys inch slices, to make 12 delicious sandwiches. Place between slices of bread spread with Cloverbloom Butter and mayonnaise dressing. (Side) Armour’s Star * Quality Corned Beef. The name ‘Armour’s Star’ is your guarantee of purity and wholesomeness.

To open — attach key and turn right. Remove the contents whole. Wrap unused portion in waxed paper and keep in a cool place. To slice cold chill contents thoroughly before opening.

Frigorífico Armour Livramento Brazil Ready to Serve Recommended Serial No. ⁴⁴¹³ By the Bureau of Foods Sanitation and Health Good Housekeeping Magazine. The following code marks appear on top of the twelve ounce cans packed by us here: In a circle — the letters BRASIL 7 SIF and just to the left of the circle the letter P, and on the bottom of the container the following letters and numerals: P 1.” On the theory that her illness was a result of defendant’s negligence caused by some toxic substance in the corned beef which made it unwholesome, appellee brought this action against Armour & Company, a corporation, the appellant, to recover compensation for the loss and injury which she suffered as a result of her illness. The trial resulted in a verdict and judgment for the plaintiff, and this appeal is from that judgment. ³⁹⁸ There are three exceptions in the record, one, the first, deals with a question of evidence, the other two deal with the rulings on the prayers. The appellant offered nine prayers, all of which were refused.

Each of those prayers sought a directed verdict for the defendant on one or more of several theories, all of which can be considered in connection with the refusal of its general demurrer or “A” prayer. In dealing with the question raised by the refusal of that prayer it may be said, by way of premise, that the burden of proof was upon the plaintiff to show by legally sufficient evidence that she purchased the can of corned beef from a storekeeper in reliance upon the representation of the defendant, express or implied, that it was edible and wholesome, that the defendant had mediately or immediately sold or delivered the food to the storekeeper for resale in the original package, that it was unwholesome and poisonous,-that its toxic quality resulted from the failure of the manufacturer to exercise ordinary care in the manufacture or inspection of the same, and was the proximate cause of appellee’s illness. On the other hand it must be assumed that all evidence tending to support thé appellee’s claim, and all inferences reasonably deducible therefrom, are true, and, in the absence of any variance prayer, the right of the appellee to recover depends upon the evidence irrespective of the pleadings. Richardson v. Anderson, 109 Md. 641, 651 , 72 A. 485 ; Great Atlantic & Pacific Tea Co. v. Roch, 160 Md. 189, 192 , 153 A. 22 ; Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197 , 4 A. 2nd 757, 767, for, as stated by Judge McSherry for this court: “On demurrer, judgment was given for the plaintiff, on the ground, that, though a man may do a lawful thing, yet, if any damage thereby befall another, he shall be answerable if he could have avoided it.

Broom’s Leg. Max., 161, and cases there cited. It is true these last cases Were in trespass and the declaration now before us is in case. But the prayers at present under consideration are demurrers to the evidence and make no reference to the pleadings; hence ³⁹⁹ the right to recover depends not upon the form of the action or the state of the pleadings, but solely upon the case made by the proof.

Baltimore Bldg. Assn. v. Grant, 41 Md. 560, 569 ; Leopard v. Chesapeake & O. Canal Co., 1 Gill, 222 .” West Virginia Cent. & P. R. Co. v. Fuller, 96 Md. 652, 669 , 54 A. 669 . The evidence in the case tended to prove the facts stated in the following narrative: On May 25th, 1937, the appellee, who was living with her mother, a brother, and a sister, at 537 Columbia Avenue in Cumberland, Maryland, purchased from the Atlantic & Pacific Tea Company store a can of corned beef, which was delivered to her home at about four thirty o’clock in the afternoon of that day. An hour later, in preparing the evening meal, she opened the can, cut off a slice of the beef, placed it on a piece of bread and ate it.

For the meal she prepared the corned beef, scalloped potatoes, and sliced fresh pineapple. The corned beef she served as it came from the can, the potatoes she sliced very thin and baked for a half an hour, ánd she sliced the pineapple thin and put sugar on it. She ate another slice of the corned beef at supper, and her brother and sister also ate part of it, but her mother, who was ill, ate none. One slice was left from the supper and that she put away.

They had supper at six o’clock and the corned beef was then in the same condition as when the can was opened. When she opened it she poured its contents on a plate which she placed on the supper table, and at that time she noticed nothing “whatever as to its color or anything like that.” At about 8.25, something over two hours later, Miss Leasure, her brother, and her sister, all became violently ill. Mrs. Leasure, the mother, called in Dr. W. F. Williams. Dr. Williams found Miss Olive Leasure, the appellee, in a critical condition, pale, cold, unconscious, with a weak thready pulse, vomiting, and suffering also from diarrhea, and in need of hospitalization.

He decided to take all three of them to the hospital, but Olive’s condition was so serious that he was afraid to move her at ⁴⁰⁰ once, but she was taken to the hospital after the other two had been taken there. She remained at the hospital Until‘.May 28th, when she was discharged, but she continued to suffer from “the ill effects” of the attack of illness for several months after that, and her health has never been as good as it was before she became ill. On the day she became ill Miss Leasure had eaten toast, eggs, and coffee for breakfast, and hot cakes, syrup and coffee for luncheon, and had eaten no meat other than the corned beef either on that day or on the preceding day. From the history of the case, from her condition when he saw her at her home, and her condition while at the hospital, Dr. Williams diagnosed her illness as botulism.

Botulism is defined in the American Illustrated Medical Dictionary (1937) p. 222, as, “A type of food poisoning caused by a toxin which is produced by Clostridium {Bacillus) botulinum in improperly canned or preserved foods. It is characterized by vomitting, abdominal pain, difficulty of vision, nervous symptoms of central origin, disturbances of secretion, motor disturbances, dryness of the mouth and pharynx, dyspepsia, a barking cough, mydriasis, ptosis, etc. The term was formerly used synonymously with allantiasis or sausage poisoning.” The corned beef which Miss Leasure ate was manufactured by the Armour of Brazil Corporation, Sant’ Anna do Livramento, Rio Grande do Sul, Brazil, and by it sold, and, as part of a shipment of thirty-two thousand cases of twenty-four cans each, shipped by the steamer Pan America to Armour & Company of Illinois, at New York, early in 1937. It was transhipped by the defendant from New York to one of its branches at Altoona, Pennsylvania, and after that defendant sold nine hundred cases of that shipment, including the particular can sold to Miss Leasure, to the Great Atlantic & Pacific Tea Company, and on May 13th, 1937, the case containing that can was delivered to that company’s retail store in Cumberland, where the particular can under consideration was sold and delivered to Miss Leasure. ⁴⁰¹ John J. O’Conor, manager of defendant’s foreign accounting and import department, said: “Whenever my company makes an offer to the Brazil corporation it is understood that the Armour label marked Tacked for Armour and Company, Chicago, Illinois’ shall be placed on the cans. This label is the customary label placed on our products.

It also appears on the label that the Brazil corporation also manufactured and packed these goods.” It also appeared that Armour & Company of Illinois owns the stock of the Armour of Brazil Corporation. Sidney J. MacBey, manager of Armour of Brazil Corporation’s plant at Rio Grande do Sul, gave a comprehensive and detailed description of that company’s process of manufacturing and canning the corned beef which it produces, and also explained its system of labelling and marking the cans for identification in respect to the time and place of manufacturing and of the several inspections to which the product is subjected. Without attempting to restate that description, it is enough to say that, beginning with the selection of the cattle used, each step in the manufacture of the corned beef is subject to rigid inspection, and every reasonable precaution taken to insure the production of a wholesome product, free from germs or poisonous substances. The meat is ground and cooked for thirty minutes in an open vat at a boiling temperature, is then cured in pickle for twenty-five minutes at . a temperature of 180 degrees.

From the pickle it is transferred to a table, inspected for excess fat, and placed in a stuffing machine which forces it into cans. The cans are placed in a vacuum closing machine where the air is removed and the top sealed on the can. After that the cans are placed in a sealed retort and subjected to-a temperature of two hundred and forty degrees, F., for two hours and ten minutes. They are then cooled by running water over them for one and one-half hours.

When they are taken from the retort they are placed in an incubating room where a temperature of eighty-five degrees is maintained and allowed to remain there for one week. They are then ⁴⁰² taken out, inspected, and labeled, and returned to the incubating room, where they remain for a further period of three weeks. After that they are boxed and stored. They are inspected when removed from the retort by the Brazilian Government and by the corporation employees, and are inspected again when first taken from the incubating room, and again when finally removed from that room, and when shipped they are given a final inspection at the factory.

During the day of the pack which included the can of beef sold to Miss Leasure, samples were taken on four different occasions, and subjected to a laboratory analysis to make sure that the finished product was wholesome. The entire process of manufacture is under the supervision of the Brazilian Government. When the product arrives in the United States it is again inspected, and if, as a result of any of these inspection's, a can is found to be defective, it is rejected and condemned. The .incubating process is to develop any latent defects, because if the can is defective the contents will spoil and the ends swell.

Charles C< Arrera, defendant’s employee, went to the Leasure home and asked that he be given the slice of the corned beef which was left from the supper. That request was refused but he was shown the can from which it had been taken and permitted to copy the label. He only saw two members of the family, a man and a woman, but did not believe that he saw the appellee on that occasion. He also visited the store where that can had been bought, and found two of the “same cans” remaining there.

He bought them and sent them to appellant’s chemical laboratories in Chicago, where their contents were subjected to a bacteriological analysis and also fed to guinea pigs and rats. These tests disclosed that the contents of the cans were free from bacteria or toxic substances and that they were wholesome. Dr. Williams, appellee’s attending physician, who had practiced medicine for twenty-three years, had in his practice attended one case of botulism, and had only seen ⁴⁰³ two cases, both “many years ago,” and apparently relied largely for his knowledge of the etiology of the disease on a medical work called the “Encyclopedia of Medicine” by Pierce Hall of Philadelphia, although apparently he had read other books on the subject. He defined botulism as “A disease caused by an organism that is present in foods, that gains access to the food, and upon the ingestion of it, gives rise to the symptoms in the individual.” He said nothing of the kind or quality or the condition of food in which the bacillus is ordinarily or necessarily found, but agreed with other expert witnesses that any organisms in the can would be destroyed by a temperature of two hundred and forty degrees maintained for two hours and ten minutes.

He testified that in his opinion, based upon his personal examination of her, the history of the case, and his knowledge of the disease, the illness from which Miss Leasure suffered was botulism. He was then asked to state, in answer to a hypothetical question, his opinion as to “what was the cause of the botulism in the plaintiff, Miss Leasure,” and he replied, “That the corned beef was the cause of it. May I add * * * the history as I was able to gather it, after, was to the effect that Miss Olive had eaten heartily of the corned beef. The others had eaten it, but the one who ate the most seemed to be the sickest and was the sickest.” An objection to the question was overruled and that ruling is the subject of the first exception.

The witness was cross-examined at length both as to his diagnosis and as to his statement that the appellee had contracted the disease from eating the corned beef, but the examination developed nothing which could permit the court to say that either statement was so inherently incredible as to wholly lack probative force. It is true that Dr. Frank W. Wilson, who testified for the defendant, and whose personal knowledge of actual cases was quite as limited as that of Dr. Williams, disagreed with Dr. Williams’ diagnosis, but a mere difference of ⁴⁰⁴ opinion between experts could not possibly justify a court in saying that the opinion of one or the other is worthless, since that question is essentially one for the jury to decide. Much of the medical testimony related to the symptomatology. of botulism and gastro-enteritis. Dr. Williams diagnosed the disease as botulism.

Dr. Wilson, upon the same facts diagnosed it as gastroenteritis, and both relied upon the same text book in support of these conflicting theories. In that situation it was the province of the jury, in the light of the attendant facts and circumstances; to decide which witness was right. And in view of the flat, positive and uncompromising testimony of Dr. Williams, it must be assumed for the purposes of the case that the appellee suffered from botulism, for it is not for the court to say that the deliberate opinion of a respectable and competent physician who has been in active practice for twenty-three years as to the nature and character of a disease from which his patient suffered has no probative force. So we come to what is the vital arid controlling question in the case.

Assuming that appellee suffered from botulism, did she contract the disease from eating the corned beef sold under appellant’s label? The appellee contends that the presence of the Clostridium Bacillus botulinus in