321 Mass. 423 | Mass. | 1947
This is an action of tort to recover damages for illness from trichinosis resulting from eating fresh pork shoulder which had been processed and sold by the defendant, a packer, and which was thereafter purchased on October 17, 1936, by the plaintiff from a retail dealer. The pork was alleged to have been infested with trichinae or parasitic worms, which breed and multiply when taken into the human system and after getting into the blood stream become lodged and encysted in the muscles. The plaintiff had a verdict upon a count based on negligence. The case is here upon the exceptions of the defendant to the denial of a motion for a directed verdict, to certain rulings on evidence, and to the denial of a motion for a new trial and of a motion to set aside the verdict which was returned after the jury had separated and had then again been given the case for further consideration. ¡v
The defendant does not argue that the evidence was not sufficient to warrant findings that the pork was put upon the market by the defendant,, that it contained trichinae, that it was purchased by the plaintiff from a retail dealer, and that as a. result of eating the pork the plaintiff became ill. The defendant contends that, the evidence does not show any negligence on its part. It introduced evidence tending to show that a packer is unáble to determine with any degree of certainty that the carcass of a hog does not contain trichinae without taking so many specimens as to destroy the carcass as salable food, except in instances where the first specimens show the presence of these parasites; that the absence of the parasites in the specimens does not indicate that they are not present in some other portion of the carcass; that the inspections made under Federal and State regulations do not require any tests for trichinae; that the presence of trichinae cannot be detected by any known practical method of inspection; and that fresh pork is not intended to be eaten raw and, even if it does contain trichinae, it is not unwholesome if properly cooked* Doubtless, the testimony which was introduced
' This expert testified that the presence of trichinae in the carcass of a hog could be determined by the microscopic
The plaintiff urges that negligence of the defendant may also be predicated upon violation of G. L. (Ter. Ed.) c. 94, § 150, which imposes a penalty upon one who sells any. product of a diseased animal or any tainted, diseased or unwholesome meat, without disclosing its condition to the buyer, except where the article is packed in a container so that its condition cannot be ascertained by a reasonable inspection. This statute has been construed and applied in various decisions of the court, Schuler v. Union News Co. 295 Mass. 350; Mellace v. John P. Squire Co. 306 Mass. 515; Flynn v. Growers Outlet, Inc. 307 Mass. 373; Commonwealth v. Economy Grocery Stores Corp. 313 Mass. 70, while in other decisions we have said that its application to the particular facts presented was doubtful, Flynn v. First National Stores Inc. 296 Mass. 521, 524, and in other decisions, where negligence was made out at common law, it became unnecessary to decide whether liability might also be established under the statute. We think that is the proper course to adopt here. Flynn v. First National Stores Inc. 296 Mass. 521. Bergantino v. General Baking Co. 298 Mass. 106, 108. In passing it might be said that there is a conflict of authority in other jurisdictions as to whether
The plaintiff prior to the purchase of the pork had lived in this country for four months. There is nothing to show that she knew that by subjecting the pork to a heat of one hundred thirty-seven degrees Fahrenheit any live trichinae would be killed. She had cooked pork a few times before. She “had always cooked meals and run a house and . . . she could cook everything.” She testified as to the manner in which she cooked the patties from meat cut from the fresh shoulder, the method she employed in roasting the remainder of the fresh shoulder, and the tests she made from time to time to ascertain whether the patties and the shoulder were sufficiently cooked. The patties were fried in oil until they were brown on the inside, and the shoulder was roasted for more than two hours in an oven at which she set the heat at four hundred degrees. The jury could find that she cooked the pork as thoroughly as could be reasonably expected, and that she was not contributorily negligent. Holt v. Mann, 294 Mass. 21, 24. Botti v. Venice Grocery Co. 309 Mass. 450, 453.
The jury took the case on a Friday and returned a sealed verdict on the following Monday morning. The judge ordered the sealed verdict to be returned to the jury, and the jury retired after the judge told them that if they desired additional instruction they could put the questions in writing and he would consider them. The jury soon returned with a written question concerning which the judge and counsel conferred and agreed upon the answer after the form of the question had been changed. The jury then returned with a verdict for the plaintiff. The defendant subsequently filed a motion to set aside the verdict and
Exceptions overruled.
Ketterer v. Armour & Co. 247 Fed. 921. Cheli v. Cudahy Brothers Co. 267 Mich. 690. Dressler v. Merkel, Inc. 247 App. Div. (N. Y.) 300. Lucey v. Harstedt, 270 App. Div. (N. Y.) 900. Tavani v. Swift & Co. 262 Pa. 184.
Ward v. Great Atlantic & Pacific Tea Co. 231 Mass. 90. Tonsman v. Greenglass, 248 Mass. 275. Richenbacher v. California Packing Corp. 250 Mass. 198. Doyle v. Continental Baking Co. 262 Mass. 516. O’Brien v. Louis K. Liggett Co. 282 Mass. 438. McSpedon v. Kunz, 271 N. Y. 131. Greco v. S. S. Kresge Co. 277 N. Y. 26. Catani v. Swift & Co. 251 Pa. 52.
Troietto v. G. H. Hammond Co. 110 Fed. (2d) 135. Feinstein v. Daniel Reeves, Inc. 14 Fed. Sup. 167. Zorger v. Hillman’s, 287 Ill. App. 357. Cheli v. Cudahy Brothers Co. 267 Mich. 690. Dressler v. Merkel, Inc. 247 App. Div. (N. Y.) 300, affirmed 272 N. Y. 574. Blume v. Trunz Pork Stores, Inc. 269 App. Div. (N. Y.) 1059. Lucey v. Harstedt, 270 App. Div. (N. Y.) 900. Leonardi v. A. Habermann Provision Co. 143 Ohio St. 623.