110 Me. 105 | Me. | 1912
This is an action on the case -brought by the plaintiff against the Maine Central Railroad Co. to recover damages for
The plaintiff, however, contends, admitting all these things to be true, that the strict rule of law which prevails in this class of cases will hold the defendant responsible. It is claimed, under the plaintiffs declaration, that it is not necessary for her to show privity of contract or negligence, and due care is no defense; that scienter need not be alleged, and if alleged, need not be proved; negligence need not be alleged, and if alleged, need not be proved; that the defendant from the nature of its. business and calling was bound to know; that it impliedly represented and guaranteed that the food was wholesome and fit for consumption, and, if it was not, and the party eating it was injured, it was liable. In other words, the plaintiffs contention is that the defendant in this class of cases is an insurer of the quality of the food product which it serves. We are unable to believe that this is a sound rule, when confined to the sale or use of canned goods.
It has been the boast of the common law that it was able to adjust itself to the inevitable vicissitudes and changes that occur in the development of industrial life, business methods, social progress and scientific invention. Within the last century has appeared from time ito time the discovery of devices that have revolutionized the methods and accomplishments of human effort. The subjugation of steam and control of electricity, and the consequent inventions for their practical use, have become instrumental in introducing an epoch in the history of science. Industrial, commercial and financial projects have also assumed new forms and employed new methods. Yet, to the adjustment of all 'the new and varied relations arising from the adoption, application and use of these new agencies and new methods, the principles of the common law have adapted themselves so aptly as to render almost imperceptible the radical transitions that have taken place.
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 they offered to the public, were, accordingly charged with knowledge of their imperfections. Winslow v. Lombard, 18 Pick., 57; Bishop v Webber, 139 Mass 411. But upon the state of facts in the case at bar, a situation arises that cannot, in the practical conduct of the canning business, fall within these rules. No knowledge of the original or present contents of a perfect appearing can is possible, in the practical use of canned products. They cannot be chemically or bacteriologically 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 canned goods, that will more nearly harmonize with what is rational and just.
The statement of facts before us shows that the asparagus served to the plaintiff was of a very high brand, sold by a most reliable firm, guaranteed under the pure food law, and without fault or blemish discoverable to the eye, to the smell or taste. It was apparently a perfect can of what it purported to contain. The plaintiff, in February, must have known it was a canned product when she
But in this same case the rule which we invoke seems to be sustained by analogy of reasoning, and the distinction made between a sale of provisions, which are open to inspection, and a sale of food products, which are packed under inspection, and calculated to be offered in the markets for sale in the inspected packages. On page 62 it is said: “In a case of provisions, it will readily be presumed that the vendor intended to represent them as sound and wholesome, because the very offer of articles of food for sale implies this, and it may readily be presumed that a common vendor of articles of food, from the nature of his calling, knows whether they are unwholesome and unsound or not. From the fact of their being bad, therefore, a false and fraudulent representation may readily be presumed. But these reasons do not apply to the case of provisions, packed, inspected, and prepared for exportation in large quantities as merchandise. The vendee does not rely upon the supposed skill or actual knowledge of the vendor, but both rely upon the skill and responsibility of the inspector, as verified by the brand, for all qualities which the brand indicates; and for damage which may happen afterwards, and against which, therefore, the brand offers no security, the vendee must secure himself by the terms of the contract; and unless he does so or unless he is deceived by a false representation of the present and actual condition of the commodity, on which he would have a remedy of a different character, he must be supposed to have been content to take the risk on himself.”
Whatever may be the rules of law, and they are not uniform, pertaining to the liability of caterers, victualers, hotel-keepers or retailers of provisions, with respect to- the warranties implied from the transaction of their various kinds of business, there can be little doubt that, in the class of cases now under consideration, the rule laid down by 'Chief Justice Shaw with respect to packed and branded products is the prevailing and correct one, and should apply
But in the case at bar, upon the assumption that the plaintiff was made sick by the asparagus furnished her by the defendant company, it is the opinion of the court that, in the absence of an express warranty, the defendant is not liable.
Judgment for the defendant.