136 Ark. 456 | Ark. | 1918
(after stating the facts). 1. The complaint in substance alleged that the appellant was a 'merchant dealing m Hour and other provisions; that he sold to the husband of appellee flour, which he knew at the time, or by the exercise of that degree of care which the law required of him should have known, contained arsenic, a poisonous substance; that by reason of .such wrongful act on the part of the appellant, the appellee was poisoned and suffered great physical and mental pain resulting in her damage. The complaint was not skilfully drawn, yet, when taken as a whole, it stated facts .sufficient to constitute a cause of action against appellant for the negligent salé of flour containing poison, which resulted in injury to the appellee. Where .a complaint alleges facts, which, if proved, would show that the acts complained of were negligent or wrongful, it is unnecessary for the pleader to so designate them.
Alleging that a dealer sold flour which he knew at the time, or should have known, contained arsenic, which sale resulted in the poisoning of another, is the statement of a fact and not merely a legal conclusion. In Fordyce v. Nix, 58 Ark. 136, we said: “Under the reformed procedure courts regard the substance rather than the form. * * '* ‘ The character of the action must be determined by the nature of the grievance rather than the form of the declaration.’ ” See also Crowder v. Fordyce Lumber Co., 93 Ark. 393, 394; C. J., vol. 1, p. 1018. The complaint tendered an issue which, being denied by the answer, made the issue complete and called for the proof. The court did not err in overruling the demurrer, and the motion to make more specific.
2. Under the instructions of the court, the only issue presented to the jury was whether or not the appellant was guilty of negligence in selling flour that contained arsenic. While the manner of presenting this issue under instructions in the form of interrogatories was peculiar and unusual, yet, after carefully considering these instructions, we conclude they correctly state the law and contained no reversible error. The interrogatories were clear and concise, and the jury could not have been misled into giving an erroneous answer, or one that they did not intend.
The duty which a retail seller of food for immediate consumption owes to his customers is .succinctly and correctly stated in Ruling Case Law, as follows: “Persons who engage in the business of furnishing food for consumption by man are bound to exercise care and prudence respecting the fitness of the article furnished, and they may be held liable in damages if, by reason of any negligence on their part, corrupt or unwholesome provisions are sold and persons are made ill thereby.” 11 R. C. L. 1118, and cases cited in note. Actionable negligence in such cases is the failure to exercise such care as a man of ordinary prudence would exercise under the same circumstances to prevent injury and damage to his customers by the sale of articles which he knows are bought by them for immediate use as food. Pollock, Torts (8 ed.), 28; 1 Thompson on Negligence, § 23.
Where the cause of action is predicated not upon implied warranty but upon the negligent sale by a retail dealer of unwholesome food products for immediate eonsumption, liability for the damages resultant from the sale of such food products is not confined alone to the immediate purchaser thereof. The liability extends to any persons who might reasonably be expected to suffer injury therefrom. The liability in such cases does- not grow out of contract, and is not based upon implied warranty, but upon negligence, that is, a failure to exercise ordinary care to prevent injury to those who the seller of the unwholesome article of food might reasonably anticipate would be injured. Ezra Craft v. Parker Webb & Co., 96 Mich. 245, 21 L. R. A. 139. See also Colyar v. Little Rock Bottling Works, 114 Ark. 140, 146. Instructions Nos. 8 and 9 given by the court correctly declared the law in conformity with the rules above announced.
3. Appellant contends that the evidence on the issue of negligence is not sufficient to sustain the verdict. The testimony bearing on this issue is set forth in the statement, and it could serve no useful purpose to discuss it in detail. There was decided conflict in the evidence, but it can not be said that the testimony of the witnesses on behalf of the appellee tending to show negligence on the part of the appellant was contrary to the physical facts. The jury were warranted in finding from this testimony that the appellant caused “ rough-on-rats ’ ’ containing .arsenic in such proportions as to constitute a deadly poison, to be placed around and in such close proximity to the flour bin that such poison was carried by mice or rats to the flour in the bin,- that such flour was sold to appellee’s husband, which sale caused the injury of which she complained.
The undisputed evidence shows that the appellee was injured by arsenical poison. There was testimony tending to prove that flour, taken from the same sack out of which the flour was used for making the biscuits of which appellee ate, contained arsenic in deadly quantities; that a sample of the flour remaining on the bread board after appellee had mixed the dough for the biscuits also contained arsenic. Under the testimony adduced it was an issue for the jury to determine whether this poison was communicated to the flour through the negligence of the appellant in directing the rat poison to be placed in proximity to the flour bin, as shown by the testimony of the witnesses on behalf of the appellee. Without pursuing the matter further, it suffices to say that the issue was for the jury, and there was evidence of a substantial character to sustain the verdict.
4. Appellant duly objected and excepted to the ruling of the trial court in permitting appellee to propound to one Doctor Willis a certain hypothetical question, and in permitting witness to answer same. The question embraced all the undisputed facts essential to the issue as to whether the injuries of which appellee complained were produced by arsenical poison. The specific objection, pointed out by learned counsel for appellant in their brief is, that there was no testimony tending to prove that appellee prior to the date of her injury was a healthy person. Appellee was asked, “What was the condition of your health prior to the time, or before the time you got poisoned?” Her answer was, “My health was always good. I could do most anything in the way of work.” Her answers further show that she did both farm and house work.
The hypothetical question was well within the rule announced in Taylor v. McClintock, 87 Ark. 243, 294; Ford v. Ford, 100 Ark. 518, 524; Williams v. Fulkes, 103 Ark. 196; Newport Mfg. Co. v. Alton, 130 Ark. 542. The record presents no reversible errors and the judgment is, therefore, affirmed.