164 So. 231 | Miss. | 1935
Appellee recovered judgment for damages for an illness shown to have been caused by eating cheese which contained, embedded therein, the decomposed or moulded bodies of flies. The cheese was purchased by appellee from a local merchant who had procured it from a neighboring wholesaler who had purchased it from the appellant. The case is of that class wherein the courts must exercise more than the ordinary scrutiny because of the danger of fabrication and imposition. But on the record now before us, the proof is amply made, two of the witnesses being the merchant who sold the cheese, and the merchant's wife, the cheese having been returned to the store for inspection after its deleterious condition was discovered. The case comes well within such as Pillars v. R.J. Reynolds Tobacco Co.,
Appellant has defended chiefly upon the fact that it did not manufacture the cheese here involved and cites Kroger Grocery Co. v. Lewelling,
There is thus presented an apt case for the application of the rule succinctly stated in American Law Institute, Restatement, Torts, section 400, as follows: "One who puts out as his own a chattel manufactured by another is subject to the same liability as though he were its manufacturer." A case directly in point is Burkhardt v. Armour Co.,
The amount of the judgment is moderate, and it must be affirmed.
Affirmed. *258