*1 84 him, legislation

tainly out to albeit goes not do so do unfortunately

and authorities

here.

CROCKETT, WADE and J., and C.

McDonough, jj., concur.

WORTHEN, J., argument but heard the opinion was filed.

died before

337 P.2d 967 Naujoks, Gertraude O. NAUJOKS

Arthur wife, Respondents, Plaintiffs and SUHRMANN, Suhrmann’s South

Emil d/b/a Defendant, Temple Company, Meat Guss, Jor Noorda and Sam L.

Albert d/b/a Company Valley Livestock dan Meat & Sausage Company, corp., Utah Defend Appellants. ants and

No. 8775.

Supreme Court of Utah.

April 15, 1959.

fendants.1 judgment Plaintiffs obtained a against Suhrmann, retailer, against Guss, operate Noorda and who Jordan Valley Meat Company, and Livestock *2 Sausage Company, suppliers of product. only appealed. The latter have Their basic contention is that is in- there support sufficient evidence to certain of the jury’s findings.

The background present in facts case are generally similar to those in Schneider Suhrmann,2 v. which we refer reader and only add such additional separate matters as are essential to the treatment of this case.

In the just Schneider case referred to plaintiff attempt failed in his to im- pose liability upon supplier; the defendant plaintiffs whereas in this case the significant successful. The difference is by in facts as the jury. found In the prior Hoffman, case it found that Albert Hurd, Hurd, Bayle R. Lauch- & Wallace employee supplier, an of the was not its nor, Gordon, City, Lake for Robert Salt agent dealings Suhrmann, in its with Emil appellants. In retailer. this case the found Duffin, Wallace, Rawlings, & Cannon that he was Black, City, for re- Lake Roberts & Salt pointed As out in other case referred spondents. to, we are not with concerned inter- CROCKETT, Chief Justice. relationship of op- Noorda in Guss erating companies, series regard This is another of a of cases aris- their them suppliers ing simply from of contracting eating trichinosis as the mettwurst. sausage mettwurst furnished the de- Albert Hoffman was a maker for Suhrmann, Market, Ine., 1. See Schneider 8 Utah 2d v. Grand Central 9 Utah 35, 822; —, 327 P.2d Bodon v. P.2d 424. 2d 337 42, 826; 35, 8 Utah 2d P.2d 327 Niemann 8 327 P.2d 2. Utah 2d 86 cannot be held Up

them. of 1955 he liable the consumer until the summer mettwurst, a preparing assisted in cooked implied war- negligence either on a or pork sausage, then sold form of which was theory showed ranty unless it retailed at his Emil Suhrmann who they, per- through Noorda or Guss By City. Lake delicatessen in Salt sonally, their agent acting or within “cooked” is meant the mettwurst it scope authority, knew or should degrees 137 has heated to least been at mett- selling known that Suhrmann was fahrenheit, temperature nec- the minimum public processing it to> wurst to the trichinae, tiny essary organism kill kill trichina. pork, sometimes and which causes found n It suppliers is conceded that knew disease, appears It trichinosis.3 dangers trichina in uncooked cooking spoils flavor desired excessive pork of which mettwurst In this made. mettwurst special case interroga- answered too much. anxious that it not heated they knew, tories or reason- May informed ably known, should have that Suhrmann impractical them to him that for pro- the mettwurst without intended sell product that one cool down their ovens for *3 question cessing it to kill trichina. The the they longer supply the and that could no importance of posed defendant’s Thereupon processed him. mettwurst to sup- challenge that not the evidence will process or Suhrmann offered to “smoke” port finding. such a his es- mettwurst at own the unfinished offer accordance with this we In As to Noorda themselves tablishment. and Guss suppliers processed agree as virtually the mettwurst that record is devoid the the finding the completely they as could use of justify evidence which would a it to Suhrmann. they then delivered that knew above of and the critical fact ovens of Suhrmann, receiving imposed col- liability some If Thereafter mentioned. is to be Hoffman, upon fur- upon and advice from it of laboration them must be basis the mettwurst but failed to the processed knowledge the sau- ther and activities their of necessary sage maker, Hoffman, kill it the extent to cook to Albert the evidence meat was to concerning infested sold which trichina. Some we refer below. others, who plaintiffs herein and there- the appreciated It is that that the fact trichinosis. by contracted may agent one an purpose be for one does previous agent and in the case not make him purpose, Both in this for every they agency contended that but the is limited to the acts within cycle nosis, causes, a discussion of the life it For brief which see Schneider v. disease, trichina, 1, supra. and of the trichi- of the footnote . n scope mettwurst; of authorized duties. Consistent that when some of proper therewith the mettwurst processing, court forth shrank in Suhr- set that, mann instructing jury limitations contacted Hoffman the latter and gave before it be him suppliers; could find Hoffman to a credit with the .agent that appeared of believe suppliers, it must Hoffman’s a salesman name as on suppliers’ under processing goods the mettwurst invoices of to Suhr- he mann; express- they their either control and that Hoffman delivered some ly delicatessen; by conduct that he was mettwurst that or indicated to Suhrmann’s testing he aided product advise and assist Suhrmann. smoking Suhrmann in and, Hoffman validity finally, finding repeatedly of the that Hoffman supplier’s at the agent, look warned get we his wife not to every temperature evidence and inference reasonable in the de- oven over 80 gress light therefrom in the most favorable fahrenheit or it would ruin the flavor quality it.4 Upon the mettwurst. basis of the above evidence the could agen As the issue of Hoffman’s reasonably that the took defendants believe cy: em the defendants claim that he was advantage language affinity of the between ployed only had maker and the two to let Hoffman handle the Suhr- beyond in their authority to act no mann generally. account The behalf; dealings with Suhrmann agency meets the traditional rule which German, they spoke both were because requires only that there be some substan- spoke English, almost no and Suhrmann tial to sustain evidence it. permitting him to act as inter preter way enlarged their behalf in no on The having defendants selected scope authority. may employee of his This their agent, chargeable to be a reasonable view responsibility of the with conceded for his activities and evidence, obliged scope was not knowledge within assigned du aspects other accept it view of of the ties reasonably necessarily and those in reasonably from which could cident thereto. Inasmuch as Hoffman’s knowledge authority that Hoffman’s have found mettwurst went was not *4 being processed claimed beyond that to kill defendant: 'that trichinae before dealing being public commenced to imputable Suhrmann with sold the when Hoffman; suppliers, coupled contacted suppliers he that this Hoff the with their ad knowledge most of man took the orders from Suhr mitted of trichina in uncooked suppliers’ products, provide including pork dangers, mann the and its for a substantial Co., 37, 4. Toomer’s Estate Union Pacific R. 121 Utah 239 P.2d 163. negligent prudent person (the them a finding- basis in for reasonable in their evidence position imposing liability upon suppliers) them. that have known Suhr- pro- mann would the sell plaintiffs Judgment affirmed. Costs to it?” cessing (respondents). jury In the Schneider the answered case McDONOUGH, JJ., con- WADE and trial “Yes.” Nonetheless court refused the cur. judgment against suppliers the on to enter WORTHEN, J., argument heard but ground not evidence would opinion died before filed. justify the verdict. We affirmed the trial ground. court on HENRIOD, (dissenting). Justice practically identical we now On I think this case is no Because different affirm, reject, instead the same answer factually tiran Schneider v. re- interrogatory. to the same us,1 I main cently The decided dissent.

opinion background facts that the concedes opinion my question agency, in The substantially “only same, says are difference, be con- if are to makes no we matters such additional as essential sistent, in facts since we said the will separate this case” treatment of liability on imposed no Schneider case considered, “significant difference” wrong suppliers jury was none being finding agency where here have known in saying should in the former. found meat, adulterated Suhrmann would sell say we liable. Now therefore were plaintiff’s in the Examination of briefs sup- wrong saying in is not appear that all former case makes thing. pliers the same have known should opinion ad- in were facts recited the main finding say wrong If we case, except, per- the Schneider duced in there, say right as it is agency how can we gave some haps, Hoffman Suhrmann agency case on same in this appeared meat returned for credit material facts? invoices, suppliers’ both on a salesman imma- seem most which circumstances relating facts submitting that inconsequential. terial dealings with in the Hoffman’s cases, except materially distinguished for one case cannot be minor differ- In both case, paraphrasing interroga- refer identical from those in other I ences respective given jury. parties The the briefs of the and the were one ma- tories “5(b). is as follows: Would records in two cases. terial 8 Utah 1938, 35, 2d 327 P.2d 822. *5 in our former quite a do made We when Suhrmann the fact that

opinion of himself, tes- he process meat

started to as follows:

tified far it, prepare it as

“Let have me deliver you are able and then I me, it. will and I finish it, care I will take

oven to smoke you don’t —what rest. What my I

you complete will cannot do added.) (Emphasis business.”

own relieve would seem to admission

Such liability seem suppliers from and would quite out of make our decision previous

harmony with our decision.

338 P.2d 118 GREENWELL,

Edmund E. Plaintiff Respondent, Appellant. DUVALL,

R. C. Defendant

No. 8961.

Supreme Court of Utah.

April 23, 1959.