Goodwin v. Misticos , 207 Miss. 361 ( 1949 )

Someone has said that if several men on the same job agree all the time, all but one of them are useless. In this we may find some consolation in those instances when the members of this court are not unanimous in their decisions. In this case I am impelled to register my dissent to the conclusions reached in the controlling opinion.

Much is said regarding the pyramiding of inferences and it is sought to show that the plaintiff's case here depends upon a chain of inferences, and does not find support by proof in the record. It is stated that the plaintiff should have offered evidence to prove those things that could have been proved by direct and demonstrative proof, and the opinion then proceeds to say that whether Mr. Goodwin ate or drank anything between the time he left the Belmont Cafe and the time when he was visited by Dr. Copeland was a fact capable of direct and demonstrative proof, and the opinion infers that no proof was offered on this point. On page 40 of the record, Mrs. Goodwin testified that neither she nor her husband ate anything after they left the restaurant. On pages 42-43 she testified, "Mr. Goodwin never had a drop of water or anything in his mouth after we left the Belmont Cafe until he became violently ill." She testified that they both became ill within an hour and a half or two hours after leaving the cafe. I am unable to comprehend how there could be any more positive and direct proof of a proposition than is here shown. Mrs. Goodwin's testimony is not disputed and stands absolutely uncontradicted in the record.

It is next stated in the controlling opinion that the fact whether the matter vomited up by Mr. Goodwin contained corned beef that was infected by poisonous bacteria was also one capable of direct and demonstrative proof by a chemical analysis. It would seem that the court is holding that no proof short of a chemical analysis will suffice. In this case every symptom of ptomaine poisoning was proved without contradiction; the physican saw the patient, observed his symptoms, diagnosed his case as ptomaine poisoning, and testified positively that this was the cause of his death. So far as I can find there is no reported case on food poisoning which holds that a chemical analysis of the food is necessary. On the contrary, in the case of Bark v. Dixson, 115 Minn. 172, 131 N.W. 1078, 1079, Ann. Cas. 1912d 775, which was a suit for damages as a result of food poisoning, the court said: "It is stated by defendants, and correctly, we think, that it was necessary for plaintiff to prove by a fair preponderance of the evidence that the meat was tainted, and that plaintiff's illness was the result of eating it. Defendants, however, contend that there was no evidence to sustain a finding in plaintiff's favor on either of these questions. It seems to be the opinion of counsel for defendants that, because there was no chemical analysis of the meat or of the waste, there was no proper evidence of its tainted or poisonous condition. But it does not take an entomologist or bacteriologist to discover that a beefsteak is rotten and unfit for food." See also Blount v. Houston Coca Cola Bottling Co., 184 Miss. 69, 185 So. 241, hereinafter discussed. Analyzing further the position of the court on this proposition as expressed in the controlling opinion, just when should the plaintiff have made a chemical analysis of the corned beef here in question? Can it be that before eating in the restaurant she was obligated to carry along a chemist to analyze and inspect each particle of food served her? If so, then we wipe out from the law the duty of a restaurateur to exercise reasonable care in the preparation of the food for his customers. Or, was it necessary that when her husband was writhing in pain from ptomaine poisoning, and she, too, was in the same situation, she should sterilize some vessel and procure for a chemist's laboratory a specimen of the effluence vomited from his stomach or the excreta from his alimentary canal? The controlling opinion cites no case so holding, and such a rule is so shocking that I am unable to assent to it in view of the fact that every symptom of ptomaine poisoning was proved without dispute and the expert medical testimony shows conclusively that Mr. Goodwin died as a result thereof. There are many infectious diseases which can be diagnosed positively and accurately from symptoms alone without a chemical analysis or a laboratory examination. Certainly in a case of this character it is not necessary for the plaintiff in obtaining proof as the basis of her suit to invade the sanctity of the silent city of the dead and exhume the body of deceased and submit it to a post-mortem examination and produce therefrom some of the germs which the attending physician said caused his death. Such a procedure would add little, if anything, of probative value to that which has been proved in this case. The presence of ptomaine poisoning resulting in death was shown without dispute. It is not necessary to indulge any inference whatsoever that there were germs in the corned beef. Mrs. Goodwin's testimony established without dispute that the corned beef did not taste right, and her proof excluded other potential sources of infection; this was sufficient to raise not a mere possibility, but rather a strong probability that Mr. Goodwin acquired the bacteria from eating the corned beef and up to this point it is not necessary to add one inference to another in the proof of plaintiff's case. Reasonable probabilities are all that the law of negligence requires; in no negligence case has it ever been held that facts must be established by conclusive evidence.

In Great Atlantic Pacific Tea Co. v. Hughes, 131 Ohio St. 501, 3 N.E.2d 415, 416, plaintiff purchased some pork sausage from defendant. In an hour or two she cooked and ate some of it, and later in the day she became violently ill, manifesting the same symptoms as were shown in the case at bar. Plaintiff recovered a judgment which was affirmed by the Court of Appeals, and upon appeal to the Supreme Court of Ohio that court said: "The diagnosis of the attending physician was `food poisoning or food infection.' He made no bacteriological analysis or examination, either of the sausage or the stool or contents of plaintiff's stomach, but based his diagnosis and his testimony at the trial upon the symptoms observed by him and the history of the case and development of conditions related to him . . . That the sausage caused plaintiff's illness may be properly inferred from the fact which the evidence tends to show that other persons had partaken of the same food as did plaintiff, with the exception of the sausage, for the full period during which poisoning from food would develop. That the sausage caused such illness in one whom the evidence tends to show was in a natural and normal condition, with presumably natural and normal functions of the body, in the absence of evidence to the contrary, is surely some proof that the sausage was unwholesome and deleterious to health. This is not a situation where inference is based upon inference, but separate and distinct inferences drawn from facts proven or presumed to exist in the absence of adverse evidence . . . The judgment is not contrary to law and is therefore affirmed."

It is next stated in the controlling opinion that the fact as to whether the poisoning bacteria got into the corned beef through lack of care on the part of the restaurateur is also capable of direct and demonstrative proof. As an abstract proposition that position may be technically correct, but we are at once confronted with the question whether the plaintiff is required to prove negligence by direct and positive proof such as may be afforded by calling as a witness some employee from defendant's kitchen, or whether the same may be proved by circumstantial evidence or may be aided by well recognized legal presumptions. Numerous authorities are cited in the controlling opinion which involve the question of liability in damages on the part of one who prepares and serves food, but only one Mississippi case is cited on the point. These will be discussed hereinafter, but let us first view the unsettled state of the law in the various jurisdictions of this country as to what is necessary to make out a case of negligence and follow with a consideration of the Mississippi cases on the subject. There are three different views of the matter, and these are pointed out in 22 Am. Jur., Food, Sec. 115, where it is said: "Presumption or Prima-Facie Case from Proof of Illness. — Where a negligence action is brought to recover damages for injuries alleged to have resulted from the eating or drinking of unwholesome food or beverage, the burden is upon the plaintiff to establish carelessness or negligence. According to one line of authorities, mere proof of the facts of eating the food or drinking the beverage and of illness thereafter is not sufficient to make a prima-facie case against the seller or the one preparing such food or beverage and does not shift the burden on the one selling or preparing it of going forward with the evidence to establish due care. Other authorities take the view that proof of the fact of eating an unwholesome food or drinking an unwholesome beverage is per se evidence of negligence on the part of the person selling or preparing the same. Still others take the view that while proof of eating the food and of consequent illness will not, without more, establish negligence, if the plaintiff establishes the eating, the consequent illness, and the unwholesome quality of the food, a prima-facie case is made out."

The case of Johnston v. Swift Co., 186 Miss. 803,191 So. 423, 425, relied upon in the controlling opinion, is so different on the facts that it can have no earthly application here. There the sausage was prepared by the manufacturer and placed in hermetically sealed cans in a distant state long before it was consumed by Johnston; here the corned beef was prepared and served on the spot by appellees in their own place of business; there the product was such that it required constant refrigeration to prevent spoilage, and it was shown to have passed through the hands of an intermediate wholesaler with no proof as to whether it had been kept under refrigeration while in the wholesaler's possession in its warehouse or on its delivery truck while being transported on a hot August day some 75 miles away to a retail establishment; here the corned beef did not pass through any intermediate hands; there the can of sausage was opened with a can-opener and removed from the can with an ice-pick, both of which instruments were lying around the retail store and exposed to contamination, and then the links were cut into pieces with plaintiff's knife; here the food was served upon plates furnished by the defendants and transferred from plate to mouth by instruments furnished by defendants; there the sausage looked, smelled, and tasted all right; here the corned beef did not taste right; there both husband and wife ate some of the sausage with the result that thereafter the husband became sick while the wife did not; here both husband and wife ate the corned beef and both became violently ill with fatal results to the husband; there what remained of the sausage was still in the possession of the husband and wife in their store; here what remained of the corned beef was in possession of the defendants; there the plaintiff left the sausage under a store counter in the month of August for a period of ten days, without any refrigeration as required by the label on the can, and then inspected this perishable commodity for the first time and found that a portion of it contained decomposed and unwholesome animal matter. In the opinion in the Johnston case this court clearly recognized that it had previously applied the doctrine of res ipsa loquitur in cases of contaminated articles prepared for human consumption, citing two cases which will be hereinafter mentioned, but it then said, "But we are unable to apply the doctrine of res ipsa loquitur to the factsin the present case." (Italics supplied.) In my judgment the Johnston case is no authority for an exclusion of that doctrine in this case, but clearly preserves it for application in appropriate cases which might thereafter arise.

It may be well to here restate the rule, which is that proof that the thing which caused the injury to plaintiff was under the control and management of the defendant, and that the occurrence was such as in the ordinary course of things would not happen if those who had its control or management used proper care, affords sufficient evidence that the injury arose from or was caused by the defendant's want of care, makes out plaintiff's prima-facie case, and presents a question of fact for defendant to meet with an explanation. 38 Am. Jur., Negligence, Sec. 295. In this case the defendant was not called upon by the trial court to explain anything, for the court sustained a motion to exclude and peremptorily directed a verdict for defendants at the close of plaintiff's evidence. The aforementioned doctrine is applied in food cases by many courts. In 36 C.J.S., Food, § 69, it is said: "The burden of proving defendant's negligence in food cases so as to make out a prima-facie case is often held satisfied by proof of circumstances raising a presumption or inference of negligence under the doctrine of res ipsa loquitur. Where this doctrine is applied two factors are generally present: (1) The immediate cause and the circumstances of the misadventure are such as would not have happened in the ordinary course of events if the person charged had used due care; (2) The manufacturer or dispenser is in a better position to know how the food was handled, the consumer not being presumed to have such knowledge as to enable him to prove the specific acts of negligence."

Applied to the case at bar the foregoing fits like a glove. In the normal and ordinary course of events the bacteria which produce ptomaine poisoning will not find their way into food which is prepared and served to the public, and should not have been permitted to contaminate the food which was indisputably served to Mr. and Mrs. Goodwin. The defendants are in a better position to know how the food was handled, and should be called upon to explain away the plaintiff's prima-facie case; the defendants should know where they obtained the ingredients which went into this corned beef and how long and under what circumstances they had kept it; they should know who prepared it and what kind of care he used in so doing; they should know what sources of infection, if any, exist around their kitchen; these are all matters peculiarly within the knowledge of the defendants and almost exclusively within the power of defendants to elucidate with proof, yet the trial court and the controlling opinion herein hold that defendants should not have to explain anything, but that the plaintiff should have had a witness in the kitchen while this food was being handled and prepared and before she and her husband ever entered the establishment for a meal. In my opinion such a holding is supported by neither reason nor precedent.

Coming now to the decisions of this court upon the question under consideration, in Pillars v. R.J. Reynolds Tobacco Co.,117 Miss. 490, 78 So. 365, there was involved a claim for damages on account of negligence in the manufacture of chewing tobacco which contained deleterious matter resulting in ptomaine poisoning to the plaintiff. Without mentioning res ipsa loquitur this court applied the doctrine and held that proof of contamination of the tobacco was sufficient to raise a presumption of negligence and carry the case to the jury for the decision.

The Pillars case was cited with approval, and numerous authorities from other jurisdictions were also cited by this court in Blount v. Houston Coca Cola Bottling Co., 184 Miss. 69,185 So. 241, 242, which was a suit for damages on account of negligence in the manufacture of a bottle of Coca Cola containing a deleterious substance. In that case the bottle was sent for analysis to the State Chemist and his report was offered in evidence without producing him as a witness; the report was excluded on the ground that it was unsworn hearsay evidence, and this court held that such action was proper, but without any chemical analysis it was held: "It is true that the plaintiff, suing alone in tort, was required to prove negligence; but this does not mean that a witness or witnesses must be produced to say that the Coca Cola plant was being negligently operated at the time the foreign or deleterious substance was bottled up in the drink before it was capped and sold to the retailer. It was a question for the jury as to whether negligence might reasonably be inferred from the facts disclosed. The doctrine of res ipsa loquitur applies in such a case."

The case of Coca Cola Bottling Works, Inc., of Columbus v. Petty, 190 Miss. 631, 200 So. 128, 130, decided after Johnston v. Swift Co., supra, involved a claim for damages because of negligence in permitting animal matter to get into a bottle of Coca Cola during the course of its manufacture, and this court said: "If this animal matter was in this bottle, the jury, under the maxim res ipsa loquitur, were warranted in believing that it got into the bottle through the negligence of the appellant's employees. The court therefore committed no error in refusing appellant's request for a directed verdict." Notwithstanding the fact that this court has applied the rule of res ipsa loquitur in at least three similar cases, and has held that in such cases a peremptory instruction is not proper but that the matter should be left to a jury for decision, it is now held in the case at bar that a peremptory instruction was proper even without requiring the defendants to offer one word of proof. Such a holding, in my opinion, does not square with the previous decisions of this court. There is not one thing in the Johnston case to justify the assertion that the doctrine of res ipsa loquitur does not apply to germs or bacteria in food; it merely held that the doctrine had no application under the particular facts of that case as hereinabove detailed. Since this case is purely one of negligence, no reference has herein been made to those Mississippi cases based upon implied warranty.

Let us now examine the authorities from other jurisdictions cited in the controlling opinion, bearing in mind that there is a hopeless conflict in the various jurisdictions as to the applicable rules in a case of this type.

Sheffer v. Willoughby, 163 Ill. 518, 45 N.E. 253, 34 L.R.A. 464, 54 Am. St. Rep. 483, originated in 1891, long before the development of the modern decisions in cases of food poisoning. In that case, however, the plaintiff and her friend were made sick from eating oyster stew in defendant's restaurant during a noon hour when between 800 and 900 other people ate of the same stew without ill effects. Illinois does not recognize the application of the doctrine of res ipsa loquitur in food cases, while Mississippi does recognize it, and the Illinois court held that the plaintiff had the burden of proving negligence and had failed in her proof. The case is clearly distinguishable from the present case.

Crocker v. Baltimore Dairy Lunch Company, 214 Mass. 177,100 N.E. 1078, Ann. Cas. 1914B, 884, comes also from a state where res ipsa loquitur has no application in food poisoning cases, but in that case the court did not exclude plaintiff's evidence showing illness resulting from food eaten in defendant's restaurant. Instead, it required the defendant to offer its proof as to the sources of its supply, how its food was handled, etc., which was not done in the case at bar. After a verdict for plaintiff the defendant appealed and the Supreme Judicial Court of Massachusetts, while reversing and remanding the case for a new trial, declined to enter judgment for defendant upon the record thus presented. It is at least authority for the position that the case here should have been submitted to the jury, and that the trial court erred in declining so to do.

Lamb v. Boyles, 192 N.C. 542, 135 S.E. 464, 465, 49 A.L.R. 589, cited in the controlling opinion, is a case in which the plaintiff merely proved that he drank a bottle of strawberry ale prepared by the defendant and became sick; the court pointed out that "There was no analysis of the ale, no direct evidence of any foreign matter, no specific indication of any poison." The plaintiff apparently did not offer any physician to show that his trouble was caused from ptomaine poisoning, nor any evidence to exclude other sources of infection, as was done in the case at bar. The plaintiff there simply failed to show enough facts to raise a prima facie presumption. Furthermore, the North Carolina court declined to apply the doctrine of res ipsa loquitur while recognizing that it has been applied by many courts.

The last three cases mentioned herein are the only ones from other jurisdictions which are cited in the controlling opinion except those cited in these three cases. As heretofore suggested, since Mississippi has committed itself to the rule herein urged, authorities from other states are of no value in deciding the question now before us except, perhaps, to show that this state is not a lone wolf on the subject and is supported by respectable authorities elsewhere. It would extend this opinion to undue lengths to discuss all the authorities, but some of them are: Greenwood Cafe v. Lovinggood, 197 Ala. 34, 72 So. 354; Doyle v. Fuerst Kraemer, Ltd., 129 La. 838, 56 So. 906, 40 L.R.A., N.S., 480, Ann. Cas. 1913B, 1110; McPherson v. Capuano Co.,31 Ga. App. 82, 121 S.E. 580; Copeland v. Curtis, 36 Ga. App. 255, 136 S.E. 324; Steele-Smith Dry Goods Co. v. Blythe, 208 Ala. 288, 94 So. 281; Davis v. Van Camp Packing Co., 189 Iowa 775, 176 N.W. 382, 17 A.L.R. 649; Minutilla v. Providence Ice Cream Co., 50 R.I. 43, 144 A. 884, 63 A.L.R. 334; Armour Co. v. Miller, 39 Ga. App. 228, 147 S.E. 184; Doyle v. Continental Baking Co., 262 Mass. 516, 160 N.E. 325; Nelson v. West Coast Dairy Co., 5 Wn.2d 284, 105 P.2d 76, 130 A.L.R. 606; Armour Co. v. Leasure, 177 Md. 393, 9 A.2d 572, a corned beef case; Schuler v. Union News Co., 295 Mass. 350,4 N.E.2d 465; Campbell v. G.C. Murphy Co., 122 Pa. Super. 342,186 A. 269; Picard v. Smith, 59 App. D.C. 291, 40 F.2d 803; Barringer v. Ocean S.S. Co., 240 Mass. 405, 134 N.E. 265; Southern Grocery Stores v. Donehoo, 59 Ga. App. 212, 200 S.E. 335; Amabile v. Kramps, 121 N.J.L. 219, 2 A.2d 178; Flessher v. Carstens Packing Co., 93 Wn. 48, 160 P. 14, 13 N.C.C.A. 173; Bark v. Dixson, 115 Minn. 172, 131 N.W. 1078, Ann. Cas. 1912d 775; Catani v. Swift Co., 251 Pa. 52, 95 A. 931, L.R.A. 1917B, 1272.

A great many of the foregoing authorities are cases of food poisoning, usually ptomaine poisoning, from unwholesome food which contained no foreign object except the bacteria, and are directly contrary to the holding in the controlling opinion herein that the doctrine of res ipsa loquitur does not apply to germs or bacteria in food. Regardless of the application of that doctrine it was held repeatedly in many of the above cases that negligence may be presumed from evidence that a party was rendered ill from eating food, where other sources of infection are excluded, or where other parties were made ill at the same time from eating the same food. We do not quote from those cases, for this is unnecessary since we already have ample precedent from the decisions of our own court heretofore mentioned.

In the controlling opinion it is admitted, as it must be, that in determining the right of a defendant to a peremptory instruction, the court must assume as true everything which the evidence establishes either directly or which the jury might reasonably draw from such evidence. But it is the further rule that every case should be submitted to a jury for their determination if reasonable men might draw different conclusions from the state of facts presented. Fraternal Aid Union v. Whitehead, 125 Miss. 153, 87 So. 453; Jefferson Standard Life Insurance Company v. Jefcoats, 164 Miss. 659, 143 So. 842. Upon the facts here presented the members of this court, presumably reasonable men, have drawn different conclusions, which, in itself, is authority for the position that this case should have been submitted to a jury for decision. Our statute specifically provides that all questions of negligence shall be for the jury to determine. Section 1455, Mississippi Code of 1942. Consequently I am of the opinion that the trial court erred in taking the case from the jury and that the judgment should be reversed and the cause remanded for a trial on the merits.

McGehee, C.J., and Roberds, J., join in this dissent.