Pine Grove Poultry Farm v. Newtown B.-P. Mfg. Co. , 248 N.Y. 293 ( 1928 )

Plaintiff operates an extensive duck farm on the south shore of Long Island. Defendant manufactures a brand of poultry feed known as meat scrap. It consists of scraps of meat procured from butcher shops, seasoned and ground and sifted through a screen, then packed in bags and sold to retail dealers. From such a dealer plaintiff purchased large quantities and upon it fed its ducks. Several thousand died. This high mortality was traced to the presence in the feed of fine particles of steel wire which had been fastened by butchers to the meat and, still attached to the scraps, was ground with them. The question is presented whether in the absence of privity between the manufacturer and the ultimate purchaser, plaintiff can recover.

Theories based upon common-law rules of negligence need not now be considered. An answer to the question whether the doctrine of common-law negligence founded upon the principles applied in such decisions as Thomas v. Winchester (6 N.Y. 397) andMacPherson v. Buick Motor Company (217 N.Y. 382) shall be further extended to include damage to property rights as distinguished from personal injuries, may prudently be reserved for the future. Before us now is a set of facts which requires disposition according to statutory enactment. The action is based upon negligence. The complaint alleges it. The jury found it. The verdict rests upon evidence, so clear that its truth cannot be and is not assailed, proving that the feed contained ground wire and that the loss of the poultry resulted from that cause. The court, adopting the theory of negligence pleaded by plaintiff, charged the rule relating to reasonable care. In view of the statute he might have correctly charged negligence as matter of law.

The Farms and Markets Law (Cons. Laws, ch. 69) controls this case. Section 130 prohibits the sale of any concentrated commercial feeding stuffs containing any substances injurious to the health of animals, and section 128 defines "concentrated commercial feeding stuffs" as including ground "beef" or fish scraps and "all other materials of a similar nature." The meat scraps sold by defendant and fed to plaintiff's poultry are alleged in the complaint to be "Red X Brand Meat Scraps." Throughout the trial reference was usually made to them as such, yet on several occasions, without objection by defendant, they were described as "beef" scraps. The scraps of meat of which the feed was composed were gathered indiscriminately from a thousand shops. A proportion of this meat must have been beef. Even if the proportion of beef to the other meats were low, the material in the finished product, being meat, was of a similar nature to ground beef scrap. The feed falls within the type of food defined by sections 128 and 130. It was proved to be injurious to the health of animals and, therefore, its sale was prohibited. Violation of the duty to refrain from the sale of this feed as imposed by section 130 constitutes negligence as matter of law and any one having a special interest in the performance of that duty may sue for a breach. (Willy v. Mulledy, 78 N.Y. 310; Marino v.Lehmaier, 173 N.Y. 530, 535; Amberg v. Kinley, 214 N.Y. 531. ) The right to maintain an action for the breach of a statutory duty is not restricted to one suffering an injury to the person. Property rights also come within the protection of a statute imposing a duty for the benefit of the general public. Such a rule has been applied by us to a violation of the Farms and Markets Law in a case where no privity of contract existed between the party guilty of the violation and the one incurring the damage. No element of ordinary negligence is essential. Violation of the statute becomes actionable default. (Abounader v. Strohmeyer Arpe Co., 243 N.Y. 458.) A public statute, such as the Farms and Markets Law, need not be pleaded. Neither is there any requirement that during the trial it shall be brought to the attention of the court or opposing counsel. The facts found by the jury upon abundant evidence constitute as matter of law a violation of the statute. The court may have charged more favorably to defendant than the statute contemplates. Defendant cannot complain.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.

CARDOZO, Ch. J., CRANE, ANDREWS, LEHMAN and KELLOGG, JJ., concur; POUND, J., not sitting.

Judgment accordingly.