Appeal from the Circuit Court of Montgomery county; the Hon.
F.R. DOVE, Judge, presiding. Reversed.
JUDGE CARROLL DELIVERED THE OPINION OF THE COURT.
In this action plaintiff, Clara T. Tiffin, as Administrator of the estate of Gail Tiffin, deceased, claims damages for the death of her intestate alleged to have been caused by eating ham purchased from the defendant, The Great Atlantic and Pacific Tea Company and which had been sold to the latter by the defendant, Armour and Company. The other plaintiffs seek damages for illness allegedly resulting from the same cause. For convenience, the defendants will be referred to as A. & P. and Armour.
The case was tried by a jury and resulted in verdicts for plaintiffs against the defendants jointly in the following amounts: Clara T. Tiffin, as Administrator of the estate of Gail Tiffin, deceased, $10,000; Clara T. Tiffin, individually, $1,000; Thomas O. Tiffin, $250; Viva Tiffin, $250. Thereafter post-trial motions were denied and joint judgments entered on the verdicts from which defendants appeal.
The pertinent allegations of the complaint are in substance that the defendant, A. & P. on June 11, 1953 was engaged in the business of selling foods and meats at retail in Litchfield, Illinois, and in the prosecution of said business, operated a store to which it invited the public as patrons; that said defendant then and there warranted to its patrons that all meats and foods sold to its patrons were good, sound, healthful, wholesome food and fit for human consumption; that on the aforesaid date, plaintiff, Clara T. Tiffin, relying upon the warranty of defendant, purchased and received from defendant an "Armour's Star Tenderized Ham" for consumption by herself, her family and relatives; that defendant warranted said ham to be good, sound and wholesome food and fit for human consumption; that said ham was not as warranted but was infected with disease, contained spoiled portions of meat and was wholly unfit for human consumption; that on June 12, 1953 plaintiff cooked said ham; that on June 13, 1953 some of said ham was eaten by plaintiff, her family and relatives; that as the result of eating said ham, Gail Tiffin became sick and died on June 17, 1953; that on June 13, 1953 plaintiffs, Clara T. Tiffin, Thomas O. Tiffin and Viva Tiffin also ate some of said ham and as the result thereof each of them became ill; that defendant Armour on June 11, 1953 and for several years prior thereto was engaged in the business of slaughtering hogs, curing hams and selling same to retail dealers for resale to the public for human consumption; that on said date or within 30 days prior thereto, a quantity of ham was sold and delivered to A. & P. for resale; that Armour impliedly warranted to the ultimate consumer that said ham was wholesome food and fit for human consumption and that Clara T. Tiffin relying upon the warranty of Armour, purchased an "Armour's Star Tenderized Ham" for consumption by herself and her family. There are further allegations as to the consumption of the ham and results ensuing which are the same as those made against A. & P.
Originally the complaint included counts based upon negligence of both defendants but these were dismissed by plaintiffs at the time of trial.
The answer of A. & P. denied violation of the implied warranty and alleged that the ham was reasonably safe for human consumption as food; that it was not spoiled at the time of sale. The answer of Armour likewise denied any breach of the implied warranty.
The evidence shows that on June 11, 1953, Clara T. Tiffin purchased the alleged poisonous ham from the A. & P. store in Litchfield; that when purchased the ham was in an open refrigerator and was wrapped in paper; that the clerk took the ham to the back of the store to trim it for her and when it was returned, it was wrapped in paper; that she placed the ham in her automobile; that after stopping at her home in Walshville, she took the ham to the home of Mrs. C.L. Osborn, who lived seven miles from the Tiffin home; that at about 1:00 o'clock P.M. on June 11, 1953, Mrs. Osborn unwrapped the ham and put it in her refrigerator where it remained until 5:00 o'clock the next morning when she placed it in a gas oven to cook; that the ham cooked for 5 hours at a temperature of 325 to 350 degrees Fahrenheit; that at 11:30 A.M. the witness took the ham from the oven and set it on the stove; that the ham appeared to her to be "perfectly done" and was pulling from the bone; that at about 12:30 P.M. on that day the ham was taken in the oven roaster to the Albert Tiffin home in Walshville where it was permitted to cool at room temperature until 5:00 P.M.; that the average air temperature that day was 79 to 96 degrees; that at 5:00 P.M. Thomas O. Tiffin sliced some of the ham for an evening meal; that these slices were taken from the butt end of the ham but the cutting extended to the bone; that at this evening meal, 7 persons including the deceased and Clara T. Tiffin partook of the ham; that none of these persons suffered any ill effects therefrom; that following this meal, the ham which was in the roaster was covered and placed in an electric refrigerator; that at about 8:00 o'clock the next morning it was taken from the refrigerator and Thomas O. Tiffin sliced a portion of it for the noonday meal; that these slices were placed on two clean platters, covered with wax paper and put in the refrigerator before 9:00 o'clock A.M.; that at about 11:30 A.M. on that day the slices of ham were served buffet style with other foods, including chicken, cottage cheese, fruit jello salad, green beans, potato salad, tossed salad, cake, coffee and ice tea; that Gail Tiffin, deceased, and plaintiffs partook of this meal and each ate some of the ham; that in addition to the ham, Gail Tiffin ate potato salad, fruit salad, cake, ice tea and cottage cheese; Thomas O. Tiffin ate green beans, tossed salad, jello salad and ice tea; Viva Tiffin ate green beans, tossed salad and coffee; Clara T. Tiffin ate tossed salad, fruit salad and coffee; that all persons who handled the food served said their hands were clean, none were ill or had colds or cuts on their hands; that the home where the meal was served was clean; that no flies came in contact with the food; that the Albert Tiffin house was located on a 278 acre farm; that the barn was located 300 feet from the house and used for cattle, hogs and milk cows; that the milk and cream used in the Tiffin house was from these cows and was not pasteurized; that the house had toilet facilities with sewage going into a septic tank 15 or 20 feet from the house; that within 2 or 3 hours after the noon meal, Thomas O. Tiffin, Gail Tiffin and Viva Tiffin became ill and at about 1:00 A.M. on June 14, Clara T. Tiffin also became ill; that the symptoms of each case were nausea, diarrhea and vomiting; that Doctor Frank B. Warner attended these persons and diagnosed their illness as food poisoning; that Gail Tiffin was taken to the hospital and died on June 17, 1953; that Dr. Warner performed an autopsy on the body of Gail Tiffin; that he took samples of tissue from the organs, prepared slides therefrom and sent them for diagnosis to the Decatur & Macon County Hospital; that Dr. George McClure, Pathologist for the hospital sent his written report on findings to Dr. Warner; that in his report, which was introduced in evidence, Dr. McClure stated that from his examination of the slides he found no evidence for a diagnosis of fatal gastro-enteritis; that Doctor Max Appel, a pathologist, testified that he examined the slides made at the autopsy on the body of the deceased and based upon such examination, gave an opinion that the death of Gail Tiffin was caused by an overwhelming toxemia, which he explained means a flooding of the blood stream with toxins; that toxin referred to a noxious substance of a special nature which might be found in the living organism; that the most common cause of such toxins is bacterial infections; and that bacterial infections resulting from hemolytic staphylococci fall in that category; that the slides indicated to him manifestation of toxemia in the tissues evidenced by degeneration of cell structure. The trial court refused to permit this witness to give his opinion as to the cause of such toxemia.
The evidence further shows that on June 14, 1953, Willis L. Whitlock, Sanitarian of the Montgomery County Health Department, went to the Tiffin residence and collected samples of the ham and cottage cheese which were in a refrigerator and had been left over from the preceding day's luncheon; that no showing was made as to when the left-over food, including the ham slices, were placed in the refrigerator following the luncheon on June 13, 1953; that he took two slices of the ham and some of the cottage cheese and placed the same in separate sterile bottles; that samples of the other foods served at the luncheon were not taken; that the samples of cheese and ham were taken to Hillsboro and placed in a refrigerator; that the following morning they were mailed to the State Health Department in Springfield; that on June 17, 1953, Roscoe Brooks, Bacteriologist for the State Health Department ran tests on the samples of cheese and ham; that from these tests he concluded that hemolytic staphylococcus was present on the ham but none was present on the cheese; that Brooks did not know whether the ham sample which he tested had been kept under refrigeration prior to his examination thereof; that while the sample was enroute by mail from Hillsboro to Springfield, a period of at least 24 hours, it was out of refrigeration; and that a written report of the test on the sample was submitted to the Montgomery County Health Department. This report stated that hemolytic staphylococci were present on the baked ham sample. The trial court refused to admit this report in evidence because of the remoteness of the laboratory examination.
The evidence further shows that the ham in question was processed by Armour and delivered as part of a large shipment to A. & P. on June 4, 1953. Witnesses for Armour detailed at considerable length the various steps involved in the processing of hams, including slaughtering of the live animal, cooling, cutting, smoking, refrigeration and wrapping and that these operations were made under the constant inspection of the Meat Inspection Branch of the United States Department of Agriculture. There is evidence that this shipment of hams was delivered to A. & P. in a refrigerated truck; that its employee inspected the shipment upon delivery; that his inspection consisted of spot checking the hams for internal temperature with a thermometer and also for moisture, mold and fat content, this latter operation was done by pressing the fat with the thumbs; that the hams while in A. & P.'s possession were kept under refrigeration at a temperature not exceeding 42 degrees Fahrenheit; that there was nothing unusual about the appearance and smell of the particular ham sold to Clara T. Tiffin and that A. & P. had no complaints as to the other hams received in the shipment from Armour.
The record also contains a considerable amount of expert testimony concerning the bacteria designated as staphylococcus. Testifying for plaintiffs on this subject was Doctor Appel, who is a physician specializing in pathology. Doctor Gail M. Dack, Professor of Microbiology and Director of the Food Research Institute and one of the scientists who discovered the connection between enterotoxins of certain staphylococci and food poisoning, and M.L. Laing, Chief Chemist and Bacteriologist for Armour testified for defendants. All of these witnesses seem to agree that staphylococcus is a common microscopic organism of which there are a number of types; that a limited group thereof cause food poisoning; that it is abundant in nature and is found almost everywhere, including the air and on the bodies of human beings; that the organisms themselves are non-poisonous; that as they grow and multiply in a food, they elaborate a poison which is called enterotoxin; that it is this enterotoxin which causes food poisoning; and that staphylococcus does not grow and produce toxins at a temperature below 55 degrees Fahrenheit nor at a temperature above 105 degrees Fahrenheit, but remains dormant.
The witness Laing in answer to a hypothetical question setting out all of the conditions under which the ham was processed by Armour, the manner in which it was handled by A. & P. prior to its sale, and which also cited the manner in which plaintiffs handled the ham subsequent to its purchase until eaten by the 7 persons on the evening of June 12, stated that in his opinion there was no opportunity during the period covered for staphylococci to grow and to elaborate enterotoxin. The reasons given by the witness for his opinion were that there was neither temperature nor time sufficient for production of enterotoxin and for the further reason that no ill effects resulted from the consumption of the ham on June 12, 1953.
Doctor Dack, in answer to practically the same question as propounded to Laing, stated that in his opinion there would not be multiplication and enterotoxin production in the ham while in the custody of Armour. This witness further testified that in his opinion there was no enterotoxin in the ham up to the point where it was sliced and eaten by the 7 people on June 12 for the reason that after cooking, it was essentially free from bacteria and certainly free from staphylococcus; that when handled in the kitchen there would be an opportunity for contamination but when eaten there had not been time for enterotoxin production.
Dr. Appel, in answer to a hypothetical question in which was detailed the symptoms of the illness of Gail Tiffin, the autopsy findings, the cooking and slicing of the ham, the bacteria tests made on a portion thereof and results of said tests, gave as his opinion that the death of the hypothetical person was due to an acute gastro-enteritis with a severe toxemia which is inevitably associated with it. He estimated the temperature necessary to destroy most forms of hemolytic staphylococci is 150 to 160 degrees Fahrenheit, but that to be certain that all were killed, heat from 200 to 225 degrees Fahrenheit would be required. He further stated that from examination of the slides, it was not possible to identify the toxins which actually caused the degeneration of the cell structures. The witness further stated that he regarded Dr. McClure as a competent pathologist but disagreed with the latter's opinion as to the pathology shown by the slides.
It is contended by A. & P. that as against it, plaintiffs' proof failed to establish a cause of action for food poisoning; that a causal connection between the death and illnesses complained of and the theory of food poisoning advanced by plaintiffs is not shown and that the trial court should have directed a verdict in its favor.
Plaintiffs' suit was brought on the theory of an implied warranty of wholesomeness and accordingly no question of negligence is involved. Such warranty arises not from contract between seller and purchaser but has its basis in the public policy of the State, which in the interests of safeguarding the health of its inhabitants, prohibits the sale of food products which are unfit for human consumption. The general ...