Wilson v. J. G. & B. S. Ferguson Co.

101 N.E. 381, 214 Mass. 265, 1913 Mass. LEXIS 1423

• Court: Massachusetts Supreme Judicial Court
• Decided: March 31, 1913
• Status: Published

Opinion

Braley, J.

The jury by their verdict assessing damages must have been convinced on the testimony of the plaintiff and of her medical attendant that her serious and prolonged illness arose from toxic or ptomaine poisoning caused by eating a blueberry pie made by the defendant, and purchased from a retail dealer. A further finding, that on the morning of the day of purchase the pie had been delivered to the dealer by the defendant, and immediately placed by him in a glass case furnished by it from which the plaintiff, among other customers, had been supplied, would have been warranted. It represented by advertisements, that it was engaged in making and selling pies which were not only wholesome but of excellent quality. Apart from any expectation of pecuniary gain or apprehension of loss it was bound in their preparation to take every reasonable precaution to supply an article of food which would not be deleterious to the consumer’s health. Lebourdais v. Vitrified Wheel Co. 194 Mass. 341. Gately v. Taylor, 211 Mass. 60, 64. Roberts v. Anheuser Busch Brewing Association, 211 Mass. 449. Crocker v. Baltimore Dairy Lunch Co. ante, 177. The pie under these findings having been unwholesome, and the dealer free from blame, the remaining question is, whether there was evidence from which it could have been found, that the plaintiff’s injuries were attributable to the defendant’s negligence. The selection of the berries, the manner of assorting and preparing them for use, and the large volume of business transacted, are described in detail by the defendant’s witnesses. The evidence, however, need not be minutely reviewed. Its essential features only are important. It seems that a well defined period of demand for blueberry pies of the defendant’s brand had been established in the trade, for which it prepared by buying and keeping on hand large quantities of berries. But as they were not all used when the public appetite slackened or ceased, the unused portion for some eight or nine months, or until the succeeding season, was thereupon stored in whiskey barrels, where the extent and force of the fermentation caused the heads to burst. The jurors from common experience could have inferred without difficulty, that the fruit as a result of the process had become merely a mass of pulp thoroughly unfit for culinary purposes, and if used it might be highly injurious, or dangerous. The decomposition moreover, according to the medical testimony, had developed different toxins and poisons, making the berries noxious. If, to neutralize or overcome these properties, the defendant, with knowledge of the qualities of the ingredients, mixed fresh berries with the product of the barrels, nevertheless the fact remained, that the pies consisted in part of fermented or decayed fruit. It therefore could not have been ruled as matter of law, that the agency of fresh berries had counteracted the poisons, and caused the compound to be healthful, and the jury, as the judge correctly held, were to determine whether the pie the plaintiff bought had been properly prepared. Roberts v. Anheuser Busch Association, 211 Mass. 449. Salmon v. Libby, McNeill & Libby, 219 Ill. 421.

Exceptions overruled.