Appeals, Nos. 33 and 34, May T., 1962, from order of Court of Common Pleas of Dauphin County, Sept. T., 1959, Nos. 943, 944, 945, 946, 947 and 948, in case of Dorothy Anna Adams, George D. Adams, Raymond F. Shomper et al. v. Ernest Scheib, trading as Scheib's Grocery Store, Herman P. Hervitz, Rose Hervitz Kahn, co-partners, trading as Hervitz Packing Company of Harrisburg, et al. Order reversed; reargument refused October 26, 1962.
Huette F. Dowling, with him John C. Dowling, John H. Bream, and Dowling & Dowling, for defendant, appellant.
Bruce E. Cooper, with him Cooper and Woodside, for plaintiffs, appellees.
Martin H. Lock, with him William D. Boswell, James H. Thomas, and Compton, Handler, Berman & Boswell, and Hull, Leiby & Metzger, for additional defendants, appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
These two appeals*fn1 challenge the propriety of the action of the Court of Common Pleas of Dauphin County
in (1) granting new trials in each of six assumpsit actions after jury verdicts in favor of the original defendants in each action and (2) in refusing to take off compulsory nonsuits entered, during trial, in each of said actions in favor of the additional defendants and against the original defendant.
Dorothy Adams, George Adams, Raymond Shomper, Doris Neiter, Earl Neiter, Allen Hoke, Florence Daniels, Gerald Daniels and Harold Schreffler (plaintiffs) on or about October 4, 1958 purchased or caused to be purchased some raw pork sausage from Ernest Scheib (Scheib) who operates a grocery store and meat market in Lykens, Dauphin County. The plaintiffs, allegedly, ate portions of this sausage after it had been cooked and, shortly thereafter, became ill of trichinosis.*fn2
On or about November 9, 1959, each plaintiff filed a separate action of assumpsit, based on a breach of an implied warranty, against Scheib, the seller of the sausage, in the Court of Common Pleas of Dauphin County. Except as to the damages claimed, each complaint similarly averred that plaintiffs, relying upon an implied warranty by Scheib that meat and meat products sold by him were wholesome and fit for human consumption, on or about October 4, 1958 purchased raw pork sausage from Scheib; that plaintiffs ate a portion of the sausage so purchased and became ill of trichinosis; that the sausage was not wholesome and fit for human consumption but contained animal parasites known as trichinella spiralis or trichinae; that Scheib breached his implied warranty; that plaintiffs became ill and suffered damage; that notice of the breach of such warranty was duly given Scheib.
On January 9, 1960, Scheib filed complaints to join as additional defendants in the actions Herman Hervitz and Rose Kahn, t/a Hervitz Packing Company, Hollinger's Meat Products, Inc., Kessler's Inc., and Shamokin Packing Company, Inc. (additional defendants). In these complaints Scheib averred that the additional defendants were engaged in the wholesome meat packing business; that they offered for sale and did sell to retailers, including Scheib, meat and meat products and did warrant to said retailers, including Scheib, that meat and meat products sold by them were wholesome and fit for human consumption; that they knew the meat and meat products sold to Scheib were for resale to the public, including plaintiffs, and they did warrant to said ultimate consumers that the meat and meat products were wholesome and fit for ...