September 25, 1962
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.
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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
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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
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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 human consumption; that Scheib purchased from them meat and meat products from which he made sausage; that the additional defendants breached their warranties not only to Scheib but also to the ultimate consumers in
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the sale of meat and meat products unfit for human consumption which resulted in illness to the ultimate consumers, including plaintiffs.
Scheib's preliminary objections to plaintiffs' complaints and the additional defendants' preliminary objections to Scheib's complaints were dismissed and, thereupon, answers were filed. Consolidated. All six actions were tried before Judge CARL B. SHELLEY and a jury and the jury returned verdicts against plaintiffs and in favor of Scheib. During the trial, when Scheib had concluded his evidence, the additional defendants moved for and were granted compulsory non-suits.*fn3
Plaintiffs filed motions for a new trial and Scheib filed motions to take off the compulsory non-suit. By a 2-1 decision,*fn4 the court en banc of Dauphin County granted plaintiffs' motions for a new trial and refused to take off the compulsory nonsuits. From that action of the court below Scheib took these two appeals.
In passing upon the propriety of the action of the court below in granting a new trial we are guided by that which this Court stated in Keefer v. Byers, 398 Pa. 447, 449, 159 A.2d 477: "Ordinarily, upon an appeal from the grant of a new trial, the appellant has the very heavy burden of endeavoring to establish that the action of the court below in such regard constituted a clear and palpable abuse of discretion: [citing cases]. However, where it clearly appears, either by certificate of the trial court or in its opinion on the new trial motion,
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that, except for the reason relied upon by the court for granting a new trial, judgment would have been entered on the verdict, the action of the lower court becomes reviewable, not for an abuse of discretion, but for the legal merit of the sole and exclusive reason assigned for the granting of the new trial: [citing a case] .... We therefore have for review the merit, as a matter of law, of the reason assigned by the court below for its action."*fn5
Plaintiffs assigned four reasons for a new trial.*fn6 The majority opinion in the court below stated: "Since we are granting a new trial because the verdict was against the charge of the Court, we need not pass on the other three reasons ...." (Emphasis supplied). From an examination of that opinion it is clear beyond question that the sole and exclusive reason for the grant of new trials was that the verdicts were against the charge of the court.*fn7 In that posture of this litigation we direct our inquiry to the merit of the sole reason assigned for the grant of a new trial; whether the verdicts were against the charge of the court?
The majority of the court below believed that the jury verdicts were contrary to the following portions of the trial judge's instructions to the jury: "You must determine from the evidence did the six plaintiffs, ..., or either or any of them, suffer from trichinosis? If they didn't, then that is the end of the case and there
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would be no breach of warranty? Did the defendant breach his warranty? Did he sell to the plaintiffs infected pork sausage? If he did, he breached his warranty and the plaintiffs would be entitled to recover."*fn8 At the completion of the charge, plaintiffs requested and the trial judge charged on the following points: "1. The general rule is that where the sale of articles of food is for immediate consumption, there is an implied warranty that the food is wholesome and fit for the purpose intended, irrespective of the seller's knowledge of disease or defects therein. ... 2. If you find that the defendant Scheib sold pork sausage to the plaintiffs, and that it was unwholesome or diseased, then absolute liability is cast upon the defendant as seller of the unwholesome or diseased pork sausage, without regard to his knowledge of its presence. ... 3. If the pork sausage sold by defendant Scheib to the plaintiffs was infected with trichinae and caused the injuries suffered by the plaintiffs, then a prima facie case has been made out by the plaintiffs. ... 4. Where a consumer orders from retail dealers with whom he has dealt for a number of years a quantity of pork sausage which the retail dealer or his representatives selects for the customer, the retail dealer is not excused from liability, even if he did not know of the presence of the trichinae in the meat which he sold."*fn9
As we shall demonstrate, infra, points 2 and 3 as charged by the court are not only conflicting but under the factual situation in the case at bar clearly erroneous.
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They state in effect that, once the plaintiffs established the sale of pork sausage by Scheib*fn10 and that such sausage was unwholesome or diseased,*fn11 then, regardless of any scienter on the part of Scheib, either absolute liability would follow or a prima facie case would have been made out. Had these been the only issues in the case, under the authorities, such instructions, even though erroneous would have had to be followed*fn12 and a verdict contrary to such instructions would have to be set aside. However, the record clearly reveals that these were not the only issues in the case at bar as the trial judge so recognized in his charge and throughout the trial of the cause.
An examination of the record as it reflects the testimony received in evidence by the trial judge and of the charge of the court in its entirety, rather than by exclusive reference to the several portions of the charge emphasized in the majority opinion in the court below, clearly indicates that the jury could have found that the sale of the raw pork sausage took place, that at the time the sausage was infested with trichinae and that plaintiffs suffered trichinosis from eating the sausage and, despite such findings, properly return verdicts in favor of Scheib.
At the trial plaintiffs undertook to prove the sequence of events which transpired from the time the
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raw pork sausage was purchased until the plaintiffs became ill. They very properly presented evidence which (a) described how the raw pork sausage was protected from spoilage from the time it was purchased until it was cooked; (b) portrayed in detail how in each instance the sausage was prepared and cooked; (c) sought to eliminate other pork or pork products as the source of plaintiffs' illness by showing that the several plaintiffs had not eaten any pork or pork products other than the raw pork sausage purchased from Scheib. Such evidence was most relevant and material and the trial judge recognized such relevancy or materiality otherwise he would not have admitted it. The probability or improbability of such evidence and the credibility thereof were questions within the province of the jury and the court in its charge recognized that it was for the jury to determine the credibility of this testimony. Moreover, it was for the jury, as the court charged it, to determine whether plaintiffs did in fact rely upon the implied warranty that the raw pork sausage was fit for human consumption and whether the sausage was in fact unwholesome and unfit for human consumption. If, as the majority in the court below now opines, the only relevant and material issues before the jury were whether the sale of the sausage had taken place, whether the sausage was infected with trichinae and whether, from eating the sausage, plaintiffs became ill, why did the trial court admit into the record the testimony as to the other issues? The theory of the majority of the court below after trial was in direct conflict with the theory upon which the plaintiffs proceeded and upon which the trial judge acted during trial.
The fundamental error in the entire proceeding arises from a misapprehension in the court below of the nature and the extent of the warranty implied in law which arises from the sale of raw pork sausage.
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Acting under this misapprehension, the trial court placed Scheib at a distinct disadvantage and gave to plaintiffs an advantage which the law does not justify.
Three propositions are self-evident: (1) that Scheib sold raw pork sausage to plaintiffs; (2) that coincident with that sale an implied warranty arose;*fn13 (3) of such warranty the plaintiffs were beneficiaries.*fn14 What was the nature and extent of that implied warranty? Plaintiffs and the majority of the court below take the position that Scheib, the seller, impliedly warranted to plaintiffs that the raw pork sausage was wholesome and fit for human consumption in the raw or uncooked state. Scheib takes the position that he impliedly warranted to plaintiffs that the raw pork sausage was wholesome and fit for human consumption only if properly prepared and cooked.
In construing the nature and extent of the warranty we must bear in mind that the subject matter of the sale was raw pork sausage which is a product which the seller does not ordinarily intend and is not required ot foresee will be eaten in a raw or uncooked state and which the buyer ordinarily buys to eat cooked, not raw.*fn15 It is common knowledge that the ingestion of raw pork or raw pork products is fraught with great danger and that proper cooking of raw pork products will ordinarily destroy the trichinae and render the
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pork fit for human consumption.*fn16 Furthermore, there is no practical method of examination of raw pork to ascertain whether such pork is trichinae infested and thereafter unfit for use.*fn17
In this Commonwealth the question of the nature and extent of the warranty implied in law arising from the sale of raw pork sausage is one of first impression. Other jurisdictions have been confronted with the question and have concluded that the warranty which arises from the sale of raw pork or raw pork products is a warranty that said pork or pork product is wholesome and fit for human consumption only if it is properly cooked: Zorger v. Hillman's, supra; Feinstein v. Daniel Reeves, Inc., 14 F.Supp. 167; Silverman v. Swift & Co., supra; Meyer v. Greenwood, 125 Ind.App. 288, 124 N.E.2d 870; Arena v. J.P.Squire Co., 321 Mass. 423, 73 N.E.2d 836; Holt v. Mann, 294 Mass. 21, 200 N.E. 403; Vaccarino v. Cozzubo, 181 Md. 614, 31 A.2d 316; Nicketta v. National Tea Co., supra; Cheli v. Cudahy Bros. Co., supra. This is a sound and practical rule, a rule which recognizes that neither the seller nor the buyer intends that raw pork and raw pork products be eaten in a raw or uncooked state but only after such products are cooked. The question of whether raw pork or raw pork products has been properly cooked is a question of fact, one for determination by a jury: Meyer v. Greenwood, supra; Arena v. J.P. Squire Co., supra; Holt v. Mann, supra (Cf.: Nicketta v. National Tea Co., supra.)
In the case at bar, inferentially at least, plaintiffs recognized that they had to prove not only the sale of
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the raw pork sausage and that, from eating such sausage, they became ill of trichinosis but also the manner and method of cooking for they presented, in each instance, testimony as to how the sausage was prepared and cooked. Unfortunately the trial judge misconstrued the nature and extent of the warranty as is evident from an examination of the record. Scheib requested the court to charge that Scheib "warranted only that the pork sausage was wholesome and fit if properly cooked" and the court refused to do so. Again, Scheib's counsel called the trial judge's attention to the fact that his charge had not covered the fact that the warranty was conditioned on a proper cooking of the sausage and the trial judge replied: "We say we didn't discuss it because it wasn't proper". As a result of this misapprehension on the part of the trial judge, the plaintiffs were given a great advantage and Scheib seriously disadvantaged. Of that, however, plaintiffs are in no position to make complaint.
Under the rationale of the majority of the court below Scheib was liable as a matter of law and no verdict for Scheib could possibly stand. The liability of Scheib depended on various issues of fact which were before this jury and which the jury must have considered in arriving at its verdict. We see no merit in the position of the majority of the court below that the jury either ignored and acted contrary to the instructions of the trial judge if such instructions are examined in their entirety. The mistake that was made was in a faulty interpretation of the nature and extent of the warranty involved and such mistake worked to the benefit not to the disadvantage of the plaintiffs and they secured much better treatment at the hands of the trial court than they deserved under the law. They stand in no position now to complain. We agree with Judge KREIDER'S statement in his dissenting opinion: "To grant a new trial under the circumstances here present,
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in my judgment would strip from the jury its constitutional right to act as the trier of the facts and pass upon the issues presented to them by the Court with the approval of plaintiffs' counsel."
Scheib has also appealed from the refusal of the court below to take off the compulsory nonsuits entered in favor of the additional defendants. In view of the conclusion we have reached as to the grant of a new trial, the question raised as to the compulsory nonsuits need not be considered.
Mr. Justice MUSMANNO dissents.
Order reversed, with direction to enter judgments on the verdicts in favor of Scheib and against plaintiffs.*fn*
Mr. Justice MUSMANNO dissents.
* The court below did not pass on the three additional reasons for a new trial advanced by plaintiffs, i.e., that the verdicts were against the evidence, the weight of the evidence and the law. In the interests of expediting this matter we have, in examining the record, weighed these reasons and find them without merit: accordingly, no useful purpose can be served in remanding to the court below for this purpose.