Gilbert Cameron, of Meridian, for appellant.
The plaintiff relies in this case for a recovery solely on the fact that the pie was eaten and that illness resulted therefrom and that this pie was purchased of the appellant. There was no proof of any foreign substance or poisonous bacteria in this pie except so far as this might be inferred from the fact that the pie made them sick when it was eaten. This pie was eaten some 24 hours after it was purchased and after it had been hauled from the grocery store to the country residence in an automobile and carried into the house and placed on a dining room table where it remained until noon the following day. It was not consumed on the premises where purchased. We have found no case where any court has held that liability attached in such a state of facts either on the basis of an implied or express warranty or on a charge of negligence. In this case, aside from the testimony of the doctors, the possibility of infection of this pie after its purchase and before being eaten is obvious and apparent. It would be an intolerable rule that would hold a manufacturer or seller of foods liable whether in contract or in tort where the food was cooked and delivered to the purchaser and passed beyond the control of the seller, in an unsealed container, placed in a family automobile and hauled out to a country home where it was placed on the dining room table, on a hot September day, and there remained without any refrigeration for a period of about 24 hours, when it was taken from the box, handled, sliced and then consumed, in the absence of any proof that this pie contained deleterious bacteria or any intimation as to the kind of bacteria, if any, in this pie and without the slightest proof even intimating that the sanitary conditions surrounding this pie after it left the store until it was eaten made infection impossible, but on the contrary under the testimony and facts of the case, the manner and method used in handling this pie made it not only possible but obviously most probable that this pie became infected, if infected, after it left the bakery.
Merely because one becomes sick from eating food raises no presumption that it was infected when purchased. This is true whether the action be in tort or on contract. The burden of proof is on the plaintiff to show that the food was infected when it left the hands of the manufacturer. The rule of res ipsa loquitur does not apply unless there was some foreign substance shown to have been in the food when purchased that caused the illness or that the manner and method used in handling the food after the purchase was such as to preclude the possibility of infection after purchase.
Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791; Rainwater v. Hattiesburg Coca-Cola Bottling Co., 131 Miss. 315, 95 So. 444; Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97; Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305; Chenault v. Houston Coca-Cola Bottling Co., 151 Miss. 366, 118 So. 177; Bufkin v. Grisham, 157 Miss. 746, 128 So. 563; Cudahy Packing Co. v. McPhail, 170 Miss. 508, 155 So. 163; Cudahy Packing Co. v. Baskin, 170 Miss. 834, 155 So. 217; Armour Co. v. McMillain, 171 Miss. 199, 155 So. 218; Swift Co. v. Hawkins, 174 Miss. 253, 164 So. 231; Blount v. Houston Coca-Cola Bottling Co., 184 Miss. 69, 185 So. 241; Delta Nehi Bottling Co. v. Lucas, 184 Miss. 693, 185 So. 561; Johnston v. Swift Co. of Illinois, 186 Miss. 803, 191 So. 423; Coca-Cola Bottling Works of Columbus v. Petty, 190 Miss. 631, 200 So. 128.
The defendant filed a demurrer to the declaration setting up that the action was one in contract and not in tort and that the cause of action died with the deceased and that the plaintiff had no cause of action. This is based upon the fact that at common law there was no right in the representatives or next of kin to institute suit for the death of a party until the passage of the Lord Campbell's Act. On the trial of the case the plaintiff asked and was given the usual instruction on the measure of damages in negligence cases. In other words, the action was based upon a breach of contract but submitted to the jury all of the damages to which she would have been entitled if the action had been brought for negligence under our Lord Campbell's Act, being Section 1453 of the Code of 1942. This section deals with death caused by the negligence of defendant and does not cover those cases of injuries where they grow out of a breach of contract. Even in an action of tort the right of the heirs or legal representatives to sue is not a survival of the cause of action but the statute creates an independent cause of action in them. The gravamen of a suit for a breach of warranty and a breach of legal duty is widely different. Take the case of food poisoning which we have before us. In a suit for a breach of warranty of fitness it doesn't make any difference how much precaution was exercised by the vendor of the food and it would make no difference that, even after the food had been prepared with the most scrupulous regard to the sanitary condition of the food, yet even after the food had been prepared and before its delivery some vicious third party poisoned this food and it was sold and delivered in this poisoned condition without any knowledge on the part of the seller that it had been tampered with, yet the seller would be liable to the purchaser. In the one case it is not necessary to prove negligence or lack of care on the part of the producer, on the other, it is. For this reason, all suits are now filed in these food cases on theory of a breach of an implied warranty and seek to recover all the damages that would accrue to the plaintiff in cases of the most culpable fault. In other words, our court recognizes the wide distinction in these types of cases. If it was the intention of the Lord Campbell's Act that all breaches of implied warranty, where food is involved, is the same as an action in tort then the distinction drawn in these cases is not valid.
See S.H. Kress Co. v. Lindsey (5 Cir.), 262 F. 331, 13 A.L.R. 1170, 74 A.L.R. 343.
We submit that the court erred in overruling the demurrer to the declaration.
J.E. Parker and J.V. Gipson, both of Meridian, for appellee.
The facts of this case are largely, if not entirely, without dispute and there is no defense or contention as to the general law prevailing concerning the implied warranty of the suitableness of food for human consumption when sold for that purpose. It will not be contended that the defendant in this case did not impliedly warrant the pie in question to be wholesome and safe for use for human consumption, and that if such pie, when sold, was not in this condition and the deceased was caused to die as a result thereof, then the defendants were liable. The only controversy concerning the law in this case is directed to the application of the law to the facts in this case because there was no definite foreign object in the food in question which was located by the plaintiff in this case, but the unwholesomeness of the food must be shown from the effects following the use thereof.
The fact that the pie in question was manufactured and sold by the defendant and caused the death of the consumer thereof was sufficient to sustain liability.
Cudahy Packing Co. v. McPhail, 170 Miss. 508, 155 So. 163; Cudahy Packing Co. v. Baskin, 170 Miss. 834, 155 So. 217; Armour Co. v. McMillain, 171 Miss. 199, 155 So. 218; Johnston v. Swift Co. of Illinois, 186 Miss. 803, 191 So. 423; Stell v. Townsend Cal. G. Fruits, 28 P.2d 1077; Catani v. Swift Co., 95 A. 931, 1917B, L.R.A. 1272; Parks v. Yost Pie Co., 144 P. 202, 1915 L.R.A. 179; Davis v. Van Camp Pac. Co., 176 N.W. 382; Bark v. Dixson, 131 N.W. 1087, Ann. Cas. 1912d 775; Flessher v. C., Packing Co., 160 P. 14; MacLehan v. Loft Candy Stores (La.), 172 So. 367.
It is contended that the trial court should have sustained a demurrer filed by defendant to the effect that the wife of the deceased had no right to bring this action, and that this cause is not now maintainable. It is the contention that the Mississippi law has stated in Section 510 of the Code of 1930, wherein a new cause of action has been created for injuries producing death is limited to actions of negligence and does not include other wrongful deaths. We think that such contention is clearly wrong.
The true test of any right to recover under the statute, is whether the deceased could have maintained an action had death not resulted: It is manifest that the purpose of our statute was to create a liability in favor of the living against any defendant who would have been liable to the dead if he had not died for any wrongful act.
Kirkpatrick v. Ferguson-Palmer Co., 116 Miss. 874, 77 So. 803; S.H. Kress Co. v. Lindsey (5 Cir.), 262 F. 331, 13 A.L.R. 1170; Howard's Admr. v. Hunter, 104 S.W. 723; Greco v. S.S. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 115 A.L.R. 1020.
Argued orally by Charles B. Cameron, for appellant, and by J.V. Gipson, for appellee.
1. ABATEMENT AND REVIVAL.
A cause of action upon an implied warranty did not survive at common law.
2. DEATH.
The statute giving decedent's widow or other heirs a cause of action for death is not a statute of survival but creates a new and independent cause of action (Code 1942, sec. 1453).
3. TORTS.
An injury may give rise to an action either ex delicto or ex contractu, and fact that tort involves a breach of contract does not impair right to sue for the tort.
4. ACTION.
A suit which is brought avowedly upon negligence invokes the breach of duty, even though it arises out of a contractual relation, as a tort and not as a breach of contract.
5. DEATH.
The meaning of statute giving widow or other heirs a cause of action for death caused by any real "wrongful" or negligent act or omission, etc., was enlarged by the use of quoted word so as to include felonious acts (Code 1942, sec. 1453).
6. DEATH.
The statute giving widow or other heirs a cause of action for death caused by any real "wrongful or negligent act," etc., uses "wrongful" as meaning tortious, and a breach of contract is not such wrongful or negligent act within the statute (Code 1942, sec. 1453).
7. DEATH.
An action for death of plaintiff's husband caused by eating allegedly poisonous cocoanut pie manufactured and sold by defendant based upon breach of implied warranty could not be maintained under statute giving widow or other heirs a cause of action for death caused by any real "wrongful or negligent act," etc. (Code 1942, sec. 1453).
8. DEATH.
Injured party's right to maintain an action had he survived is a prerequisite to suit for his death under statute giving widow or other heirs such a cause of action, but it is also necessary that death was caused by a real wrongful or negligent act or omission or by unsafe machinery, way or appliance (Code 1942, sec. 1453).
9. DEATH.
In statute giving widow or other heirs a cause of action for death caused by any "real wrongful" or negligent act, etc., some emphasis must be imputed to quoted words as narrowing statute's meaning to an actual and not a nominal or constructive wrong (Code 1942, sec. 1453).
10. DEATH.
The statute giving widow or other heirs a cause of action for death must be strictly construed (Code 1942, sec. 1453).
Alexander, J., delivered the opinion of the court.
Appellee, as widow, brought suit against Hasson Grocery Company on account of the death of her husband, caused by eating of a portion of cocoanut pie manufactured and sold by the defendant. It is alleged that the food contained a poisonous substance and the suit is brought under 2 Miss. Code 1942, Section 1453.
The testimony is extensive upon the issue of cause and effect, but we will notice only the contention raised by the demurrer that Section 1453 does not give to the widow a cause of action arising ex contractu. The declaration is meticulously drawn to ground the action upon breach of implied warranty and the plaintiff's only instruction upon liability is drawn so as to present such basis, authorizing judgment solely upon a finding that the pie was poisonous and was prepared and sold by defendant, and that it was bought by plaintiff and eaten by the deceased to his injury.
Section 1453 is our adaptation of Lord Campbell's Act, 9 10 Vict. chap. 93, which in derogation of the common law gave a cause of action to the executor or administrator of a person whose death had been caused by defendant's "wrongful act, neglect or default." Our statute extended this right to the widow or other appropriate heirs of the deceased when the death has been "caused by any real wrongful or negligent act, or omission, or by [any] unsafe machinery, way or appliances" in cases where the injured party, had he survived, could have maintained an action in respect thereof.
The demurrer raises squarely and concisely the question whether the statute gives to the widow a right of action upon an implied warranty. That such cause of action did not survive at common law is clear. Kirkpatrick v. Ferguson-Palmer Co., 116 Miss. 874, 77 So. 803; S.H. Kress Co. v. Lindsey (5 Cir.), 262 F. 331, 13 A.L.R. 1170; 1 C.J.S., Actions, Sec. 45, p. 1099; 1 Am. Jur., Abatement and Revival, Sec. 83. The statute is not one of survival but creates a new and independent cause of action. Thames v. Mississippi (5 Cir.), 117 F.2d 949, 136 A.L.R. 926, certiorari denied 314 U.S. 630, 62 S.Ct. 63, 86 L.Ed. 506; St. Louis S.F.R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 39 L.R.A. (N.S.) 978, Ann. Cas. 1914B, 597; 25 C.J.S., Death, Sec. 15; 16 Am. Jur., Death, Sec. 61, p. 48; Tiffany, Death by Wrongful Act (2d Ed.), Sec. 23.
It will be borne in mind that we are not faced with a right of action for the negligence of defendant, and however, pertinent may be the tragic and deplorable consequences of the innocent conduct of the deceased nor the extent of damages recoverable by him had he survived, our inquiry is whether the law has given to plaintiff a right to recover damages for the unfortunate death of her husband arising out of a breach of warranty between him and the defendant. Plaintiff is not here suing for any damage occasioned to her by partaking of infected pie, nor upon any theory of privity of contract. Therefore the legal issue remains: is a right of action ex contractu by a widow for death of her husband created by the statute? If such right exists it must be comprehended within the language "real wrongful or negligent act."
Concededly an injury may give rise to an action either ex delicto or ex contractu. That the tort involved a breach of contract is no impairment of the right to sue for the tort. The contractual relation expends its force once it has served to establish a relationship which creates duties whose breach constitute the tort. Braun v. Riel (Mo. Sup.), 40 S.W.2d 621, and case notes in 80 A.L.R. 884, 115 A.L.R. 1026. But suits when brought avowedly upon negligence invoke the breach of duty as a tort and not as a breach of contract. An illustrative case is Thaggard v. Vafes, 218 Ala. 609, 119 So. 647, 649, where the court stated: "While the authorities are agreed that a mere breach of contract is not a wrongful or negligent act within the meaning of statutes giving a right of action for wrongfully causing death, yet they are also agreed that the negligent or tortious breach of a duty to the person whose death is caused thereby is within the statute, though such duty arises out of contract." The suit was based upon negligence.
The history of our statute traces its purpose to the injustice and inconsistency of "sanctioning damages for short-lived pains and refusing them for a life-long sorrow and the pecuniary losses consequent upon the death of one from whom was derived support, comfort and even the necessary stays of life." Van Amburg v. Vicksburg, S. P.R. Co., 37 La. Ann. 650, 55 Am. Rep. 517. See also 16 Am. Jur., Death, Sec. 48. The early refinements were concerned with the definitive scope of "negligence," involving the propriety of including deliberate or felonious acts within its area. By employing the term "wrongful" its meaning was expanded so as to include felonious acts. McClure v. Alexander, 24 S.W. 619, 15 Ky. Law Rep. 732, after stating that negligent acts alone were contemplated by such statutes held that "the words `wrongful act' were intended to denote . . . all kinds of acts from which negligence could arise." Nowhere in the materials from which this statutory reform was constructed is there found any reference to acts that were wrongful except in a tortious sense. Barley's Adm'x v. Clover Splint Coal Co., 286 Ky. 218, 150 S.W.2d 670; Bloss v. Dr. C.R. Woodson Sanitarium, 319 Mo. 1061, 5 S.W.2d 367. The wrongdoer is referred to as a tort feasor and all discussion of both the evil and the remedy assumes that the wrongful act is either purposeful or negligent. A breach of contract is not such "wrongful or negligent act." S.H. Kress Co. v. Lindsey, supra (construing our statute); cf. Burkhardt v. Armour Co., 115 Conn. 249, 161 A. 385, 90 A.L.R. 1261; Howson v. Foster Beef Co., 87 N.H. 200, 177 A. 656; 16 Am. Jur., Death, Secs. 56, 69-73; 4 Restatement, Torts, Sec. 925, 25 C.J.S., Death, Sec. 23; Tiffany, op. cit. supra, Secs. 18, 20, 62 seq.; Greco v. S.S. Kresge Co., 277 N.Y. 26, 12 N.E.2d 557, 115 A.L.R. 1020, expresses an isolated and dissentient view. Suit was by the administrator and the language of the applicable statute is not identical with ours. In denoting a breach of warranty as a "default" the court seems to have given scant consideration to the fact that while such default was actionable, the action should have been ex delicto, and this, too, despite its concession that the contemplated acts under Lord Campbell's Act were all tortious. Our statute does not use the term "default." Appellee contends that the controlling test of her right to sue is whether the action could have been brought by the husband had he survived. This is a prerequisite but the initial requirement remains that the death must have been caused by a real wrongful or negligent act. The latter condition restricts rather than enlarges the right of the surviving spouse. We must impute some emphasis to the words "real wrongful" in our statute as narrowing its meaning to an actual and not a nominal or constructive wrong. Astor v. Merritt, 111 U.S. 202, 4 S.Ct. 413, 28 L.Ed. 401. This is especially proper in view of the necessity of upholding a strict construction. Cf. McNeely v. City of Natchez, 148 Miss. 268, 114 So. 484.
It is by no means intimated that a surviving spouse is without remedy nor what remedy may be available. Common observation confirms the fact that suits for injuries due to deleterious food products have ordinarily been grounded upon breach of warranty. The leverage of such theory has seldom been foregoing in favor of an action of which negligence is the gravamen. Yet a faithful preservation of the integrity of the separate forms of action identifies each with its respective benefits and burdens, available offensively or defensively. Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97, 44 A.L.R. 124. The freedom of selection accorded an injured plaintiff finds its echo in that of the legislature to elect what new causes of action will be bestowed upon survivors or personal representatives. If appellee is denied the right to maintain this action it is not by the technicality of construction but by the asserted "wrongful or negligent omission" of the legislature in thus restricting the scope of such actions. Plaintiff chose to seek the supposed privileges of our statute; she must be held bound by its limitations. She has elected to follow the comparatively open path of implied warranty. We are compelled to hold that it leads outside the statute.
The demurrer ought to have been sustained.
Reversed and remanded.
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