HEINEMANN v. BARFIELD. (No. 194.) (Supreme Court of Arkansas. Oct. 28, 1918.)

1. FOOD 25-SALE OF POISONED FLOURCAUSE OF ACTION FOR NEGLIGENCE.

Where a provision dealer sold plaintiff's husband flour, which, in the exercise of reasonable care, he should have known contained poison, whereby plaintiff was poisoned, and suffered physical and mental pain, plaintiff had a cause of action against the dealer for negligence.

2. PLEADING 9-CONCLUSION FROM FACTS

ALLEGED-NEGLIGENCE.

Where a complaint alleges facts which, if proved, would show that the acts complained of were negligent or wrongful, it is unnecessary for the pleader so to designate them. 3. PLEADING 8(21)-CONCLUSION.

In suit against a provision dealer for negligently selling poisoned flour, allegation that he sold flour which he knew, or should have known, contained arsenic, which sale resulted in the poisoning of plaintiff, was the statement of a fact, and not merely a legal conclusion.

4. TRIAL 349(3)—INSTRUCTIONS IN FORM OF INTERROGATORIES.

In action against provision dealer for negli gence in sale of poisoned flour to plaintiff's husband, whereby plaintiff was poisoned, instructions in form of interrogatories, though peculiar and unusual, stating law correctly, and containing no reversible error, held proper.

5. FOOD 25-NEGLIGENCE IN SALE-LIABILITY "ACTIONABLE NEGLIGENCE."

Dealers furnishing food for human consumption are bound to exercise care respecting fitness

of articles, and are liable in damages if, by their negligence, unwholesome provisions are sold and persons made ill thereby, actionable negligence being failure to exercise care of man of ordinary prudence to prevent damage to customers from articles bought for immediate use. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Actionable Negligence.]

The appellee brought this action against the appellant. She alleged that appellant was a merchant in Newport, Ark.; that he was a dealer in flour and other foodstuffs; that on or about December 11, 1916, the appellant sold to R. H. Barfield, the husband of the appellee, a sack of flour which contained arsenic, which the appellant knew was to be used by the family of R. H. Barfield, of which appellee was a member; that the appellant knew, or in the exercise of that degree of care required of him should have known, that the flour was impure, unwholesome, and contained arsenic; that on the 12th of December, 1916, appellee ate some of the flour which had been prepared and cooked for food, and because of the poisonous substance in the flour she was caused to be violently ill, and to suffer great physical and mental pain and anguish, and that she continues to so suffer; that her illness, pain, and sufferings were caused by the wrongful act of the appellant in so selling, for use as human food, the flour which contained poison as before alleged; that, by reason of the wrongful

6. FOOD 25 - NEGLIGENT SALE OF UN-act of the appellant, the appellee was forced WHOLESOME FOOD-EXTENSION OF RIGHT OF to spend money for medicine and medical atACTION "Negligence." tention, and will be compelled in the future Where cause of action against provision to make such expenditure; that her health dealer is predicated not upon implied warranty had been permanently impaired by reason of of fitness for human consumption, but upon a the wrongful act, all to her damage in the negligent sale of unwholesome food for immedi- sum of $7,500, for which she prayed judgate consumption, right of action for damages ment. is not confined to immediate purchaser, but extends to any person who might reasonably be expected to suffer injury, being based on "negligence," failure to exercise ordinary care to prevent injury reasonably to be anticipated.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Negligence.]

7. FOOD 25 NEGLIGENCE IN SALE OF POISONED FLOUR-QUESTION FOR JURY. Whether arsenic was mingled with a provision dealer's flour, which he subsequently sold, through his negligence in directing that rat

lee to make her complaint more definite (1) The appellant moved to require the appelby "setting out what degree of care the law requires of one who deals in food for human consumption"; (2) by "setting out what wrongful act upon the part of the defendant the plaintiff relies." The motion to make more specific was overruled; whereupon appellant filed a general demurrer, which was also overruled; and the appellant answered, specifically denying the allegations of the complaint, and alleging that, if the plaintiff was

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injured from eating unwholesome food, it A portion of the flour left on the bread was the result of her own negligence; that R. H. Barfield had equal opportunity with the appellant for determining whether the flour contained poisonous matter at the time of the purchase. Appellant further alleged that there was no privity of contract between the appellee and the appellant in the purchase of the flour, and that the appellee assumed the risk of using the flour if the same was unwholesome as alleged.

board after mixing the dough for the biscuits was preserved in an envelope, and delivered to a chemist, whose analysis showed that it contained 35.3 per cent. of arsenic. The sack of flour from which the biscuits were made was taken by one of the doctors, who found a large quantity of arsenic in the sample that came off the top of the sack, but found none in that which came out of the middle or the bottom of the sack. Before beginning to use from the sack of flour in question, appellee had set the same unemptied in her flour barrel. After the occurrence the flour was emptied into the barrel, and was thereafter taken out of the barrel by Dr. Stevens and put in a sack.

The facts are substantially as follows: R. H. Barfield was a colored man living on appellant's place as a tenant. Appellant was a merchant, and furnished Barfield his supplies. Appellee was the wife of R. H. Barfield. Living in the house with Barfield and his wife were Foreman Adkisson and his It was shown that on October 15, 1916, one wife and child, Barfield's father and his of the employés in appellant's store bought wife, and R. H. Barfield's two children. On a 2 or 21⁄2 ounce package of Rough-on-Rats. the morning of the 12th of December, 1916, The druggist who made the sale testified the appellee cooked biscuits out of a sack that Rough-on-Rats runs all the way from 15 of flour that had been purchased from the to 20 per cent. arsenic. The day after the appellant a few days before. Appellant was occurrence appellant went to the Barfield a retail merchant, and had purchased the home in company with the sheriff and anothflour in question from the Stevens Grocer er, and they gave orders to burn the barrel Company, a wholesale grocery firm of New- from which the flour had been taken. A cup port, Ark. Appellant did not know where of the flour had been taken out of the barrel the flour was made. The flour was sold to to be saved for a sample, and appellant Barfield or Foreman Adkisson by one of the ordered this flour thrown in and burned with appellant's clerks. Appellant knew nothing the barrel, saying the chances were that of the sale of the particular sack of flour at some of the rest of them out there might get the time it was sold. The flour was one of poisoned out of that flour. three sacks that had been kept in a large bin lined with tin. It had a front door which let down with hinges and a screen for ventilation. The flour was kept in sacks. There were three sacks that had been torn, and the flour in them had been put into new sacks and these sacks were tied with a string like an ordinary bag. The flour in question was in one of the sacks that had been so refilled. There was some loose meal and flour in the bin the day that the sacks were refilled, which was cleaned out and thrown into the refuse can and burned on the same day that the flour in question was sold.

Appellee testified that the sack in question from which she took the flour was not a full sack, and appeared to have been opened and tied up. There was a small hole in the side of the sack. She took the flour out of the top of the sack with her hand, rolled the dough on the board which she always used, and used the same pan that she had been using before. Appellee and her husband, Foreman Adkisson and his wife, and appellee's father were all that were at the table. Soon after eating breakfast they all became sick. A physician was sent for, and he arrived about 9 o'clock. He found R. H. Barfield on the floor very sick, vomiting, and his bowels moving involuntarily. The condition of the others was the same, but not so severe. He sent for three other physicians. They diagnosed the symptoms as having been caused by acute arsenic poisoning.

It was shown that Albert Lichtig, an employé of the appellant who had charge of the grocery department, put out rat poison all around the flour bin. He went out and bought some cheese and took the poison and fixed it on the cheese. The witness who observed this did not know whether he put the poison in a hole in the cheese or just sprinkled it on. Witness was not instructed to take up the poison the next morning after it was put out. Appellant had dogs that were in the store very often. Something like a week before the 12th of December, 1916, Lichtig cleaned up the bin, taking the flour from the floor of the bin and putting it in one of the sacks.

There was testimony on behalf of the appellant tending to show that the loose flour that was in the bin after resacking was scraped up and put in the refuse can and burned; that one of these sacks of flour was sold to the negro porter, one was sold and sent to a family living on a boat, and the other to Adkisson or Barfield; that none of the porter's family, nor the family on the boat, suffered any injury from eating the flour; that the Rough-on-Rats was purchased by appellant's employé on October 15th, and was put in a hole made in cheese, and the cheese placed on cardboards set about on the floor of the store for the purpose of killing rats; that this was done for a period of about 14 nights from the date of the purchase of the rat poison; that the same cheese and

he knew at the time, or should have known, contained arsenic, which sale resulted in the poisoning of another, is the statement of a fact, and not merely a legal conclusion. In Fordyce v. Nix, 58 Ark. 136, 23 S. W. 967, we said:

"Under the reformed procedure courts regard

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the substance rather than the form.
"The character of the action must be determined
by the nature of the grievances rather than the
form.'

See, also, Crowder v. Fordyce Lumber Co., 93 Ark. 393, 394, 125 S. W. 417; C. J. vol. 1, p. 1018.

The complaint tendered an issue which, being denied by the answer, made the issue complete and called for the proof. The court did not err in overruling the demurrer and the motion to make more specific.

[4] 2. Under the instructions of the court, the only issue presented to the jury was whether or not the appellant was guilty of negligence in selling flour that contained arsenic. While the manner of presenting this issue under instructions in the form of interrogatories was peculiar and unusual, yet, after carefully considering these instructions, we conclude they correctly state the law and contained no reversible error. The interrogatories were clear and concise, and the jury could not have been misled into giving an erroneous answer or one that they did not

intend.

[5] The duty which a retail seller of food for immediate consumption owes to his customers is succinctly and correctly stated in Ruling Case Law as follows:

gence; that is, a failure to exercise ordinary care to prevent injury to those who the seller of the unwholesome article of food might reasonably anticipate would be injured. Ezra Craft v. Parker, Webb & Co., 96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139. See, also,

Colyar v. Little Rock Bottling Works, 114

Ark. 140, 146, 169 S. W. 810. Instructions No. 8 and No. 9, given by the court, correctly declared the law in conformity with the rules above announced.

[7] 3. Appellant contends that the evidence on the issue of negligence is not sufficient to sustain the verdict. The testimony bearing on this issue is set forth in the statement, and it could serve no useful purpose to discuss it in detail. There was decided conflict in the evidence, but it cannot be said that the testimony of the witnesses on behalf of the appellee, tending to show negligence on the part of the appellant, was contrary to the physical facts. The jury were warranted in finding from this testimony that the appellant caused "Rough-on-Rats" containing arsenic in such proportions as to constitute a deadly poison to be placed around and in such close proximity to the flour bin that such poison was carried by mice or rats to the flour in the bin; that such flour was sold to appellee's husband, which sale caused the injury of which she complained.

The undisputed evidence shows that the appellee was injured by arsenical poison. There was testimony tending to prove that flour taken from the same sack out of which the flour was used for making the biscuits of which appellee ate contained arsenic in deadly quantities; that a sample of the flour remaining on the bread board after appellee had mixed the dough for the biscuits also con

"Persons who engage in the business of furnishing food for consumption by man are bound to exercise care and prudence respecting the fit-tained arsenic. Under the testimony adducness of the articles furnished, and they may be held liable in damages if, by reason of any negligence on their part, corrupt or unwholesome provisions are sold and persons are made ill thereby." 11 R. C. L. 1118, and cases cited in

note.

ed, it was an issue for the jury to determine whether this poison was communicated to the flour through the negligence of the appellant in directing the rat poison to be placed in proximity to the flour bin, as shown by the testimony of the witnesses on behalf of Actionable negligence in such cases is the the appellee. Without pursuing the matter failure to exercise such care as a man of or- further, it suffices to say that the issue was dinary prudence would exercise under the for the jury, and there, was evidence of a same circumstances to prevent injury and substantial character to sustain the verdict. damage to his customers by the sale of ar- [8] 4. Appellant duly objected and exceptticles which he knows are bought by themed to the ruling of the trial court in permitfor immediate use as food. Pollock, Torts ting appellee to propound to one Dr. Willis (8th Ed.) 28; 1 Thompson on Negligence, § 23. a certain hypothetical question, and in per[6] Where the cause of action is predicat-mitting witness to answer same. The quesed, not upon implied warranty, but upon the tion embraced all the undisputed facts essennegligent sale by a retail dealer of unwhole- tial to the issue as to whether the injuries some food products for immediate consump of which appellee complained were produced tion, liability for the damages resultant from by arsenical poison. The specific objection the sale of such food products is not confined pointed out by learned counsel for appellant alone to the immediate purchaser thereof. in their brief is that there was no testimony The liability extends to any persons who tending to prove that appellee, prior to the might reasonably be expected to suffer in- date of her injury, was a healthy person. jury therefrom. The liability in such cases Appellee was asked: What was the condition does not grow out of contract, and is not bas- of your health prior to the time or before ed upon implied warranty, but upon negli- the time you got poisoned?" Her answer

was: "My health was always good. I could | Heinemann v. Pattie Barfield, 207 S. W. 58. do most anything in the way of work." Her Other allegations were as to R. H. Barfield's answers further show that she did both farm and house work.

The hypothetical question was well within the rule announced in Taylor v. McClintock, 87 Ark. 243, 294, 112 S. W. 405; Ford v. Ford, 100 Ark. 518, 524, 140 S. W. 993; Williams v. Fulkes, 103 Ark. 196, 146 S. W. 480; Newport Mfg. Co. v. Alton, 130 Ark. 542, 198 S. W. 120.

The record presents no reversible errors, and the judgment is therefore affirmed.

HEINEMANN v. BARFIELD. (No. 197.)
(Supreme Court of Arkansas. . Oct. 28, 1918.)
SALES 274-WARRANTY OF FITNESS OF
FOOD FOR CONSUMPTION.

Where flour was sold by retail dealer to consumer for immediate use, there was implied warranty flour was fit for food, and, where it contained arsenic, which, when served in bread by his wife, poisoned the purchaser, the dealer

was liable to his estate as for breach of warranty.

sickness, suffering, and death. There was an allegation that the deceased contributed to the support of said widow and child, and by his death they have been deprived of his companionship and care and of his support. There was a prayer for damages for the benefit of the estate in the sum of $10,000, and also for the benefit of the widow and child in the sum of $10,000.

There was a motion to make the complaint more specific and a demurrer to the complaint, both of which were overruled. The answer denied the material allegations of the complaint except as to the representative capacity of the plaintiff. The facts on the issue of negligence are the same as those developed by the evidence in the case of S. Heinemann v. Pattie Barfield, and the instructions are the same, except that in the instant case the court authorized the jury, in case they found for the plaintiff, to return a verdict in separate amounts for the benefit of the estate of the deceased, R. H. Barfield, and also for the benefit of his widow and next of kin. The jury returned

a verdict for the benefit of the estate in the sum of $2,000 and for the benefit of the

Appeal from Circuit Court, Jackson Coun- widow and next of kin in the sum of $3,000, ty; D. H. Coleman, Judge.

Suit by Pattie Barfield, as administratrix of the estate of R. H. Barfield, against S. Heinemann. From judgment for plaintiff, defendant appeals. Affirmed.

Jno. W. Newman, of Little Rock, and S. D. Campbell and Gustave Jones, both of Newport, for appellant.

Ira J. Mack, of Newport, for appellee.

WOOD, J. This was a suit by Pattie Barfield, as administratrix of the estate of R. H. Barfield, deceased, for the benefit of herself, as widow, and Lusky Barfield, the next of kin, of R. H. Barfield. The complaint alleged that she had been duly appointed administratrix of the estate of R. H. Barfield; that she was the widow of R. H. Barfield, and that Lusky Barfield was their minor child; that R. H. Barfield, her husband, was made sick and afterwards died from the effects of poison caused by eating bread made from the flour which was sold to him by the appellant. The complaint alleged:

and from a judgment rendered according to the verdict is this appeal.

The ruling of the court was correct in overruling the motion to make the complaint more specific and the demurrer to the complaint. The complaint states a cause of action, as was held in the case of S. Heinemann v. Pattie Barfield. The facts on the issue of negligence and the instructions to the jury on that issue were the same as those in the case of Heinemann v. Pattie Barfield, and this case is ruled by that on the issue of negligence.

The judgment in favor of the appellee for the benefit of the estate of R. H. Barfield is right, and should be affirmed, for the further reason that there was testimony from which the jury might have found that the sale was made to R. H. Barfield, and, such being the case, his representative for the benefit of the estate would be entitled under the pleadings and proof to a judgment based upon the doctrine of implied warranty.

In Wiedeman v. Keller, 171 Ill. 93, 49 N. E. 210, it is said:

"In an ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a re

That the suffering and death of R. H. Barfield "was caused by said wrongful act of the defendant in selling for use as human food said flour, which was impure and unwholesome and contained poison as herein before set out, and of the presence of which poison the defend-tail dealer for immediate consumption, the conant knew, or should have known in the exercise of that care required of him by law."

sequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the The complaint as to the charge of negll-consumer that public safety demands that there gence was the same as that in the case of S. should be an implied warranty on the part of

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