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poison containing arsenic be placed in proximiHEINEMANN V. BARFIELD. (No. 194.) ty to the flour bin, held for the jury in action

by a purchaser's wife. (Supreme Court of Arkansas. Oct. 28, 1918.)

8. EVIDENCE 553(4) HYPOTHETICAL 1. Food On 25SALE OF POISONED FLOUR

QUESTION. CAUSE OF ACTION FOR NEGLIGENCE.

In action against provision dealer by cusWhere a provision dealer sold plaintiff's tomer's wife, poisoned by arsenic in flour purhusband flour, which, in the exercise of rea-chased, hypothetical question to medical witsonable care, he should have known contained ness, embracing all undisputed facts essential poison, whereby plaintiff was poisoned, and suf- to issue, as to whether injuries were produced fered physical and mental pain, plaintiff had a by arsenical poison, held proper, over objection cause of action against the dealer for negligence. there was no testimony tending to prove plain

tiff, prior to injury, was healthy. 2. PLEADING C9CONCLUSION FROM FACTS ALLEGED-NEGLIGENCE.

Appeal from Circuit Court, Jackson CounWhere a complaint alleges facts which, ifty; D. H. Coleman, Judge. proved, would show that the acts complained of were negligent or wrongful, it is unnecessary

Action by Pattie Barfield against S. Heine for the pleader so to designate them.

mann. From judgment for plaintiff, defend3. PLEADING O 8(21)-CONCLUSION.

ant appeals. Affirmed. In suit against a provision dealer for negli

See, also, 207 S. W. 62. gently selling poisoned flour, allegation that The appellee brought this action against the he sold flour which he knew, or should have appellant. She alleged that appellant was known, contained arsenic, which sale resulted in a merchant in Newport, Ark.; that he was the poisoning of plaintiff, was the statement of a fact, and not merely a legal conclusion.

a dealer in flour and other foodstuffs; that

on or about December 11, 1916, the appellant 4. TRIAL 349(3)-INSTRUCTIONS IN FORM sold to R. H. Barfield, the husband of the OF INTERROGATORIES.

appellee, a sack of four which contained In action against provision dealer for negli- arsenic, which the appellant knew was to be gence in sale of poisoned flour to plaintiff's hus- used by the family of R. H. Barfield, of which band, whereby plaintiff was poisoned, instructions in form of interrogatories, though peculiar appellee was a member; that the appellant and unusual, stating law correctly, and contain: knew, or in the exercise of that degree of ing no reversible error, held proper.

care required of him should have known,

that the flour was impure, unwholesome, and 5. Food Cwm 25—NEGLIGENCE IN SALE--LIA contained arsenic; that on the 12th of DeBILITY—“ACTIONABLE NEGLIGENCE."

cember, 1916, appellee ate some of the flour Dealers furnishing food for human consump- which had been prepared and cooked for tion are bound to exercise care respecting fitness of articles, and are liable in damages if, by their food, and because of the poisonous substance negligence, unwholesome provisions are sold in the flour she was caused to be violently and persons made ill thereby, actionable negli- ill, and to suffer great physical and mental gence being failure to exercise care of man of pain and anguish, and that she continues to ordinary prudence to prevent damage to cus- so suffer; that her illness, pain, and suffertomers from articles bought for immediate use. ings were caused by the wrongful act of the

[Ed. Note.-For other definitions, see Words appellant in so selling, for use as human and Phrases, First and Second Series, Actiona- food, the flour which contained poison as beble Negligence.)

fore 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 ex

The appellant moved to require the appeltends to any person who might reasonably be expected to suffer injury, being based on "negli- lee to make her complaint more definite (1) gence," failure to exercise ordinary care

by "setting out what degree of care the law prevent injury reasonably to be anticipated.

requires of one who deals in food for human [Ed. Note.-For other definitions, see Words consumption”; (2) by "setting out what and Phrases, First and Second Series, Negli- wrongful act upon the part of the defendant gence.]

the plaintiff relies.” The motion to make 7. FOOD 25 NEGLIGENCE IN SALE OF

more specific was overruled; whereupon apPOISONED FLOUR-QUESTION FOR JURY,

pellant filed a general demurrer, which was Whether arsenic was mingled with a provi- also overruled; and the appellant answered, sion dealer's flour, which he subsequently solde specifically denying the allegations of the comthrough his negligence in directing that rat plaint, and alleging that, if the plaintiff was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to

injured from eating unwholesome food, it A portion of the flour left on the bread was the result of her own negligence; that board after mixing the dough for the bisR. H. Barfield had equal opportunity with cuits was preserved in an envelope, and dethe appellant for determining whether the livered to a chemist, whose analysis showed four contained poisonous matter at the time that it contained 35.3 per cent of arsenic. of the purchase. Appellant further alleged The sack of flour from which the biscuits that there was no privity of contract between were made was taken by one of the doctors, the appellee and the appellant in the pur- who found a large quantity of arsenic in the chase of the flour, and that the appellee sample that came off the top of the sack, assumed the risk of using the flour if the but found none in that which came out of same was unwholesome as alleged,

the middle or the bottom of the sack. BeThe facts are substantially as follows: R. fore beginning to use from the sack of flour H. Barfield was a colored man living on in question, appellee had set the same unappellant's place as a tenant. Appellant was emptied in her flour barrel. After the oca merchant, and furnished Barfield his sup-currence the flour was emptied into the barplies. Appellee was the wife of R. H. Bar- rel, and was thereafter taken out of the barfield. Living in the house with Barfield and rel by Dr. Stevens and put in a sack. 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 212 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 fiour 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 It was shown that Albert Lichtig, an embin lined with tin. It had a front door which ployé of the appellant who had charge of let down with hinges and a screen for venti. the grocery department, put out rat poison lation. The flour was kept in sacks. There all around the four bin. He went out and were three sacks that had been torn, and the bought some cheese and took the poison and flour in them had been put into new sacks fixed it on the cheese. The witness who oband these sacks were tied with a string like served this did not know whether he put an ordinary bag. The flour in question was the poison in a hole in the cheese or just in one of the sacks that had been so refilled. sprinkled it on. Witness was not instructed There was some loose meal and flour in the to take up the poison the next morning after bin the day that the sacks were refilled, which it was put out. Appellant had dogs that was cleaned out and thrown into the refuse were in the store very often. Something like can and burned on the same day that the a week before the 12th of December, 1916, flour in question was sold.

Lichtig cleaned up the bin, taking the flour Appellee testified that the sack in question from the floor of the bin and putting it in from which she took the flour was not a full one of the sacks. sack, and appeared to have been opened and There was testimony on behalf of the ap

There was a small hole in the pellant tending to show that the loose flour side of the sack. She took the flour out of that was in the bin after resacking was the top of the sack with her hand, rolled scraped up and put in the refuse can and the dough on the board which she always burned; that one of these sacks of flour was used, and used the same pan that she had sold to the negro porter, one was sold and been using before. Appellee and her hus- sent to a family living on a boat, and the band, Foreman Adkisson and his wife, and other to Adkisson or Barfield; that none of appellee's father were all that were at the the porter's family, nor the family on the table. Soon after eating breakfast they all boat, suffered any injury from eating the became sick. A physician was sent for, and flour; that the Rough-on-Rats was purchased he arrived about 9 o'clock. He found R. H. by appellant's employé on October 15th, and Barfield on the floor very sick, vomiting, and was put in a hole made in cheese, and the his bowels moving involuntarily. The condi- cheese placed on cardboards set about on tion of the others was the same, but not so the floor of the store for the purpose of killing severe. He sent for three other physicians. rats; that this was done for a period of about They diagnosed the symptoms as having been 14 nights from the date of the purchase of caused by acute arsenic poisoning.

the rat poison; that the same cheese and

tied up.

the same poison was used each night; that, senic to get in the flour, or were guilty of neg. appellant personally knew nothing of the ligence in knowing, or in failing to exercise such sale of the flour, nor of any poisonous sub- care that an ordinarily prudent person should stance in the flour, if there was any at the i exercise to know, that the arsenic was in the time of the sale; that the sack was tied flour? Your answer is 'Yes' or 'No.' with a string; that pure arsenic was found evidence that the plaintiff, Pattie Barfield, ate

“No. 4. Do you find by a preponderance of the in the sample of four sent to the chemist; bread made of said flour, and was caused therethat it was arsenous acid, odorless and col- by to be sick, violently ill, and suffered any inorless; that Rough-on-Rats had both odor juries alleged in the complaint? Your answer and color; that the flour claimed to have is 'Yes' or 'No.' been purchased by Barfield was taken from "No. 5. If your answer to question No. 1 is the store to his house on the 9th day of De- 'No,' your verdict should be for the defendant. cember, and set in his kitchen on the floor

"No. 6. If your answer to all the questions until Tuesday, when the contents were poured Nos. 1, 2, 3, and 4 is 'Yes, your verdict should

be for the plaintiff. into a barrel in which flour was kept; that

No. 7. If your answer to either of the quessome of the old flour was still in the barrel, tions Nos. 1, 2, 3, or 4 is 'No,' your verdict and that no meal was found mixed with any should be for the defendant." of the flour in any of the sacks.

Appellant himself testified as follows: The Instructions Nos. 8 and 9 told the jury, in flour was kept in a bin underneath the gro-effect, that it was the duty of a dealer in cery shelf. The bin was lined on the in- food for human consumption to exercise orside with tin, with a small trapdoor over the dinary care—that is, such care as an ordi. top, 12 or 14 inches wide. The center of it narily prudent person would exercise under was screened with wire, and the balance like conditions—to know that the food sold nailed up with zinc, with two boards in by him was wholesome and fit for consumpfront underneath the screen door. It was tion. Other instructions were given on the built nearly two years ago. The back of the credibility of witnesses, the measure of dam. bin was made of shiplap with zinc covering; ages, the burden of proof, and as to the form back of the shiplap was made of brick. We of the verdict. kept the flour sacked up in the bin. About The appellant prayed the court to insix or seven weeks before the poisoning Istruct the jury to return a verdict in his sent Alex Franks after some rat poison, and favor, which the court refused. The appelexplained to Albert how to mix it and lay lant presented also other prayers for instrucit out. I instructed him to put some Rough- tions, which the court refused. The jury reon-Rats in one or two eggs and mix it up, turned a verdict in favor of the appellee in and put it on top of the cheese, and lay it on the sum of $3,000. This appeal is from a a little piece of pasteboard. He got every judgment rendered in her favor for such sum. thing ready, and I told him to put it in the Other facts are stated in the opinion. drawer of the desk and then put it out at

Jno. W. Newman, of Little Rock, and S. D. night. I have dogs at the store, and when the store was opened I instructed my clerks Campbell and Gustave Jones, both of New

port, for appellant. to pick up these pieces so the dogs would

Ira J. Mack, of Newport, for appellee. not get hold of them. These pieces of cheese were put on the hat shelves just west of the bin towards the door; about 15 or 20 feet WOOD, J. (after stating the facts as from the bin were the rat holes.

above). [1, 2] 1. The complaint, in subThere was testimony tending to prove that stance, alleged that the appellant was a mer. Barfield himself did not buy any flour on chant dealing in flour and other provisions; the 9th of December. There was also tes that he sold to the husband of appellee flour timony tending to show that dough mixed of which he knew at the time, or by the exercise flour, lard, salt, and soda, with 22 per cent. of that degree of care which the law required of Rough-on-Rats in it, made a blue dough. of him, should have known contained arsenic, This dough was exhibited to the jury. a poisonous substance; that, by reason of

The court, over the objection of the appel such wrongful act on the part of the appellant, gave to the jury instructions in the lant, the appellee was poisoned, and suffered form of interrogatories, as follows:

great physical and mental pain, resulting in "No. 1. Do you find by a preponderance of her damage. The complaint was not skill. the evidence that R. H. Barfield, and not Fore-fully drawn, yet when taken as a whole it man Adkisson, bought the flour at Heinemann's stated facts sufficient to constitute a cause of store? Your answer will be 'Yes' or 'No.' action against appellant for the negligent

"No. 2. Do you find by a preponderance of the sale of flour containing poison, which resultevidence that arsenic was in the flour at the ed in injury to the appellee. Where a comtime it was sold at Heinemann's store? Your plaint alleges facts which if proved would answer will be 'Yes' or 'No.'

"No. 3. If you answer question No. 2 'Yes' show that the acts complained of were neglido you find by a preponderance of the evidence gent or wrongful, it is unnecessary for the that Heinemann, or any of his employés at the pleader to so designate them. store, were guilty of negligence in allowing ar- (3) Alleging that a dealer sold flour which

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he knew at the time, or should have known, , gence; that is, a failure to exercise ordinary contained arsenic, which sale resulted in the care to prevent injury to those who the seller poisoning of another, is the statement of a of the unwholesome article of food might reafact, and not merely a legal conclusion. In sonably anticipate would be injured. Ezra Fordyce v. Nix, 58 Ark. 136, 23 S. W. 967, Craft v. Parker, Webb & Co., 96 Mich. 245, we said:

55 N. W. 812, 21 L. R. A. 139. See, also, “Under the reformed procedure courts regard Colyar v. Little Rock Bottling Works, 114 the substance rather than the form.

Ark. 140, 146, 169 S. W. 810. Instructions "The character of the action must be determined No. 8 and No. 9, given by the court, correctly by the nature of the grievances rather than the declared the law in conformity with the rules form.''

above announced.

[7] 3. Appellant contends that the evidence See, also, Crowder y. Fordyce Lumber Co., on the issue of negligence is not sufficient to 93 Ark. 393, 394, 125 S. W. 417; C. J. vol. 1, sustain the verdict. The testimony bearing

on this issue is set forth in the statement, The complaint tendered an issue which, be- and it could serve no useful purpose to dising denied by the answer, made the issue cuss it in detail. There was decided concomplete and called for the proof. The court Alict in the evidence, but it cannot be said that did not err in overruling the demurrer and the testimony of the witnesses on behalf of the motion to make more specific.

the appellee, tending to show negligence on [4] 2. Under the instructions of the court, the part of the appellant, was contrary to the only issue presented to the jury was the physical facts. The jury were warrantwhether or not the appellant was guilty of ed in finding from this testimony that the apnegligence in selling flour that contained ar-pellant caused “Rough-on-Rats” containing senic. While the manner of presenting this arsenic in such proportions as to constitute issue under instructions in the form of in

a deadly poison to be placed around and in terrogatories was peculiar and unusual, yet, such close proximity to the flour bin that after carefully considering these instructions, such poison was carried by mice or rats to we conclude they correctly state the law and the flour in the bin; that such flour was contained no reversible error. The inter- sold to appellee's husband, which sale caused rogatories were clear and concise, and the the injury of which she complained. jury could not have been misled into giving

The undisputed evidence shows that the an erroneous answer or one that they did not appellee was injured by arsenical poison. intend.

There was testimony tending to prove that [5] The duty which a retail seller of food flour taken from the same sack out of which for immediate consumption owes to his cus- the flour was used for making the biscuits of tomers is succinctly and correctly stated in which appellee ate contained arsenic in deadRuling Case Law as follows:

ly quantities; that a sample of the flour re"Persons who engage in the business of fur- maining on the bread board after appellee had nishing food for consumption by man are bound mixed the dough for the biscuits also conto exercise care and prudence respecting the fit- tained arsenic. Under the testimony adducness of the articles furnished, and they may be ed, it was an issue for the jury to determine held liable in damages if, by reason of any nego whether this poison was communicated to ligence on their part, corrupt or unwholesome provisions are sold and persons are made ill the flour through the negligence of the appelthereby.” 11 R. C. L. 1118, and cases cited in lant in directing the rat poison to be placed note.

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 them ed 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 essendegligent 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 night 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 sickness, suffering, and death. There was an and house work,

allegation that the deceased contributed to The hypothetical question was well with the support of said widow and child, and by in the rule announced in Taylor v. McClin- his death they have been deprived of his tock, 87 Ark. 243, 294, 112 S. W. 405; Ford companionship and care and of his support. v. Ford, 100 Ark. 518, 524, 140 S. W. 993; | There was a prayer for damages for the benWilliams v. Fulkes, 103 Ark. 196, 146 S. W. efit of the estate in the sum of $10,000, and 480; Newport Mfg. Co. v. Alton, 130 Ark. also for the benefit of the widow and child 542, 198 S. W. 120.

in the sum of $10,000. The record presents no reversible errors, There was a motion to make the complaint and the judgment is therefore affirmed. more specific and a demurrer to the com

plaint, 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 HEINEMANN V. BARFIELD. (No. 197.) issue of negligence are the same as those

developed by the evidence in the case of S. (Supreme Court of Arkansas. . Oct. 28, 1918.) Heinemann v. Pattie Barfield, and the inSALES 274 – WARRANTY OF FITNESS OF structions are the same, except that in the FOOD FOR CONSUMPTION.

instant case the court authorized the jury, Where flour was sold by retail dealer to in case they found for the plaintiff, to reconsumer for immediate use, there was implied turn a verdict in separate amounts for the warranty flour was fit for food, and, where it benefit of the estate of the deceased, R. H. contained arsenic, which, when served in bread by his wife, poisoned the purchaser, the dealer Barfield, and also for the benefit of his was liable to his estate as for breach of war

widow and next of kin. The jury returned ranty.

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.

and from a judgment rendered according to

the verdict is this appeal. Suit by Pattie Barfield, as administratrix

The ruling of the court was correct in of the estate of R. H. Barfield, against S.

overruling the motion to make the complaint Heinemann. From judgment for plaintiff,

more specific and the demurrer to the comdefendant appeals. Affirmed.

plaint. The complaint states a cause of acJno. W. Newman, of Little Rock, and S. D. tion, as was held in the case of S. Heinemann Campbell and Gustave Jones, both of New- v. Pattie Barfield. The facts on the issue of port, for appellant.

negligence and the instructions to the jury Ira J. Mack, of Newport, for appellee. on that issue were the same as those in the

case of Heinemann v. Pattie Barfield, and WOOD, J. This was a suit by Pattie Bar- this case is ruled by that on the issue of field, as administratrix of the estate of R. H. negligence. Barfield, deceased, for the benefit of herself,

The judgment in favor of the appellee for as widow, and Lusky Barfield, the next of the benefit of the estate of R. H. Barfield kin, of R. H. Barfield. The complaint alleged is right, and should be afirmed, for the furthat she had been duly appointed administra- ther reason that there was testimony from trix of the estate of R. H. Barfield; that she which the jury might have found that the was the widow of R. H. Barfield, and that sale was made to R. H. Barfield, and, such Lusky Barfield was their minor child; that being the case, his representative for the R. H. Barfield, her husband, was made sick benefit of the estate would be entitled under and afterwards died from the effects of poi. the pleadings and proof to a judgment based son caused by eating bread made from the flour which was sold to him by the appel- upon the doctrine of implied warranty.

In Wiedeman v. Keller, 171 Ill. 93, 49 N. lant. The complaint alleged:

E. 210, it is said: That the suffering and death of R. H. Barfield “was caused by said wrongful act of the "In an ordinary sale of goods the rule of defendant in selling for use as human food caveat emptor applies, unless the purchaser exsaid flour, which was impure and unwholesome acts of the vendor a warranty. Where, howand contained poison as hereinbefore set out, ever, articles of food are purchased from a reand of the presence of which poison the defend-tail dealer for immediate consumption, the conant knew, or should have known in the exercise sequences resulting from the purchase of an unof that care required of him by law."

sound 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. I should be an implied warranty on the part of

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