McSpedon v. Kunz , 271 N.Y. 131 ( 1936 )

Elizabeth McSpedon, the plaintiff, lived with her husband and two children at Hastings in Westchester county. They were humble folk and she had to do the cooking and housework.

For years she had dealt with the butcher in the neighborhood named Albert Kunz. Kunz bought his meat from Rubin Brothers who in turn purchased it from Armour Company of Chicago. On the 20th day of October, 1931, the plaintiff purchased from Kunz four pork chops which she fried on a gas stove. They were about half an inch thick, and she cooked them in a big frying pan until she thought they were well done. After eating the pork chops she was poisoned and developed a disease known as trichinosis. Trichina, or trichina spiralis, is a worm, a parasite found in pork. It is about one and four-tenths of a millimeter long, the female being larger and about three or four millimeters long. Trichinae are found in rats, pigs, dogs, polecats and monkeys. Two or three per cent of all fresh pork, or pigs cut up for consumption, are infected with these little parasites. They render food or the pig meat unwholesome, causing the disease known as trichinosis. Trichinae cannot be seen with the naked eye but, as they infest the muscles, can readily be discovered and seen with the microscope.

In Rinaldi v. Mohican Co. (decided in this court in 1918,225 N.Y. 70) the veterinary of the State Department of Agriculture, and a graduate of Cornell Veterinary College, Eugene J. Sullivan, testified to the inspection which could be made to discover trichinae and which at that time was made by government inspectors: "They have a sort of an instrument with a hook on the end of it, something like a fish hook, they go around and stick that in several muscles and bring out parts of muscle and treat it with caustic potash and put it under the microscope and examine it to see if they can find parasites or trichinae, that is the examination for trichinae."

This method of discovering trichinae is known to all the slaughterers and packers. In this case now before us the evidence shows this well-known infection of two or three per cent of fresh pork. Armour Company knew it. The company also knew the method to discover it as well as the method to kill or eradicate the parasite.

If these pork chops had been cooked to 137 degrees Fahrenheit, the heat would have destroyed the little worms, but the chops that Mrs. McSpedon was cooking on the gas stove would have had to be cooked for twenty minutes or more at this degree of heat until the heat reached the center of the chops. This housewife testified that she knew nothing about the requisite degree of heat or about trichinae; all she knew was that the chops should be well cooked, and she fried them in her pan until she supposed they were well cooked. What would any ordinary housewife do? She buys meat at reputable butchers, supposing it fit to eat after being cooked in the customary way and manner. The expert in this case testified that he did not know these things until he had been taught them in the professional school after he had graduated from college. Of course Armour Company could not cook the chops. They were shipped and packed for sale to retail butchers. Armour could, however, freeze the chops or the fresh pork to five degrees above zero and kill all these little worms or trichinae. The process was well known to the trade and Armour Company. It in no way injured the edible quality of the pork; in fact the defendant's manager states that some of the pork was treated in this way. As to freezing and the effect of it upon the meat, the testimony shows that after killing, all meat is stored in a refrigerator at a temperature of thirty-two degrees, which is freezing point.

William J. Grace, the superintendent of Armour's plant in Jersey City, testified that there was no inspection at Armour's plant for trichinae. They let the meat go out to the public without making any effort whatever to discover its infection by this parasite. He also said that if the fresh pork were placed in refrigeration at five degrees above zero for a period of twenty days all the parasites would be killed. "Q. Now, I ask you, does Armour Company do that with their pork? A. Some of it.

"Q. They don't do it with all of it? A. No.

"Q. What is the government requirement? A. * * * Pork that is to be eaten by the consumer without being cooked must be subjected to certain rules and regulations, one of which is it must be kept under refrigeration for twenty days at a temperature of 5 degrees or lower. * * * What I meant to say is pork eaten without further processing, for instance, bologna.

"Q. Pork chops, that is supposed to be cooked before eating? A. That is correct. * * * Pork chops are cooked by the housewife or by somebody home before they are eaten."

He further testified that if pork is frozen at a temperature of five degrees above zero it does not change the palatability of the pork. On recross-examination, regarding pork chops he gave this testimony:

"Q. You say, pork chops are not so frozen, is that right? A. Well, at times they are, but not for the purpose of destroying trichinae, not under governmental rules. The Government don't require pork chops to be frozen."

The reason for referring to this testimony of the superintendent is to show that trichinae can be destroyed by a method well known to Armour Company and which is used in treating some of the pork chops which it sells; that the company sends this fresh pork out to the public without any notice that it has not been treated or frozen to the destroying point, or any caution to cook the meat to above 137 degrees Fahrenheit and to cook it long enough to carry this heat through the center of the meat. This requisite of thorough heating and the nature of trichinae may seem very simple things to us and to experts who are dealing with these matters daily, but there are many people in this country who know nothing about trichinosis or the danger lurking in meats or the requisite heating point to destroy parasites, and who must rely and do rely upon the grocer and the butcher and such reputable concerns as Armour Company to sell them wholesome food.

This is the reason why we said in the Rinaldi case that on every such sale of food by a dealer for immediate human consumption there is an implied warranty of its wholesomeness. I quote the words of Judge ANDREWS in that case to show that we have heretofore squarely passed upon this question of implied warranty and the liability of the seller under just such circumstances as we have here:

"Such is the case before us. On December 16th, 1915, the plaintiff bought a loin of pork at a market owned by the defendant. The meat was infested with trichinae. She cooked and ate it and was made ill. The action was brought to recover for the resulting damages. It was not tried on any theory of negligence or fraud but upon that of implied warranty. The jury found a verdict for the plaintiff and the judgment has been affirmed in the Appellate Division. The plaintiff found no defect in the meat. The court submitted to the jury the question as to whether she could have found such a defect if she had used reasonable care. And finally the defendant insists strenuously that no such defect could have been discovered.

"There is no question but what such an action for damages caused by the breach of the implied warranty with regard to food may be maintained, at least by him to whom the warranty is made" (p. 75).

In fact, the Rinaldi case on the evidence was not as strong as this, for in that case the defendant proved that the government inspectors had examined the pork for trichinae and had given the pork their stamp of approval. In this case the defendant relies solely upon the fact that the Federal government has discontinued the examination for trichinae and deems that a sufficient answer to our statute regarding implied warranty. (Pers. Prop. Law; Cons. Laws, ch. 41, § 96.) If the government withdrew all its inspectors would the defendant be justified in selling any kind of impure or diseased meat?

We should not reverse or attempt to weaken the authority of ourRinaldi case. Judge ANDREWS' opinion had the approval of the entire court. Our statute of implied warranties was passed for the very purpose of protecting and safeguarding the life and health of people like Mrs. McSpedon and her little family, and especially should this protection be afforded when there is a well-known means for the detection of trichinae in pork and a well-known method of killing the parasite before the pork is put upon the market.

It may be appropriate at this point to state that the plaintiff brought action against Kunz, the butcher; Rubin Brothers, the middle man, and Armour Company, the slaughterer and packer. Judgment was given against Kunz for a small amount, with recovery over against Rubin Brothers, and recovery over by them against Armour Company. Rubin Brothers assigned their judgment to the plaintiff, which is the reason why she is the respondent in this court.

The judgment should be affirmed, with costs.