Friedman v. L. M. Beck & Galilee Fish Co. , 293 N.Y.S. 649 ( 1937 )

O’Malley, J.

The principal questions presented are (1) whether the question of contributory negligence, if any, of the plaintiff Beatrice Friedman, is involved; (2) if so, whether the evidence justified a finding against her on this issue; and (3) whether under the facts and circumstances of this case her husband, the plaintiff Jacob Friedman, had a cause of action for medical expenses, loss of consortium and services.

We are of the opinion that the evidence was sufficient to justify a finding that the plaintiff wife (hereinafter called plaintiff) had been rendered ill by consuming lobster pin-chased by another from the defendant Beck, who, in turn, had purchased it from the defendant fish company.

The complaint is replete with allegations of specific negligence. In addition it specifically charges a violation of “ the provisions of the Farm and Agricultural Law [Agriculture and Markets Law] of the State of New York, as amended.”

The complaint further alleged freedom from contributory negligence as required in the ordinary negligence action. Upon the trial, the plaintiffs claiming that contributory negligence was not involved in so far as a violation of the statute was concerned, the defendants themselves were permitted to plead contributory negligence.

The court in its decision was of opinion that plaintiff was not entitled to recover in ordinary negligence, stating that there was “ sufficient doubt as to her freedom from contributory negligence * * * to prevent her from recovering.” We deem this a holding that in so far as contributory negligence is involved, the court has found that she has been guilty thereof.

Plaintiff was the first guest to arrive at a luncheon and found her hostess dressing. A maid had opened a can of lobster and informed her employer in the presence of the plaintiff that she did not like the smell of it. At the request of her hostess plaintiff went into the kitchen and examined the lobster in the can. She tasted it once, and did not like its bitter, metallic taste. The first piece was about an inch long. She said she chewed and swallowed part of it. She took another piece about three-quarters of an inch in thickness and half an inch in length, and swallowed all of this piece, though again, it did not taste right.

She then proceeded to make a salad out of the lobster meat, and while so doing, she continued to taste the lobster four or five times, chewing and swallowing each piece. This took some ten or fifteen minutes.

She then informed her hostess that she did not think the salad should be used, and when a second can was procured she said “ it had a terrific odor, it was absolutely putrid.” Nevertheless, she took a taste of the second can “ to make sure it was even worse than the first.” She admitted that before all this had occurred she knew that a person might be poisoned by eating unwholesome seafood.

We think that this repeated tasting of the alleged contaminated lobster with forewarning, and knowledge of possible consequences, justified the finding that plaintiff herself had been guilty of such negligence as would preclude a recovery in the action as based on ordinary negligence.

She claims, further, that her negligence, if any, is not involved, in so far as she was permitted to recover upon a violation of the statute (Agriculture and Markets Law, § 198). This prohibits the sale of “ any article of food which is adulterated * * * within the meaning of this article.”

Section 199 of the same law provides that food shall be deemed adulterated

“ 5. If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health * * *.

“6. If it consists in whole or in part of a filthy) decomposed or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter.”

Assuming that plaintiff’s proof was otherwise sufficient to justify her recovery under the statute, we are of opinion that her own conduct precludes recovery.

It is true that it has been stated, that in actions based upon the statute “ no element of ordinary negligence is essential. Violation [of the statute] becomes actionable default ” (Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458, 465, 466); and it has been further stated that “ violation of duty under the Agriculture and Markets Law is said to be negligence as matter of law.” (Gimenez v. Great Atlantic & Pacific Tea Co., 264 N. Y. 390, 394.)

Assuming without conceding that contributory negligence in the general sense is not involved, it may not be contended that everyone injured by a violation of the statute would under all circumstances be entitled to recover. If a person has express notice that certain food has had poison “ added ” but still consumes it, no one would seriously urge that a recovery might be had. Volenti non fit injuria.

Moreover, the plaintiffs showed by their method of proof, that they deemed it necessary to prove a causal relation between the violation of the statute and the injuries, as in an ordinary negligence action. Since plaintiff wife was properly found to have been guilty of contributory negligence; and since we have concluded that she was guilty of such conduct (whether denominated contributory negligence or not) as should preclude a recovery for a violation of the statute, the judgment in her favor must be reversed and her complaint dismissed.

The right of plaintiff husband to bring his action is, therefore, not necessarily involved. As his wife may not recover he may not. However, it is clear that he had a right of action so far as ordinary negligence is concerned. It seems to have been held that he, likewise, would have a right of action predicated upon a violation of the statute. Following the language above quoted from Gimenez v. Great Atlantic & Pacific Tea Co. (supra), the court further stated: “ As such, the husband might recover for his loss due to his wife’s injuries ” (pp. 394, 395).

It follows, therefore, that so much of the judgment as is in favor of the defendants and against the plaintiff Jacob Friedman should be affirmed and the portion of the judgment in favor of the plaintiff Beatrice Friedman reversed, with costs of this appeal to the defendants, and the complaint dismissed, with costs.

Townley, Dore and Cohn, JJ., concur; Martin, P. J., dissents.