McKenzie v. Peoples Baking Company , 205 S.C. 149 ( 1944 )

July 26, 1944. This is an appeal from an order of nonsuit which was granted at the conclusion of plaintiff's testimony in the trial of the case in the Civil Court of Florence, in May, 1943, and the similar refusal of a motion for a new trial. The record contains only the order of the trial Judge thereabout and the exceptions. From the former it is gleaned that plaintiff purchased from a Lake City retailer a five-cent cake which was manufactured and sold by the defendant, and that when attempting to eat it, plaintiff's gums were cut by a sharp piece of steel which was embedded in the cake, resulting in pain and suffering from mouth injuries for which she sought damages.

Confirming nonsuit and refusing plaintiff's motion for a new trial, the Court filed a formal order, mentioned above, which latter recited that there was no evidence of common law negligence in the manufacture of the cake and that the Pure Food Statute (section 5128 et seq. of the 1942 Code) is not applicable because, it being penal in its nature and in derogation of the common law, it should be strictly construed and that the piece of steel was not an ingredient of the cake for it was not a component part; and it was held that the Legislature by its enactment, did not intend the statute "to have any scope beyond a very strict meaning of its terms." The only South Carolina decision cited for the holding wasDelk v. Liggett Myers Tobacco Co., 180 S.C. 436,186 S.E., 383, which is later herein distinguished.

There was error in applying a strict construction of the law which was a departure from the former decisions of this Court upon the subject, some involving food and some involving drinks. See the collation of the cases in 16 S.E. Dig., Food, p. 203 et seq., and Pocket Part. The statute has a criminal side and if the defendant were resisting a prosecution for its violation, strict construction might be in order, the latter now unnecessary to decide. But careful reading of the rather lengthy law is convincing that its primary intention was the protection of the people of the State from impure and adulterated food, drug and drink, soft and strong. Such statutes are given generally in civil actions a fair and reasonable interpretation, perhaps properly designated "liberal," in order to effectuate the purpose of protecting the public from imposition, fraud and negligence of food, drug and drink manufacturers, processors and vendors. 22 Am. Jur., 819, 36 C.J.S., Food, § 10, p. 1064.

It is by no means new in our law to hold that statutes of a double aspect (penal and remedial) may be given a liberal construction in the civil courts when applied remedially, and yet be strictly construed in the criminal courts, when one is prosecuted in the latter for a violation. Such was done in Newsom v. F.W. Poe Mfg. Co.,102 S.C. 77, 86 S.E., 195, 198, where it was said: "A statute may be both remedial and penal. In construing such a statute, the courts should construe that position (portion?) that applies to the enforcement of the remedy liberally. In the enforcement of the penalty, a strict construction should be given. The remedy must not be destroyed by the penalty, if practicable. We are now on the civil side of the court." And the following well-phrased quotation is from the opinion inTrammell v. Victor Mfg. Co., 102 S.C. 483, 86 S.E., 1057,1058: "We should not overlook the fact that the statute is remedial, as well as penal. In so far as it is remedial, it should be construed liberally, to suppress the mischief it was designed to remedy." See also the enlightening concurring opinion of former Chief Justice Blease in Statev. Firemen's Ins. Co., 164 S.C. 313, 162 S.E., 334.

A strict interpretation of the Pure Food Statute was indicated in our decision of Delk v. Liggett Myers TobaccoCo., 180 S.C. 436, 186 S.E., 383, supra (the sole South Carolina authority cited by the trial Court), but there it was held that chewing tobacco, involved in that case, was not food or drink, so does not come within the statute. For that reason the case is quite distinguishable and should be differentiated from our decisions construing and applying the statute for the facts require it, as was said by this Court in the case of Irick, infra.

Our case of Irick v. Peoples Baking Co., 187 S.C. 238,196 S.E., 887, just referred to, is a plain and pointed precedent for the present decision. It held that evidence of violation of the Pure Food Statute implies negligence and requires submission to the jury of the issue thereby raised, and that this is true even if the testimony negatives negligence in the manufacture of the food. It involved particles of glass in a cake and there is no discernible difference between such and the steel here alleged. That violation of the statute is negligence per se was firmly established, if any doubt existed before, by Gantt v. Columbia Coca-ColaBottling Co., 193 S.C. 51, 7 S.E.2d 641, 127 A.L.R., 1185, which contains an excellent review of the prior cases. See also the subsequent similar decision of Hobbs v. CarolinaCoca-Cola Bottling Co., 194 S.C. 543,10 S.E.2d 25.

Section 5128, volume 3, p. 249, of the Code of 1942 (our Pure Food Statute), provides that an article of food shall be deemed to be adulterated (b) (1) "if any substance or substances has or have been mixed with it so as to reduce or lower or injuriously affect its quality or strength," and again (7) "if it contains any added poisonous ingredient, or any ingredient which may render such article injurious to the health of the person consuming * * *."

The steel here was a substance mixed with the cake, a food, which "reduced or lowered or injuriously affected its quality," thus in literal violation of (1) above. Any other construction of the language would be a strained one, and would defeat the manifest intention of the Legislature in the enactment of the statute, which plainly was, as has been said, for the protection of the consumer.

Again, (7) is also applicable to the allegations in the instant case; the steel was an ingredient which rendered the cake "injurious to the health of the person consuming." The lower Court held that the steel was not an "ingredient" as that term is used in this subsection (7), and that the latter contemplates only an ingredient in the sense of a component or intended part of the cake. But such contention might be made concerning some harmful drug accidentally or unintentionally added to the usual components of cake, and yet the statute forbids the addition to a food of a "poisonous ingredient." A usual and intended ingredient is not apt to be "poisonous" or "injurious to health," so the contended construction would result in the practical elimination of all of this language from the Act, which cannot be said to be within a fair or reasonable interpretation of the language of the Legislature.

While the ordinary dictionary definition of "ingredient" is that which enters into a compound, or is a component part of any combination or mixture, yet its literal meaning, derived from the Latin original is "to go into, to enter." And the definition of "component" found in Webster's New International Dictionary, Second Edition, Unabridged, 1939, contains the following helpful reference to the meaning: "Ingredients primarily suggests a mixture (such as a drink, a medicine) rather than a compound; as, ``The ingredients of our poisoned chalice' (Shak.). Similarly, in its figurative uses it suggests rather something which enters (see etym.) into a composition than an essential part; as, ``A little grain of romance is no ill ingredient to preserve and exalt the dignity of human nature' (Swift)."

That the Legislature did not intend "ingredient" in the restricted meaning found by the lower Court is seen by reference to subsection (3) of sec. 5128 (referring to food or drink) where that limited meaning is expressed by use of the word "constituent"; and in (c), relating to liquors but a part of the same section, where the words "substance" and "ingredient" are used interchangeably: "If it contains any substance or ingredient not normal or healthful," etc. It will hardly be said that bits of steel in "hard liquor" violate the pure food law but not so in the case of cake. But that would be the result of the lower Court's construction of an "ingredient" of a food to mean, in effect, a "constituent."

Pertinent also in this connection is the use of the word "added" in subsec. (7); — "any added poisonous ingredient," etc., implies clearly that the meaning of "ingredient" is not limited to "component part" or "constituent." See subsec. 3. The objectionable ingredient referred to is one "added," therefore not a component part or constituent, but yet an ingredient. The meaning intended clearly is a substance included in the product — here, steel in a cake — which is injurious.

The meaning of subsec. (7), just referred to, is clarified by amplification in sec. 5128-27(2), fifth, (III 1942 Code 261), as follows: "If it (food, here cake — interpolated) contain any added poisonous or other added deleterious ingredient, which may render such article injurious to health," it is adulterated, expressly under this section of the law. It was this subsection which was applied in, and controlled the decision of, the Gantt case, supra, but it received scant, if any, attention in the trial of this case. Bluestone, there, was no more an ingredient of the bottled drink than was the piece of steel of the cake here.

The inevitable conclusion form the foregoing analysis of the manifold provisions of the statute is that the inclusion of a harmful foreign substance in cake prepared for human consumption (food) is a violation of our Pure Food Statute and negligence per se, and that Irick's case, supra, was correctly decided and should be adhered to, and it is. Nonsuit should not have been granted upon a contrary conclusion, as it was. Assuming that the facts in evidence, other than that involved in the appeal, warranted submission of the case to the jury (and the case was argued and heard upon such assumption), it should have been so submitted.

Reversed and remanded for a new trial.

MESSRS. ASSOCIATE JUSTICES FISHBURNE and OXNER concur.