Opinion
Decided February 3, 1933.
Negligence — Sale of unwholesome food — Section 12760, General Code — Violation not proved by ptomaine poisoning after eating restaurant salad — Food not necessarily unwholesome because consumer became ill.
1. A violation of Section 12760, General Code, is not shown by proof that a customer had ptomaine poisoning after eating a salad at a restaurant.
2. An article of food is not necessarily unwholesome within the meaning of Section 12760, General Code, because one consuming it is made ill. It is only unwholesome when it has acquired such qualities as to cause normal persons in a normal condition to be rendered ill by its consumption.
ERROR: Court of Appeals for Cuyahoga county.
Messrs. Klein Diehm, for plaintiff in error.
Messrs. Bernon, Mulligan, Keeley Le Fever, for defendant in error.
Mary Clark in a petition against the Mills Restaurant Company alleged that on September 4, 1928, she purchased and ate at the defendant's restaurant a lunch consisting of salmon salad, hard rolls and coffee, that said food, though the fact was unknown to her, was unwholesome and unfit for human consumption, and that she was poisoned thereby to her serious injury. She pleaded that the defendant was negligent in three respects: (1) In serving unwholesome food unfit for consumption in violation of Section 12760, General Code; (2) in failing to discover that said food was unwholesome before serving the same; (3) in failing to inspect said food before service. The defendant answered by a general denial. Trial was had resulting in a verdict and judgment for plaintiff. This proceeding is to reverse that judgment.
The evidence showed that on the day mentioned the plaintiff did purchase of the defendant the lunch described in the petition; that on the preceding evening she dined on veal; that at breakfast the plaintiff had drunk only a cup of coffee; that she was in good health; that within an hour and a half or two hours after lunch she became ill with cramps and nausea; that an hour or two later she collapsed; that she took emetics which were followed by vomiting and severe distresses. On the following day her mouth and lips were blistered, and late in the afternoon of September 5 a physician was called who diagnosed the case as one of ptomaine poisoning. This physician testified that ptomaine poisoning was due to poison proceeding from decomposed foods, and that if Mrs. Clark had eaten salmon, as she testified, he would attribute her condition to the salmon.
These are the salient facts brought out by the plaintiff. On these facts she claimed the right to go to the jury and to recover. Her claim was that these facts made a case of negligence per se against the defendant company, because they tended to show a violation by defendant of the provisions of Section 12760, General Code, reading as follows: "Whoever sells, offers for sale or has in possession with intent to sell, diseased, corrupted, adulterated or unwholesome provisions without making the condition thereof known to the buyer, shall be fined," etc.
This section has been held to apply to a sale of food by a restaurant keeper. Clark Restaurant Co. v. Simmons, 29 Ohio App. 220, 163 N.E. 210. That it is not necessary that the defendant be shown to have knowledge of the condition of the food, and that a violation of the section is negligence per se, were questions settled in Portage Markets Co. v. George, 111 Ohio St. 775, 146 N.E. 283.
The term "unwholesome" is sometimes used as an equivalent for unhealthful. It cannot be given so broad an interpretation in the section quoted. The associated words and sound reason require that it be construed to apply only to foods that have an added or acquired character of an unwholesome nature; that have become unwholesome to people generally, not to a particular individual, and to people under normal and not under abnormal conditions. Mushrooms are normally unwholesome to some persons; iced tea is unwholesome for normal persons under abnormal conditions; but neither mushrooms nor iced tea are essentially unwholesome foods.
For the plaintiff to make a case under the statute she was required to prove something more than that she bought and ate the salmon and following that became ill. It is not sufficient if she go even further and show that her illness was due to the salad. She must also show that the salmon was unwholesome in the sense that it was not in its natural state, but had become so tainted that normal persons generally, in a normal condition, would have been adversely affected by its use. The evidence in this case did not meet these requirements nor tend to do so. It failed fundamentally in not showing that the food was unwholesome, as above defined. Let us assume the fact to be proven that the plaintiff had ptomaine poisoning. The contents of her stomach were not analyzed, and no fact, therefore, was developed as to the cause of her disturbance. It was shown, however, that the salmon had been eaten, and it was competent for the jury to infer that the salmon had caused the illness. No further inference could be drawn, however, from this inference. Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204, 140 N.E. 634. The further element of the case necessary to recover, to wit, that when sold the salmon had acquired an unwholesomeness that rendered it unfit for consumption by normal people, was wholly unsupported.
The defendant was entitled to a directed verdict at the conclusion of the plaintiff's testimony. The error in overruling it was waived by proceeding to a defense upon the facts without a renewal of the motion at the conclusion of all the testimony. Youngstown Suburban Ry. Co. v. Faulk, 114 Ohio St. 572, 151 N.E. 747.
The judgment is reversed as being contrary to law, and the case is remanded to the court of common pleas for further proceedings according to law.
Judgment reversed.
MIDDLETON and BLOSSER, JJ., concur.
Judges MAUCK, MIDDLETON and BLOSSER, of the Fourth Appellate District, sitting by designation in the Eighth Appellate District.