24 of 72 DOCUMENTS

LOVELLA REESE, Respondent, v. E. F. SMITH, Appellant

L. A. No. 16158
Supreme Court of California
9 Cal. 2d 324; 70 P.2d 933; 1937 Cal. LEXIS 399
July 27, 1937
PRIOR HISTORY: [***1] APPEAL from a judgment of the Superior Court of Los Angeles County. Clarence L.
Kincaid, Judge.
DISPOSITION: Reversed.
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff widow appealed an order of the District Court of Appeal (California), which
reversed a judgment for the widow in her suit against defendant meat company for negligence and breach of the implied
warranty of fitness.
OVERVIEW: A widow purchased pork sausages from the meat company and became ill. Police officers found
maggots on the remaining sausages in the widow's icebox, but the maggots were gone when health department
investigators seized the sausages on the next day. The widow filed suit for negligence and for breach of the implied
warranty that the meat was fit for consumption. The court affirmed the reversal of the judgment for the widow. The
evidence established that the meat company's business was sanitary, that the sausages were prepared and sold under
proper sanitary regulations and inspection, and that the sausages at issue were wholesome the day after the widow
became ill. The presence of maggots alone was not proof that the sausage was filthy, decomposed, or putrid. The court
concluded that the widow failed to prove that the sausages were not reasonably fit for human consumption and failed to
prove the meat company was negligent.
OUTCOME: The order reversing the judgment for the widow in her negligence and breach of implied warranty suit
was affirmed.
CORE TERMS: maggots, sausage, food, meat, putrid, human consumption, ice, unwholesome, wholesome,
decomposed, chicken, eating, reasonably fit, illness, pure, box, cause of action, consumption, filthy, animal, unfit, clean,
remainder, conflicting evidence, burden of proof, implied warranty, bones, pies, food poisoning, appearance
LexisNexis(R) Headnotes
Civil Procedure > Appeals > Standards of Review > General Overview
Evidence > Inferences & Presumptions > General Overview
[HN1] That the finding of the trial court on conflicting evidence will not be disturbed on appeal is elementary, but that
doctrine contemplates that the finding must be based on a real and substantial conflict upon material points. In that
Page 1
connection it should be noted that upon the issues raised by the pleadings, the plaintiff was bound to assume the burden
of proof and in the end prevail by a preponderance of the evidence. If the existence of an essential fact upon which a
party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and
not his adversary. Also, a finding of fact must be an inference drawn from evidence rather than on a mere speculation as
to probabilities without evidence. A majority of chances never can suffice alone to establish a proposition of fact, since
the slightest real evidence would outweigh all contrary probabilities.
HEADNOTES CALIFORNIA OFFICIAL REPORTS HEADNOTES
(1) Appeal--Findings--Conflicting Evidence. -- --A finding of the trial court on conflicting evidence will not be
disturbed on appeal, but the finding must be based on a real and substantial conflict upon a material point.
(2) Evidence--Burden of Proof--Judgments. -- --Upon the issues raised by the pleadings, the plaintiff is bound to
assume the burden of proof and in the end prevail by a preponderance of the evidence, and if the existence of an
essential fact upon which a party relies is left in doubt, or is uncertain, the party upon whom the burden rests of
establishing that fact should suffer, and not his adversary, as a judgment cannot be based on guesses or conjectures.
(3) Negligence--Food--Poisoning--Evidence. -- --The presence of maggots on sausage, standing alone, furnishes no
evidence to sustain a finding that the sausage was a "filthy, decomposed and putrid animal substance and unwholesome
and unfit for human consumption", in an action for damages for alleged negligence in selling the sausage to the plaintiff
who became violently ill after eating the same.
(4) Id.--Testimony of Physician--False Basis--Warranty. -- --In such an action, in which the second cause of action
was for breach of an implied warranty that the food was reasonably fit for human consumption, where the finding to
that effect was based solely upon the testimony of a physician, who testified that he reached the conclusion that the food
was unwholesome because of the presence of maggots, that maggots fed on putrid material only and never fed upon
wholesome, clean flesh, and the only credible evidence in the case as to the condition of the meat was that it was pure
and wholesome when chemically analyzed on the date following the sale; and the testimony of the physician did not
create a conflict and did not meet the burden of proof that the food was not reasonably fit for human consumption, as
required by section 1735 of the Civil Code.
SYLLABUS
The facts are stated in the opinion of the court.
COUNSEL: Swaffield & Swaffield, W. Torrence Stockman and Owen Meredith, for Appellant.
Stevens Fargo and George W. Fenimore, for Respondent.
JUDGES: In Bank. Nourse, J., pro tem. Edmonds, J., Shenk, J., Sturtevant, J., pro tem., and Seawell, J., concurred.
Langdon, J., and Curtis, J., dissented.
OPINION BY: NOURSE
OPINION
[*325] [**934] The plaintiff sued for injuries alleged to be the result of negligence on the part of the defendant in the
preparation and sale of pork sausages which she alleged were unwholesome and unfit for human consumption. A
second cause of action was pleaded charging a breach of the implied warranty that such food was fit for consumption.
Judgment for $ 1630 went for the plaintiff on both causes of action after a trial by the court sitting without a jury. On
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9 Cal. 2d 324, *; 70 P.2d 933, **;
1937 Cal. LEXIS 399, ***1
appeal to the District Court of Appeal this judgment was reversed. The opinion of Doran, J., is a fair and complete
statement of the facts which correctly disposes of the issue of negligence and we quote and adopt that part [***2] of the
opinion reading as follows:
"The evidence reveals that plaintiff was a widow, twenty-nine years of age; that she lived alone; and until a month
previous to the incident complained of had been in the employ of the S. E. R. A. as a seamstress at the monthly wage of
$ 24. On the day in question she ate her breakfast, consisting of a glass of milk and a piece of bread, at 7:00 o'clock in
the morning. She testified that she ate nothing else all day until 5:30 that evening. About 5:00 o'clock she visited
appellant's place of business and purchased a pound of link sausage, which was wrapped in paper held in place by a
'sticker'. Plaintiff returned to her home, about four blocks [*326] distant, broke off two of the links of sausage, fried
them and prepared them in the form of a sandwich. The remainder of the sausage she replaced in the original wrapper
which, she testified, she then put 'in the ice box on the ice'. She was taken ill as she finished eating the sandwich; her
testimony was: 'After I had got through eating, just before, I taken a pain in my stomach.' Within a few minutes after she
was taken ill neighbors offered their assistance and the police department was [***3] notified. By the time the officers
had arrived it was dark, and after hearing plaintiff's account of the probable cause of her illness, one of the officers went
to the ice box to examine the remainder of the sausage. This was about two hours and a half after the sausage had been
purchased. He testified: '"Let's go back in the kitchen and see if we can find this meat she said she had been eating
from."' (Addressing one William Hardy, a neighbor, who accompanied the officer to the kitchen.) 'And he (Hardy)
opened the ice box and we looked for any package that looked like it might hold meat, and there was a package in there
that we found some sausage in.' Question by attorney for plaintiff: 'What happened to the package? A. Well, it was link
sausage, large link sausage, and I believe there was three and a half links, and the half link looked like it had been
broken or else cut in half with a very dull knife and had a ragged edge. I laid it on top of the high oven there, the man
was with me in the kitchen, and I used my flashlight, and on the open end of the sausage there were several maggots.'
"The witness Hardy testified that he, at the same time, saw two maggots 'between the links'. [***4] The officer was
asked whether there was any ice in the ice box, to which he replied: 'I couldn't say. We didn't open the ice side.' He also
testified that he saw other articles in the ice box, to which he paid no attention.
"Plaintiff's physician testified that he diagnosed plaintiff's illness as 'botulism', and that in his opinion it was caused
from eating the above described sausage.
" [**935] The evidence further reveals that after the ambulance had taken plaintiff to the receiving hospital, the officer
took the sausage to the butcher who had sold it to plaintiff, where it was examined and compared with like sausage still
on sale. The officer testified that aside from the appearance of the maggots, the sausage which he brought with him
gave no [*327] evidence, either from odor or appearance, of being unwholesome. The next day inspectors from the
Los Angeles Health Department visited plaintiff's home and obtained the remainder of the sausage. Their testimony was
to the effect that there were no maggots at that time and from their examination it appeared fresh and wholesome. It was
then taken to the Health Department for chemical and miscroscopic examination. The [***5] evidence reveals that
from this examination the sausage was found to be pure and wholesome and 'no organism of the food poisoning groups
were present'.
"It was established by expert testimony introduced for the defendant and unrefuted that no examination was made for
bacillus botulinus because such organisms only flourish where there is no oxygen present, -- such as in canned goods. It
was also contended by experts for the defense that the effect of food poisoning, particularly botulism, does not manifest
itself for several hours after contaminated food is eaten; and, that the appearance of maggots was not necessarily
evidence of contamination.
"The only expert evidence offered by plaintiff was the testimony of her physician who testified, 'I diagnosed the case as
botulism.'
"The court found, 'That it is true that on or about August 28, 1935, plaintiff purchased from defendant E. F. Smith at
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9 Cal. 2d 324, *325; 70 P.2d 933, **934;
1937 Cal. LEXIS 399, ***1
4222 South Central avenue, Los Angeles, California, for her own consumption, food consisting of meat, and that on or
about said date said plaintiff ate said meat so purchased and immediately thereafter became violently ill and suffered
severe and permanent injuries and suffered severe nervous [***6] shock, to her general damage. . . . That it is true that
the aforesaid illness, injury and damage to plaintiff were directly and proximately caused by the negligence and
carelessness of defendant E. F. Smith only, in manufacturing, producing, preparing, compounding, packing, offering,
keeping and selling the said food to plaintiff; said food being a filthy, decomposed and putrid animal substance and
unwholesome and unfit for human consumption.'
"It would appear as a first impression, from a cursory examination of the record herein, that there is merely a conflict in
the evidence, and that therefore, in the absence of prejudicial error, the judgment should stand. A more careful study of
the evidence, however, and a consideration of [*328] the findings in the light thereof, develop the decisive question
herein: namely, whether there is any evidence at all to support the court's findings above quoted in regard to the quality
and character of the food. Obviously, if the evidence is insufficient in this respect, the question as to a conflict and also
the question as to whether the evidence preponderates are eliminated.
(1) " [HN1] That the finding of the trial court on conflicting evidence [***7] will not be disturbed on appeal, is
elementary, but that doctrine contemplates that the finding must be based on a 'real and substantial conflict upon
material points'. (2 Cal. Jur., sec. 545, p. 929.) (2) In that connection it should be noted that upon the issues raised by
the pleadings, the plaintiff was bound to assume the burden of proof and in the end prevail by a preponderance of the
evidence. If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon
whom the burden rests to establish that fact should suffer, and not his adversary. ( Patterson v. San Francisco etc. Ry.
Co., 147 Cal. 178 [81 Pac. 531].) A judgment cannot be based on guesses or conjectures. ( Puckhaber v. Southern Pac.
Co., 132 Cal. 363 [64 Pac. 480].) And, also, 'A finding of fact must be an inference drawn from evidence rather than on
a mere speculation as to probabilities without evidence. A majority of chances never can suffice alone to establish a
proposition of fact, since the slightest real evidence would outweigh all contrary probabilities.' (23 Cor. Jur., sec. 1750,
p. 18.)
(3) "In analyzing the evidence adduced at the trial it is at [***8] once apparent that the presence of the maggots is a
treacherous circumstance, -- a circumstance fraught with the capability as well as the tendency to deceive and mislead.
The memory of that with which maggots are generally associated from common experience naturally arouses a feeling
of revulsion. Under the influence of emotions thus aroused a greater significance and importance might easily be
attributed to the presence of maggots [**936] than pure reason would allow. Biologically, maggots are but the larvae
of insects, most commonly that of the housefly. They are not poisonous; indeed it is conceded that maggots are used in
modern surgery for the treatment of open wounds. Moreover, maggots are not found exclusively on 'filthy, decomposed
and putrid animal substance'. Their presence, therefore, standing alone, [*329] furnished no evidence that the sausage
was of the quality and character found by the trial court.
"The record reveals but two facts legally established by plaintiff to support the judgment: First, that she became ill while
eating the sausage; and, second, that there were maggots on the remainder of the sausage."
It should be added that the undisputed [***9] evidence showed that defendant's place of business was clean and
sanitary and that the food was prepared and sold under proper local sanitary regulations and inspection. There is not a
word of evidence to support the finding of negligence on the part of the defendant.
(4) Upon the second cause of action appellant's attack rests upon the claim that the evidence is insufficient to prove a
breach of the implied warranty that the food when sold was reasonably fit for consumption. The trial court found that
respondent's illness was caused by her consumption of the sausages, "said food being a filthy, decomposed and putrid
animal substance and unwholesome and unfit for human consumption". This finding is based solely upon the testimony
of respondent's physician, who testified that he reached the conclusion that the food was unwholesome because of the
presence of the maggots -- that maggots feed on putrid material only and never feed upon wholesome, clean flesh. It is
a matter of common knowledge that flies will attack and lay their eggs upon fresh clean meat and that maggots will
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9 Cal. 2d 324, *327; 70 P.2d 933, **935;
1937 Cal. LEXIS 399, ***5
hatch and develop in a very short time thereafter. It is entirely upon this false premise that the physician [***10] based
his testimony -- that the meat was putrid because maggots were on it, that maggots were on it because it was putrid, that
because it was putrid the maggots were toxic, and that because they were toxic they caused respondent's illness. The
only credible evidence as to the condition of the meat was that it was pure and wholesome when chemically analyzed on
the day following the sale. Yet this was the only portion of the meat sold upon which any maggots had been seen. This
is the "fact" upon which the physician drew his inference that the meat was decomposed on the previous evening. But
reason compels the opposite inference and reason is the requisite of all inferences. It was said in Mix v. Ingersoll Candy
Co., 6 Cal. (2d) 674, 681 [59 Pac. (2d) 144]: "Although it may frequently be a question for a jury as the trier of facts to
determine [*330] whether or not the particular defect alleged rendered the food not reasonably fit for human
consumption, yet certain cases present facts from which the court itself may say as a matter of law that the alleged
defect does not fall within the terms of the statute. It is insisted that the court may so determine herein only [***11] if
it is empowered to take judicial notice of the alleged fact that chicken pies usually contain chicken bones. It is not
necessary to go so far as to hold that chicken pies usually contain chicken bones. It is sufficient if it may be said that as
a matter of common knowledge chicken pies occasionally contain chicken bones."
Hence, since the proven facts are that maggots were attached to this particular meat which was found to be pure and
wholesome the following day, the only reasonable inference to be drawn from these facts is that maggots will be found
on meat which is not putrid and decomposed. For these reasons the testimony of this witness in which he drew the
conclusions above noted does not create a conflict in the evidence and does not meet respondent's burden to prove that
the food was not reasonably fit for human consumption as required by section 1735 of the Civil Code.
The judgment is reversed.
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9 Cal. 2d 324, *329; 70 P.2d 933, **936;
1937 Cal. LEXIS 399, ***9