Gindraux v. Maurice Mercantile Co.

WASTE, C. J.

The plaintiffs brought this action for damages suffered as the alleged result of eating salami purchased from the defendant which it was claimed was infected with trichina. The defendant’s motion for judgment notwithstanding the verdict was granted on the ground that the verdict was contrary to the evidence, and that there was no law in this state to sustain the verdict. Motion of plaintiffs for a new trial was denied.

The undisputed evidence is that the salami was bought by defendant from Armour & Co., the producer, in a sealed package, and was sold to plaintiffs by the slicing of a portion off the end of this sealed package. The defendant’s place of business was kept in sanitary condition. A report made by government inspectors immediately prior to the sale showed full compliance with all sanitary rules and requirements. There is no direct testimony which shows that the salami was actually infected. There is evidence which shows that the product, as manufactured and received by the defendant, was accompanied by a certificate of inspection by the United States government. As we read the record, we find no evidence tending to show that the defendant was guilty of any negligence. Its liability, therefore, if any, rests upon an implied warranty.

(Farrell

v.

Manhattan Market Co.,

198 Mass. 271, 286 [84 N. E. 481, 126 Am. St. Rep. 436, 15 Ann. Gas. 1076, 15 L. R. A. (N. S.) 884].)

[208]

The sale of the salami was made in the ordinary course of trade and business by a dealer in foodstuffs to the plaintiff for human consumption. The defendant therefore knew by implication the particular purpose for which the salami was required. From that fact, there arose an implied warranty that the commodity was reasonably fit for such purpose. (Civ. Code, sec. 1735, subd. 1;

Consolidated Pipe Co.

v.

Gunn,

140 Cal. App. 412, 415 [35 Pac. (2d) 350].) The law is the same in other states. (See