A. Levy & J. Zentner Co. v. Brugetti Ice Co.

MUSSELL, J. This is an appeal from a judgment in an action for damages for negligence in the storage of frozen shrimp.

On May 28, 1946, plaintiff delivered to defendants at their place of business in Fresno, and defendants accepted for storage, 5,000 pounds of frozen shrimp in 100 cases of 50 pounds each, to be stored and kept by defendants in a frozen state and delivered to plaintiff on order. The shrimp was packed in cases of soft corrugated cardboard and each case contained 10 waxed cardboard cartons, each contained 5 pounds of shrimp frozen in a solid block,

Plaintiff sold 99 cases, so stored, to various customers and during a period of approximately eight weeks after May 28, 1946, about 31 cases were withdrawn from storage, delivered to purchasers and were by them found to be in good condition. After August 1st, 1946, customers complained that the shrimp delivered to them was discolored, gave off a strong offensive odor when thawed and was unfit for human consumption. It was then found that 3,450 pounds, or 69 cases, were spoiled and unmarketable.

It is contended by plaintiff that the shrimp was in good condition and fit for human consumption when stored with defendants; that 3,450 pounds were returned to plaintiff [816]by defendants in a spoiled condition and that it was the duty of defendants to account for this condition in some manner consistent with the exercise of due care on their part.

Defendants operated the cold storage plant in a building approximately 60 by 75 feet, which on the inside was divided into three storage rooms, with lockers and storage space. The refrigerant was driven by means of fans through coils in each room and there was testimony by defendants that the temperature was kept below 10 degrees above zero during all of the time that plaintiff’s shrimp was stored in the plant.

Herman Rempel, a chemist, testified on behalf of plaintiff that bacteria are always present in shrimp; that as soon as they are frozen, bacterial action will be arrested and stopped, and they will be in the condition in which they were frozen until rethawed again; that if frozen shrimp is discolored to a brown or blackish color and gives off a strong odor when thawed, “that indicates that products of decomposition are present” and, “if the color has definitely changed, and if the bacteria content is high, it would not be fit for human consumption”; “that at 23 above, certain types of bacteria could grow and cause decomposition; but below that they would not”; that if a package of shrimp is opened and decomposition found beyond the point where they are fit for human consumption, either the shrimp were not fresh when originally frozen, or, after originally frozen, temperatures were not maintained at a point where bacterial decomposition was arrested; that simply by opening the package of shrimp and finding it unfit for human consumption, by reason of bacterial development, does not lay any foundation or basis or means for saying whether or not the shrimp was fresh when originally frozen, or whether the development occurred after freezing; that one of two things would be true; either the bacterial development had progressed to that point when originally packed, or temperatures were above 20 degrees for a long period of time.