The plaintiff, claiming to have become infected with the disease known as trichinosis, by eating pork chops which contained trichinae, has recovered a judgment for the consequent damages against the retail dealer from whom she purchased the chops. That dealer impleaded the wholesale dealer who sold the chops to him and recovered judgment over against the wholesale dealer. The wholesale dealer impleaded Armour Company, the packer of the pork, and recovered judgment against it. The packer alone has appealed from the judgment. *Page 138
The trial judge has found "that the defendant Armour Company was not negligent in the preparation of said loins of pork and pork chops." Upon this record the court could not find otherwise, for it appears by uncontradicted evidence, and the trial court has found, that "Armour Company prepared its loins of pork in conformance with the general usage and universally approved practices of the packing industry in the United States." (Cf.Ketterer v. Armour Co., 247 Fed. Rep. 921.) The evidence shows that many hogs are infected with the parasites known as trichinae, and the court has found that "there is no known practical method by which trichinae may be discovered in slaughtered hogs." For that reason the United States government has discontinued the practice of examining with a microscope the carcasses of hogs in an endeavor to discover the presence of trichinae. Here the pork was approved by the United States government inspectors. True, trichinae in the pork could be destroyed by cooking or by keeping the meat for twenty days under refrigeration at a temperature of five degrees or lower; but in the meat industry where pork is sold in its raw state to be cooked by the purchaser before it is used, it is not subjected to freezing in advance. No contention is now made that failure of Armour Company to freeze the pork before sale constitutes negligence, and there is no exception in the record to the finding that Armour Company was not negligent.
Since the court has found that Armour Company was not negligent, it can be held liable for the damage which resulted from the presence of trichinae in the pork they prepared and sold only if Armour Company warranted that the pork was free from parasites. In that regard the court has found that the pork "was infected with a disease known as trichinosis and was therefore not of a merchantable quality and was unfit for human consumption by reason thereof." The court also found that Armour Company warranted that the goods it *Page 139 sold were of a merchantable quality. That upon the sale of the pork by Armour Company there was an implied warranty that the pork was of merchantable quality is clear. (Pers. Prop. Law, § 96; Cons. Laws, ch. 41.) The question in the case is whether the presence of trichinae renders pork "unmerchantable." (Cf.Rinaldi v. Mohican Co., 225 N.Y. 70.)
In that case a recovery was sustained against a retail dealer for damages resulting to the purchaser from eating pork infested with trichinae, upon the theory that a dealer who sells meat for human consumption ordinarily impliedly warrants that the meat is fit to be used for food. Any distinction between a warranty that pork is merchantable or that it is fit for human consumption is unsubstantial. We draw no such distinction. The retail dealer's warranty to his customer that food purchased for immediate use is fit for human consumption and the packer's warranty upon a sale by description that the pork is merchantable, are substantially alike.
In the Rinaldi case, however, this court did not pass upon the question whether the evidence showed that the pork was, in fact, unfit for human consumption because it contained trichinae. Upon the appeal to this court the unanimous decision of the Appellate Division that there was evidence to sustain the verdict of the jury was not subject to review. In this case we must pass upon that question. Here there is no evidence or finding that the pork was unwholesome or unmerchantable for any reason other than that trichinae were present. The pork when sold was raw, and as the court has found, it was not fit for human consumption in a raw state. The court has also found that the plaintiff knew that eating raw pork chops or raw pork which is not well cooked might cause illness. The pork was sold to be eaten when cooked. The evidence establishes, and the court has found, that "if raw pork containing trichinae is heated to 137 degrees Fahrenheit all the trichinae will be destroyed and the *Page 140 pork remains wholesome and fit for human consumption" and that "it was impossible for Elizabeth McSpedon to have contracted trichinosis by eating said pork chops if same had been cooked at a temperature of 137 degrees or over."
Thus, it appears not only that the pork was prepared by the packer with all the care that is customarily used by packers, but also that the presence of the parasites could not be discovered in the exercise of reasonable care, and rendered the meat unwholesome only if it was not heated to 137 degrees. A similar condition exists not infrequently in pork products, but becomes harmless when the pork is well cooked. The pork was not unmerchantable or unwholesome unless it was intended for human consumption without being well cooked and heated to 137 degrees.
The court refused to find that "in the ordinary usage and in the course of trade raw pork loins and raw pork chops are not intended to be fit for human consumption in such state;" yet the evidence, read in the light of common knowledge, conclusively establishes that proposed finding. "The warranty in the present case was not that the food was fit to eat without cooking, but that it was fit to eat after ordinary domestic cooking." (Holt v. Mann [Supreme Judicial Court of Mass., Feb. 28, 1936],200 N.E. Rep. 403.) In that case there was evidence that the ham was cooked for three hours and the court said "it could have been found that the ham was cooked as thoroughly as could be expected in a family, but without killing trichinae with which it was infested." For that reason the court found that there was a breach of warranty. Here there is no evidence or finding that the pork was cooked as thoroughly as could be expected. Without such finding there is no basis for a conclusion that there was any breach of warranty by the packer.
The packer is not an insurer of the wholesomeness of raw pork. It is not bound to cook pork before sale or to freeze it so as to kill trichinae when ordinary cooking *Page 141 will destroy the trichinae. The packer impliedly warrants that goods sold by description are fit for their intended purpose and, therefore, merchantable. Its warranty does not extend to the wholesomeness of raw pork when the pork is intended for ordinary cooking. "Fresh pork is not ordinarily intended to be eaten raw. The warranty should be applied only to food used in the usual, rather than in the unusual and improper manner." (Cheli v.Cudahy Bros. Co., 267 Mich. 690.)
The implied warranty of the packer that the pork is merchantable and, therefore, fit for human consumption, is not breached by sale of pork prepared in the usual manner approved in the industry, salable in the usual way and not unfit for human consumption if used in the manner in which the packer might reasonably expect it to be used and for which it was intended. The warranty may be breached where pork sold is unfit for human consumption without cooking and the packer has notice that it is intended to be used in the condition in which it is sold (Cf.Gindraux v. Maurice Mercantile Co., [Cal.] 47 Pac. Rep. [2d] 708), or where it remains unwholesome in spite of cooking in the ordinary manner. (Holt v. Mann, supra; Rinaldi v. MohicanCo., supra.) In this case there is no finding that the pork was unwholesome if cooked in the ordinary manner and no evidence which would justify such a finding. Without such a finding no judgment against Armour Company can be sustained.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
HUBBS, LOUGHRAN and FINCH, JJ., concur with CRANE, Ch. J.; LEHMAN, J., dissents in opinion in which O'BRIEN and CROUCH, JJ., concur.
Judgment affirmed. *Page 142