It appears to me that the decision of this Court as reflected in the opinion of Mr. Justice Stukes will tend toward the creation of confusion in a field of law that is of great importance to manufacturers and to the consuming public alike. The precise question raised in this case has not heretofore been passed upon by us. Whatever the disposition of the present case may be, no doubt should be left as to the intent of the Court and as to the Court's conception of the meaning of the pertinent statutory provisions. Because I am convinced that the Court has reached the wrong conclusion, and has mistakenly based its conclusion upon an inapplicable case, I am constrained to dissent.
A very meagre record, in which neither pleadings nor testimony are set out, discloses to us this simple state of *Page 157 facts: The appellant purchased from a merchant a cake which had been baked by the respondent, and sold by the respondent to the merchant for resale at retail; in eating the cake, the appellant received a severe cut in her gums from a sharp piece of steel which was embedded therein, as the result of which she suffered much pain and sustained severe injuries to her gums and mouth. It is charged that the injuries were caused by the gross and willful negligence of the respondent in stated particulars, none of which refer to any statutory provision.
At the trial of the case below, a motion for a direction of verdict in favor of the respondent was granted, upon the ground that the appellant had failed to prove negligence on the part of the respondent.
As far as the record discloses, the South Carolina pure food statute came into the picture only in the arguments before the trial Judge. He held that there was no evidence of common-law negligence, and that no presumption of negligence arose under the statute merely upon proof of the presence of the foreign substance in the cake.
In the brief of the appellant it is admitted that unless the pure food statute applies, giving rise to a presumption of negligence from mere proof of the fact that the statute has been violated, the testimony offered on behalf of the appellant was not sufficient to send the case to the jury. The exceptions similarly limit the problem before us to the single question whether the pure food statute is applicable, and if so, whether it has been violated.
The pure food statute is contained in Section 5124 et seq., of the Code. The provisions which are declared applicable in the majority opinion are that an article of food shall be deemed to be adulterated:
"If any substance or substances has or have been mixed with it so as to reduce or lower or injuriously affect its quality or strength." Sec. 5128(b) (1). *Page 158
"If it contains any added poisonous ingredient, or any ingredient which may render such article injurious to the health of the person consuming: * * *." Sec. 5128(b) (7).
"If it contains any added poisonous or other added deleterious ingredient, which may render such article injurious to health: * * *." Sec. 5128-27(2); sub-div. Fifth.
The trial Judge expressed the view that the statute must receive a strict construction, "because it is not only a penal statute, but it is also in derogation of the principles of common law negligence." And the opinion to which this dissent is written states that this was error. The point is made that if the present case were a criminal case, a strict construction of the applicable statutory provisions might be called for, but that in a civil action the rule does not apply, and that the construction to be given the law must be one that is "fair and reasonable" or "liberal" to effectuate the purpose of the legislation.
In the case of Delk v. Liggett Myers Tobacco Co., 180 S.C. 436,186 S.E., 383, the rule declared by the trial Judge in this case was stated, and there is high authority for this view in other jurisdictions. Johnson v. Stoddard,310 Mass. 232, 37 N.E.2d 505, 140 A.L.R., 186. But it is unnecessary to deal with that question because in the writer's opinion there is no occasion to construe the statute in relation to the facts of the present case. The pertinent words are words in general use and of a commonly accepted signification.
On a proper state of facts, showing or implying responsibility on the part of the manufacturer for the presence of steel in the cake, due to negligence in the process of manufacture or in the handling and distribution of the product, the cases of Irick v. Peoples Baking Co., 187 S.C. 238,196 S.E., 887, and Delk v. Liggett Myers Tobacco Co., supra, show that liability existed at common law. But this common-law liability had limitations which were deemed detrimental *Page 159 to the public interests, and for the purpose of expanding the field of liability in relation to the manufacture and sale of food, the statute was enacted to impose liability when ingredients of a product sold are poisonous or deleterious, so as to be injurious to health.
A piece of steel is not, under the facts of this case, a poisonous substance; nor is its presence in a cake an ingredient of the cake in any common or technical signification of the term. Neither can it be said that in the sense of a statute which deals with the introduction into food products of substances that impair their quality or strength, the word "mixed" can be held to apply to anything other than a substance which enters into the composition of the finished product. It is elementary that the words of a statute will not be expanded or distorted to encompass a case outside of their scope, or outside of the meaning which in ordinary parlance the words must have meant to the legislative mind, and that is especially true in a case where to adopt the suggested broader construction is in effect to judicially legislate into the meaning of the words used an additional meaning which, if intended, normally would have been expressed in entirely different legislative terms.
Where, as in this State, liability under the statute can be predicated only upon the proof of the presence in the product of an ingredient which is poisonous or deleterious, or of a substance which reduces or lowers the quality or strength of the product, it is difficult to understand how the unexplained presence of a piece of steel in a bakery product can be said to be within the legislative contemplation.
To illustrate, baking powder or a sweetening element might in a given case prove to be poisonous or deleterious; it would be an "added poisonous ingredient" or a "deleterious ingredient" or a "substance" "mixed," not because it is a component part of the finished product as distinguished from a foreign substance unintentionally inserted or added, but because in the accepted sense of the *Page 160 word it is an "ingredient" or "substance" added to or "mixed" in the product. By a parity of reasoning, negligent manufacture or handling of a product which results in a state of facts such as is presented here involves the presence of an entirely foreign substance which does not come within the signification of the words "poisonous" or "deleterious to health," and presents a case no different in principle from one in which the injuries sustained arise out of negligence in permitting a product to be so wrapped and packaged that the handling of the article produces physical injuries.
The whole tenor and scope of the many provisions of the South Carolina pure food law emphasize the legislative purpose to protect the public against injuries to health resulting from either carelessness or willfulness in the manufacture of food products in the field of "ingredients." The purpose and result are not to abolish common-law rules of liability, but to introduce new fields of liability where any ingredient entering into the process of manufacture of a food product is of a character that may be described as poisonous or otherwise deleterious to health.
The citation in the majority Opinion of the case of Irick v.Peoples Baking Co., supra, as "a plain and pointed precedent for the present decision" is in the opinion of the writer based upon a misapprehension. The fact that the case cited dealt with an action under the common law, and not under the statute is clouded by the citation in the opinion of a text statement taken from 26 C.J., 785; 36 C.J.S., Food, § 58; wherein the author deals with the liability of the manufacturer of a food product under the pure food statute; and this cloud is accentuated by the citation after the quoted text, without comment, of a section of the South Carolina pure food statute. But when the opinion as a whole is read it is readily seen that the action was brought under the common law, and not under the statute. And this is conclusively found to be the case when resort is had to the transcript upon which the case came to this Court. *Page 161
In other words, the Irick case would be a pertinent authority on the present issue if the exceptions were not restricted to an alleged violation of the pure food statute. But even though pertinent in that light, the case still would not be controlling of the issue before us here. As the opinion of the Court in that case discloses, a pertinent allegation of the complaint was that when the plaintiff began eating a slice of the cake produced by the defendant, her mouth, gums and lips were cut and bruised by several pieces of sharp glass that had been "baked in the cake by the defendant"; and that the injuries of which the plaintiff complained were due to the defendant's negligence in permitting "the said glass to be baked in the said cake and sold to the plaintiff * * *." And it was testified that the cake in question reached the plaintiff directly from the defendant's bakery, wrapped in cellophane.
In the record before us, no such allegations are made and no such testimony is disclosed. There is nothing in the record from which it can be reasonably inferred whether the appearance or condition of the cake, or of any wrapping in which it may have been enclosed, indicated that the piece of steel was baked in the cake purchased by the appellant here, or was inserted or otherwise found its way into the cake after the same had been produced, and whether this happened before or after the delivery of the cake to the merchant from whom the appellant purchased it.
The statement in the majority opinion that the "steel here was a substance mixed with the cake" is not supported by the record. If it had been so supported, the appellant would not be here limiting his appeal to the question of the applicability of the pure food statute. He would have had at least a prima facie case under the decision in the Irick case above referred to. As far as the record discloses, the steel could have entered the cake after the process of manufacture had been completed, and after the cake left the hands of the manufacturer. *Page 162
The views above expressed find support in the case ofBourcheix v. Willow Brook Dairy, 268 N.Y. 1, 198 N.E., 617, 98 A.L.R., 1492.
Limiting the disposition of the case to the single question presented by appellant whether the pure food act is applicable to the present case, the ruling of the trial Judge on that point should be affirmed.
MR. ASSOCIATE JUSTICE TAYLOR concurs.