
    No. 635
    PORTAGE MARKET CO. v. GEORGE
    Ohio Appeals, 9th Dist., Summit County
    No. 796.
    Decided Feb. 25, 1924
    225. CHARGE TO JURY — Submission of statute to jury when evidence substantiates violation of pure food act, though not pleaded, held not erroneous.
    923. PLEADING — A general statute need not be pleaded.
    981. PURE FOOD LAW — Knowledge jo® unwholesomness of food not necessary to constitute a violation of Pure Food Act.
    Attorneys — Carl M. Myers and Donald Gott-wald, for Market Co.; Smoyer, Clinedinst & Smoyer, for George; all of Akron.
   WASHBURN, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Motion to certify this case, pending’ in Supreme Court.

This was an action to recover for an injury caused by the eating of unwholesome meat, which was unfit for human consumption. The Market Company sold to the mother of Charles George a certain veal roast for domestic use and immediate consumption, some of which was eaten by the boy and which caused him to become seriously ill. The evidence disclosed that the meat was thoroughly cooked.

The Market Company offered evidence tending to disprove these facts and tending to show that the meat was wholesome. At the instance of the Market Company the following interrogatory was submitted to the jury: “Do you find from the evidence that the veal roast purchased by the plaintiff’s mother was unwholesome at the time it was sold to her by the defendant?” The jury returned a verdict for $5,000, whereupon defendant prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

1. While the petition did' not allege that the sale violated any statute, yet the petition did .allege facts which, if true, constituted the violation of a state law; consequently the court in submitting the case to the jury upon one claim of negligence, to wit, the sale of putrid or unwholesome meat in violation of the state law, did not commit error.

2. It was unnecessary to plead a general .statute in order to take advantage of this violation, as the mere allegation of facts, which, if true, constitutes a violation of the statute is sufficient.

3. Knowledge of the unwholesome character ■of the food sold is not necessary under GC. 12760 in order to constitute a violation of this section.  