#### Lovich, Appellee, *v.*The Salvation Army, Inc., Appellant.

*318(No. 20610

Decided June 30, 1947.)

*Messrs. Harrison, Thomas, Spangenberg S Hull,*for appellee.

*Messrs. McKeehan, Merrick, Arter & Stewart*and *Mr.. Clinton M. Horn,*for appellant. /

Hurd, P. J.

In this action originating in the Court of Common Pleas of Cuyahoga county, now before this court on appeal on questions of law, a recovery was had by plaintiff in the sum of $2,000 against the defendant, the Salvation Army, Inc., for personal injuries and illness as the result of an attack, of typhoid fever suffered while the plaintiff wias a resident of a hom'e for working girls known as “Evangeline Residence” conducted by the Salvation Army. The case was tried on a second amended petition containing the following specifications :

“Plaintiff says that at the time herein referred to the defendant was reckless and negligent in the following respects to wit:

# * ***# # ***

“(3) In serving to the plaintiff food and drink which was contaminated with typhoid infection.

“ (4) in serving food and drink which was unwholesome and infected and was prepared, served and sold in violation of the so-called pure food laws of Ohio.

*319“(7) In providing impure, infected and dangerous food and drink for plaintiff in violation and breach of its promise and/or implied warranty that the food provided, served and sold in said restaurant would be fit for human consumption and free from dangerous or harmful infections or bacterial contamination.

“Asa direct result of the negligent acts hereinbefore set forth, and of the breach of the implied warranty that the food served and sold would be fit for human consumption and free from impure substances and bacterial contamination, the plaintiff became infected with typhoid bacilli, was rendered seriously ill * *

Contained in the answer are allegations of defendant that it is incorporated as a religious and charitable organization not for profit and that the plaintiff was a beneficiary of its charity. Defendant denied generally any negligence on its part and denied specifically that it was negligent or. careless in the employment of a person to serve food who was a typhoid germ carrier as alleged in the amended petition.

A number of errors are assigned but the principal errors claimed are: (1) That the Common Pleas Court erred in instructing the jury to return a verdict for plaintiff and in submitting to the jury only one form of verdict, namely, a verdict for plaintiff; (2)' That the Common Pleas Court erred in overruling defendant’s motion for judgment at the'close of all the evidence.

We shall consider these assignments of error in the order named.

There was evidence that plaintiff was one of 350 young women residing in the home and one of the. 18 sufferers in the typhoid fever - epidemic that, broke out in the home in January, 1944.

The evidence bearing on the issue of the cause of the illness of plaintiff and other sufferers was the testimony of one Dr. Theo. G-. Duncan, chief of the sub*320division of communicable diseases of the division of health of the city of Cleveland, who testified that an epidemiological survey was made under his direction. He described the measures taken to ascertain the source of infection which resulted in the identification of one Martha Brown as a typhoid carrier, who was in the employ of defendant in the kitchen, having been hired on September 14, 1943. This identification was made after a series of microscopic tests. Concerning Martha Brown, Dr. Duncan testified in part as follows:

“Q. Did your investigation reveal what the nature of her work was at the Evangeline Home? A. Yes.

“Q. What was it? A. As I remember she washed dishes. As I recall she went to work there about the 13th of September 1943 and her duties as I remember from what I got from the hospital, through the institution and herself, she was just simply a dishwasher up until a certain date in December, when she was given an additional job of making orange juice. That was about the 15th of December, some other employee was taken out of there for some reason and she had an additional job, which I learned later; I didn’t find that out at first.

*‘ ‘*Q. Did you find that she then, since she had started making the orange juice, continued at that until she left the employment? A. Her history was that for about ten days she had the full responsibility in the morning of making the orange juice, and then she was given some help; she didn’t like it, she said the work was too hard for her, and she left. When I heard about this was on the 16th of January and I found her at home.

“Q. Coming back to Martha Brown, did you run a similar stool test on her? A. Yes, we ^ook three; we took two at home and both of them were positive, and *321she had no temperature, showed no illness whatsoever for several days, and I took her to the hospital and we took three or four other cultures and they were all positive for typhoid organism.

“Q. Assuming, doctor, that Martha Brown did prepare the orange juice subsequent to the 15th of December, 1943, for a time doing it herself without any help and for a time was assisted by someone else, and that continued up through the middle of January of 1944. A. That’s right.

“Q. Assume further, that all 18 girls who later contracted typhoid fever as you have described their cases to us, included orange juice as part of their breakfast during this period from and after the 15th of December, 1943; assuming that they then contracted the disease on or about the dates that you have indicated, within the range that you have indicated; now assuming those facts and further, doctor, 'that you found the plumbing and watey supply at this residence was quite all right and showed no typhoid source contamination ; assuming all those factors, doctor, do you have an opinion — and assuming furthermore, that you made an investigation of the food handlers that worked at the Evangeline Home during the period subsequent to the 1st of November, 1943, and that your investigations showed you that only one of those food handlers was a typhoid carrier, and further, that that carrier was Martha Brown, who had assisted in the preparation of the orange juice as described before; assuming all those facts, doctor, and assuming finally the fact that you determined positively that she was a typhoid carrier, will you please tell us whether or not you have an opinion as to the cause of the typhoid fever that these 18 persons contracted? Do you have an opinion, doctor? A. I have an opinion.

“Q. All right, please tell the jury what that is. *A.**322The opinion is that this girl, who was harboring the organism typhoid fever, which was definitely proved by laboratory tests, was able to contaminate food or drinks that some of these individuals ate or drank, and in that way typhoid is spread by hand to mouth. In other words, you contaminate something that somebody else takes, and the reason we felt she did not contaminate more, it was just when she squeezed the orange squeezer, she probably contaminated it with some of the contamination on her hands, and the first one that got the orange juice got the organism from her hands, some of them got a certain amount, and it is our reason for believing it only affected a certain number, it washed off her hands.

“Q. Do you believe, then, doctor, that the orange juice these girls drank was the source of the contamination? A. I do.

“Q. And do you believe that the contamination was the presence of typhoid bacilli in the orange juice ? A. I do. * * *”

The foregoing testimony is the only direct evidence in the record in respect of the cause of the epidemic. A careful analysis thereof discloses, (1) that the doctor expounds a theory developed by him, based upon his investigations conducted after the outbreak of the epidemic, and (2) an opinion expressed upon an assumed hypothesis.

It will be noted that while the hypothesis excluded the plumbing and water supply, other hypotheses are not excluded, such as possible contacts of one or more of the residents with persons infected with the disease outside of the home. We think it is a matter of common knowledge that typhoid may be communicated by personal contact. It is well settled in Ohio that exr pert testimony may be received by the court to assist the jury in arriving at a just and correct verdict.- In*323sofar as such testimony aids the members of the jury in their deliberations it should be used. However, the members of the jury are the sole judges as to what weight the opinion of the expert is entitled to receive at their hands and should be instructed to give such testimony just such weight as they in their judgment deem it entitled to receive.

With respect to hypothetical questions, the opinions of experts based upon facts assumed are of no value unless the assumed facts forming the basis of such opinions are supported by the evidence and are true, and if the jury finds that the assumptions are not true, then it should disregard the answers to such questions. Such opinion evidence is but to supplement and not to supplant the judgment of the jury. There is a wide difference between unrebutted factual evidence and unrebutted opinion evidence, and in the instant case the court did not permit the jury, under proper instructions, to consider this evidence but instead directed a verdict for the plaintiff.

An issue was made by the testimony of the expert on the question of whether the orange juice prepared by Martha Brown, if it was prepared by her, was the source of the infection. An issue was also made whether the Evangeline Residence served contaminated food, and whether such serving was the proximate cause of the illness of the plaintiff. The burden of proof was upon the plaintiff to prove by a preponderance of evidence the essential allegations of her petition, and questions of fact were presented upon which reasonable minds might reasonably reach different conclusions.

On a review of the entire record and particularly upon consideration of the testimony of the expert witness, we are of the opinion/that the trial court erred in concluding *as a matter of law*that the sole source of *324the infection was the preparation of food by Martha Brown.

As was hereinbefore stated, neither the court nor the jury were required to accept the theory of the opinion of the expert witness as conclusive of the issues of fact raised by the pleadings and the evidence. *Bahl*v. *Byal,*90 Ohio St., 129, 106 N. E., 766; *Ohio & Indiana Torpedo Co.*v. *Fishburn,*61 Ohio St., 608, 56 N. E., 457, 76 Am. St. Rep., 437; *Haas*v. *Kundtz,*94 Ohio St., 238, 113 N. E., 826; *Manley*v. *Coleman,*19 Ohio App., 284; *Dime Savings Bank*v. *Morton,*25 Ohio App., 157, 157 N. E., 825; *Mieritz*v. *Ins. Co.,*8 N. P., 422, 11 O. D. (N. P.), 759; *Stith*v. *Indus. Comm.,*59 W. L. B., 381, 12 O. L. R., 439.

See, also, *Hamden Lodge v. Ohio Fuel Gas Co.,*127 Ohio St., 469, 189 N. E., 246, and the long line of Ohio cases following this rule.

There is one other question presented by this record which makes it unnecessary to dwell at greater length on the action of the court in directing the jury to find for plaintiff, other than to conclude that su,ch action on the part of the court constituted prejudicial error.

We think that the trial court was correct in its conclusion that it was conclusively established that the defendant was a charity, that its operation of the Evangeline Residence was a charitable enterprise, and that the plaintiff was a beneficiary of the charity. There is no evidence in the record tending to show the failure on the part of the officers or those in charge of and managing and directing the operation of the Evangeline Residence of the Salvation Army to exercise due care in the selection or retention of any of its employees, including Martha Brown.

These facts bring the instant case squarely within the rule laid down by the Supreme Court in the cases of *Cullen*v. *Schmit,*139 Ohio St., 194, 39 N. E. (2d), *325146; *Taylor*v. *Flower Deaconess Home and Hospital,*104 Ohio St., 61, 135 N. E., 287, 23 A. L. R., 900;.and *Sisters of Charity*v. *Duvelius,*123 Ohio St., 52, 173 N. E., 737. At page 196 of the case of *Cullen*v. *Schmit,*the court states the' rule as follows:

“In conformity with the general rule this court has held that a charitable or eleemosynary institution is not liable for tortious injury except (1) when the injured person is not a beneficiary of the institution, and (2) where a beneficiary suffers harm as a result of failure on the part of the authorities of the institution to exercise due care in the selection or retention of an employee. *Taylor*v. *Flower Deaconess Home & Hospital,*104 Ohio St., 61, 135 N. E., 287, 23 A. L. R., 900; *Rudy*v. *Lakeside Hospital,*115 Ohio St., 539, 155 N. E., 126; *Sisters of Charity*v. *Duvelius,*123 Ohio St., 52, 173 N. E., 737; *Lakeside Hospital*v. *Kovar, Admr.,*131 Ohio St., 333, 2 N. E. (2d), 857; *Waddell, a Minor,*v. *Y. W. C. A.,*133 Ohio St., 601, 15 N. E. (2d), 140; 10 American Jurisprudence, 687 and 691, Sections 140 and 144; 14 Corpus Juris Secundum, 548, Section 75.”

It appears that the trial court held that since there was no negligence shown in the employment of any of its servants the defendant could not be held responsible in damages on the theory of negligence. This conclusion was in accordance with well established principles of law. However the trial court held that the serving of contaminated food to plaintiff was a breach of an implied contract of sale of food and that since a charitable institution is liable on its contracts, the defendant was not entitled to the benefits of the rule of limited liability applying to charitable institutions in tort actions.

It appears that the court, as does the plaintiff herein, relied primarily upon sections of the General Code relating to the unlawful sale of adulterated and un*326wholesome food for human consumption and particularly the case of *Yochem*v. *Gloria, Inc.,*134 Ohio St., 427, 17 N. E. (2d), 731.

Section 8395, General Code, reads in part as follows:

“Subject to the provisions of this chapter and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows

“(1) When the buyer, expressly or by implication, makes known to Ihe seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that.the goods shall be reasonably fit for such purpose.”

Counsel for plaintiff in their brief set forth that in the case of *Yochem*v. *Gloria, Inc., supra,*our Supreme Court considered the applicability to food and drink sold by a restaurant of the implied warranty of fitness created by Section 8395, General Code, and points out that the plaintiff sued in that case for damages by reason of illness which resulted from drinking water contaminated with bacteria, served by the defendant restaurant. The first cause of action was based upon breach of implied warranty. The second cause of action charged a violation of the pure food laws. The trial court had refused to submit the first cause of action to the jury. The Supreme Court ruled that the failure of the trial court to submit to the jury the first cause of action based upon breach of implied warranty was reversible error.

In its first paragraph of the syllabus the court stated the law as follows:

“1. Under the provisions of Section 8395, General Code, relating to the subject of warranty, a restaurant • *327owner who supplies his customers with water, for ■drinking purposes from his own well impliedly warrants the reasonable fitness of such water for its intended use.”

The second paragraph of the syllabus is as, follows:

“2. Under such circumstances the supplying of water that is unfit for human consumption constitutes a violation of Section 12758, General Code, of the pure food laws of Ohio.”

Section 12758, General Code, cited by the Supreme Court in the second paragraph of the syllabus, provides a penalty for the sale of adulterated food as defined by the act. A careful examination of the case of *Yochem*v. *Gloria, Inc., supra,*seems to us not to sustain the argument advanced by plaintiff, because the Supreme' Court, after discussing the assignments of error at length", finally determined as expressed at page 431, and in the ’third paragraph of the syllabus, that a violation of the pure food statutes of Ohio constitutes negligence *per se.*

At page 430, as bearing on the question of the violation of the pure food laws, the court said:

“The plaintiff next complains that the trial court refused to charge the jury that a violation of the pure food and drug laws of Ohio is negligence *per se.*The correctness of the plaintiff’s position is shown by the unambiguous language of Section 5775, General Code, which provides *ipsissimis verbis*that ‘the term “food,” as used in this chapter, includes all articles used by man for food, drink, flavoring extract, confectionery, or condiment, whether simple, mixed or compound.’ However, the defendant contends that the water supplied to the plaintiff was not ‘adulterated’ within the meaning of Section 5778, General Code, which reads in part as follows: * *

*328-We think a clear inference which must be drawn from, the opinion of the court in that case is that whether there is a violation of'the pure food statutes which is negligence *per se,*or a breach of an implied warranty, the action sounds in tort, where personal injuries form the basis of an action for damages.

Numerous authorities are cited by opposing counsel ■in their able briefs concerning the question of whether this action insofar as it relates, to an implied warranty of fitness of foods sounds in contract or tort.

It would unduly burden this opinion to discuss the numerous authorities pro and con on this question and to trace the law of implied warranty in relation to> contracts of sale of food. There appears tó be a conflict of authority on this question. It is quite clear, however, that throughout the history of jurisprudence a clear distinction has always been made between the obligation imposed by contract and implied warranties which arise therefrom purely by operation of. law.

In the instant case, the petition of the plaintiff seems to be predicated primarily on negligence, because the plaintiff in her petition says that the defendant was reckless and negligent in the following respects, and in paragraph 7 of the specification states:

“In providing impure, infected and dangerous food and drink * * * in violation and breach of its promise and/or implied warranty that the food provided, served and sold in said restaurant would be fit for human consumption. ’ ’

We are not content, however, to rest our decision solely upon this language but for the purposes of this opinion we conclude that the plaintiff is relying upon an implied warranty of fitness as well.

We think by the greater weight of authority the action in this case is *ex delicto*and not *ex contractu*in the sense that it is based upon the violation of an ob*329ligation imposed by law. We think, also, this conclusion is in harmony with Ohio law, on this subject.

It would seem that, whether the liability is based upon a breach of implied warranty or negligence, the •result is the same. The action for damages for personal injury and illness is tortious in nature and the rule of limited liability in favor of eleemosynary or charitable institutions must be applied.

We conclude, therefore, that the court erred in directing a verdict for the plaintiff and in submitting to the jury the question of damages. The court also erred in failing to direct a verdict in favor of the defendant on its motion made at the conclusion of all the evidence, and therefore we proceed to render the judgment the trial court should have entered, and render final judgment for the defendant appellant.

*Judgment reversed.*

Morgan and Skeel, JJ., concur.