16 Wn.2d 1, JOHN GEISNESS, as Administrator, Respondent, v. SCOW BAY PACKING COMPANY, INC., Appellant
[No. 28843. Department One. Supreme Court December 28, 1942.]
JOHN GEISNESS, as Administrator, Respondent, v. SCOW
BAY PACKING COMPANY, INC., Appellant.«1»

[1] TRIAL - TAKING CASE FROM JURY - SUFFICIENCY OF EVIDENCE. A challenge to the sufficiency of the evidence admits the truth of the plaintiff's evidence and all inferences reasonably to be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant and in the light most favorable to the plaintiff.

[2] FOOD - SALES - THEORY OF ACTION - CONTRACT OR TORT - IMPLIED WARRANTY OR NEGLIGENCE. An action in tort through negligence lies for breach of implied warranty of the wholesomeness of food sold for human consumption, the liability not resting so much upon an implied contract as upon a neglect of a duty voluntarily assumed; and a complaint which sets forth the facts from which the duty springs, the neglect of that duty, and resulting injury, is sufficiently broad to permit a recovery on the theory of implied warranty.

[3] SAME - ACTIONS FOR INJURIES - PERSONS LIABLE. A food manufacturer impliedly warrants that his goods are wholesome and fit for human consumption, such warranty being available to all who may be damaged by their use in the legitimate channels of trade; and the ultimate consumer may recover for the breach of warranty against the manufacturer or packer as well as against his immediate vendor.

[4] SAME - ACTIONS FOR INJURIES - PRESUMPTIONS AND BURDEN OF PROOF. In an action against a food manufacturer for breach of warranty by the sale of unwholesome food, the plaintiff has the burden to establish not only the facts from which the warranty springs, but also the facts which show a breach of

«1» Reported in 132 P. (2d) 740.

[2] See 22 Am. Jur. 880.

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warranty, and the unwholesome character of food is not established, nor a prima facie case made, merely by showing that the plaintiff became sick after eating it.

[5] SAME - EVIDENCE OF UNWHOLESOMENESS. To hold the manufacturer or packer liable for damage caused by unwholesome food, it must be shown that the food was unwholesome when the original package was opened.

[6] EVIDENCE - SUFFICIENCY TO SUPPORT VERDICT. A verdict in favor of a plaintiff cannot be made to rest upon mere speculation or conjecture, and the evidence must present something more than a possibility that an injury may have occurred.

[7] SAME - CIRCUMSTANTIAL EVIDENCE. The facts necessary to establish a plaintiff's case on the theory of implied warranty may be proved by circumstantial evidence.

[8] FOOD - ACTIONS FOR INJURIES EVIDENCE - CAUSAL CONNECTION. In an action against a food manufacturer for breach of warranty by the sale of unwholesome food, after establishing the unwholesome character of the food the causal connection between the injury and the claimed poisonous food must be shown; and while it is not necessary to show that the particular food was the only possible cause of the injury, it must be shown that it was the most probable cause.

[9] SAME - CANNED GOODS - PRESUMPTIONS. Where food alleged to have been unwholesome was in a sealed container, it may be assumed that, if it was unwholesome, it was due to some failure of the packer.

[10] SAME - EVIDENCE - SUFFICIENCY. In an action against a salmon canner for death alleged to have been caused by eating unwholesome salmon, evidence reviewed and held insufficient to warrant a holding that the salmon eaten by the decedent caused her food poisoning.

[11] SAME. In such an action, held that, assuming that the decedent did suffer from food poisoning due to the unwholesome condition of the salmon, the evidence did not establish a causal connection between the food poisoning and her subsequent death due to lobar pneumonia.

MILLARD, J., dissents.

Appeal from a judgment of the superior Court for King county, Findley, J., entered April 22, 1942, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death. Reversed.

GEISNESS v. SCOW BAY PACKING CO. 3
Dec. 1942] Opinion Per JEFFERS, J.

Kerr, McCord & Carey and Stephen V. Carey, for appellant.

Graham K. Betts, for respondent.

JEFFERS, J. -

This action was brought by John Geisness, as ancillary administrator of the estate of Theoma Sturgill Wright, deceased, against Scow Bay Packing Company, Inc., in the superior court for King county, on or about May 20, 1939, to recover damages from defendant for the wrongful death of Theoma Wright, claimed to have been caused from eating canned salmon prepared and canned by defendant. The amended complaint, in substance, alleges that John Geisness is the duly appointed, qualified, and acting ancillary administrator of the estate of Theoma Wright, deceased, and has brought this action in behalf of the surviving husband and two minor children; that defendant is an Alaskan corporation, and was and is engaged in canning and packing salmon at its cannery near Petersburg, Alaska, and that it packed the salmon hereinafter referred to, labeled "Motor" brand. It is further alleged that, during the canning season of 1937, defendant canned and packed, and later distributed through the Appalachia Wholesale Company, of Appalachia, Wise county, Virginia, and H. M. Donnells, a retail merchant in Dorchester, Wise county, Virginia, certain canned salmon bearing the aforesaid label, which "had been so negligently prepared and canned that on the 21st day of May, 1938, the salmon was wholly unfit and dangerous for human consumption"; that, on the last date, Theoma Wright purchased a can of this salmon from H. M. Donnells, ate a portion thereof, and at about ten-thirty o'clock in the evening of that day, and as a natural and proximate result of its dangerous and poisonous condition, was immediately poisoned

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thereby and contracted severe cramps and nausea, from which she suffered and died on May 27, 1938.

It was also alleged that Mrs. Wright had a normal life expectancy of 38.81 years, and that her husband and two minor children were dependent upon her for services, care, and counsel.

In compliance with a motion made by defendant, plaintiff filed a bill of particulars setting forth that the defendant's negligence consisted in canning and distributing for human consumption salmon which was nauseating, poisonous, and unfit for such use. The manner in which the salmon was prepared, and what caused the salmon to become unfit for human consumption, were unknown to plaintiff.

Defendant, by its answer, denied on information and belief the material allegations of the complaint, and denied positively that any salmon packed by it poisoned Theoma Wright, or that she was made ill, or that she died as a proximate result of eating salmon canned by defendant.

It was stipulated by the parties that the Virginia wrongful death statute is applicable to this action, which limits recovery, in any event, to ten thousand dollars.

The cause came on for hearing before the court and jury, and thereafter a verdict was returned in favor of plaintiff. Defendant moved for judgment notwithstanding the verdict, or for a new trial, and, these motions having been denied, judgment was entered on the verdict on April 22, 1942. From this judgment defendant has appealed.

Error is assigned in overruling appellant's challenge to the sufficiency of the evidence at the close of respondent's case and at the close of the case; in submitting the case to the jury; in giving instruction No. 10; in overruling appellant's motion for judgment

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Dec. 1942] Opinion Per JEFFERS, J.

notwithstanding the verdict; in overruling appellant's motion for new trial; and in entering judgment on the verdict.

The greater part of the testimony was presented in the form of depositions taken in Virginia, to be used in the trial of this action, or in a suit against the same company for the death of Ralph Sturgill, a brother of Mrs. Wright. The latter action was dismissed, for reasons not material herein.

Theoma Wright was twenty-five years of age in the spring of 1938. It was stipulated that the salmon in H. M. Donnells" store in May, 1938, bearing the "Motor" brand, had been packed by appellant at its Petersburg cannery during the months of July and August, 1937. Kenneth Sturgill, a brother of Theoma Wright, had purchased two cans of "Motor" brand salmon from H. M. Donnells, on Saturday, May 21, 1938, at the request of Mrs. Wright's husband. On the evening of May 21, 1938, Theoma Wright, her husband, Paul Wright, their two minor children, and Bessie Wright, the sister of Mr. Wright, went to a revival meeting held in that community, around six-thirty o'clock. The meeting was over about ten o'clock. When the Wrights returned to their home, Paul Wright opened one of the cans of salmon theretofore purchased by Kenneth Sturgill, and put the contents in a bowl. The salmon was then rolled in flour by Theoma Wright, made into little cakes, and fried in lard. Paul Wright testified that he did not notice any peculiar odor or appearance in the salmon, and that it tasted all right. The can was not dented or swollen.

Theoma Wright, Paul Wright, Bessie Wright, and the two children all ate these salmon cakes made from one can of salmon, Bessie Wright eating only one cake, and Mr. Wright eating very little. It does not appear how much Theoma Wright or the children ate.

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The only other food served at this meal was light bread, and Bessie Wright did not eat any of that. At about one-fifteen a. m., Theoma Wright awakened her husband, complaining of her stomach, and shortly thereafter she started to vomit. She remained ill and under the care of Dr. Jones until she died the following Friday.

Bessie Wright testified that, when she awakened Sunday morning following, she was ill, suffering with cramps in her stomach. Bessie had no doctor, and after walking to her home, remained in bed about two weeks, getting up only for Mrs. Wright's funeral. There was no further testimony as to the character of Bessie's illness, except her statement that she was pretty sick. Neither Mr. Wright nor the children became ill. It does not appear what Mrs. Wright or Bessie had eaten at other meals on Saturday prior to the late supper.

Kenneth Sturgill testified that, on Saturday, May 21, 1938, while the other members of his family were at the revival meeting hereinbefore referred to, he prepared some salmon cakes for his brother Ralph. It appears from the evidence that Ralph had purchased two cans of "Motor" brand salmon from H. M. Donnells' store the preceding day, and that the can from which the cakes were made was one of those so purchased. On the Saturday referred to, Ralph had bicycled to Norton, a town four or five miles from his home, and it was sometime after his return and at his request that Kenneth, around six-thirty o'clock, opened a can of salmon, made it into cakes, and fried them in lard. Ralph alone ate the entire can of salmon and two or three pieces of white bread. At about eightthirty, Ralph awakened Kenneth, and at that time almost fainted. He was immediately helped to bed by Kenneth, and complained of cramps in his stomach, shortly thereafter beginning to vomit. Ralph

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Dec. 1942] Opinion Per JEFFERS, J.

continued to be seriously ill throughout the night, suffering from severe pains in his abdomen, and perspiring freely.

Several witnesses, including members of the family and friends who saw both Mrs. Wright and Ralph Sturgill during their illness, testified that they complained of severe pains in their stomachs, and they continued to vomit at intervals; that Theoma Wright had a pale yellow coloring. There was testimony that Ralph's face was a pale yellow color, and other testimony that he appeared to be flushed. There was testimony that both Mrs. Wright and her brother were apparently in good health prior to Saturday evening.

Dr. Jones was called to attend both Mrs. Wright and Ralph on Sunday morning. He testified that Ralph was sicker than his sister, and that both of them had a fever of about 101 degrees. On Monday when he called, Ralph's abdomen was very rigid, he was still vomiting and complaining of intense pains. Theoma Wright's symptoms were about the same, although less severe. He diagnosed both cases as food poisoning, a gastrointestinal upset, and treated them accordingly. The doctor prescribed calomel, to be followed by epsom salts.

On Tuesday, fearing that Ralph's condition might require surgical work, the doctor had him removed to the Norton General Hospital for examination. At the hospital, Ralph was given a thorough examination. As a result of an X ray and fluoroscope of the chest, Dr. Jones and Dr. Harshbarger found signs of the beginning of lobar pneumonia. The doctors, being of the opinion that the case was a medical one, and that Ralph could be taken care of at home as well as in the hospital, had him returned to his home, where he died the next morning. The death certificate filed by Dr. Jones showed cause of death "lobar pneumonia,"

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but the doctor testified that, while immediate cause of death was lobar pneumonia, the contributing cause was food poisoning.

Dr. Jones testified that, on Wednesday, Theoma Wright had developed a frank pneumonia. Mrs. Wright died the following Friday. While the death certificate filed by Dr. Jones shows the cause of Mrs. Wright's death to be lobar pneumonia, he testified that the immediate cause of her death was lobar pneumonia, contributing cause food poisoning. The doctor, in answer to a hypothetical question, stated that he felt it was quite probable that neither Mrs. Wright nor her brother would have developed the pneumonia if they had not had the food poisoning.

Dr. Jones further testified that there are two types of food poisoning, one chemical, and the other bacteriological. The doctor was then asked the following question:

"Q. If there was a food poisoning in either of these eases was it the bacteriological type? A. I couldn't say positively. There is a possibility that it might have been either one." (Italics ours.)

There was no bacteriological examination made of the excreta or vomitus of either Mrs. Wright or Ralph Sturgill, nor was there an autopsy in either case. The doctor further stated that, while nausea and vomiting are not symptomatic of pneumonia, they are concomitant events which occur frequently with pneumonia, depending on whether the person has eaten a lot of food. The doctor also testified that, when he first saw Mrs. Wright and Ralph, there were no signs of pneumonia that he could detect, although he admitted that pneumonia is often difficult to diagnose in its early stages.

During the doctor's examination, he was asked this question: "Would he [referring to Ralph] have

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Dec. 1942] Opinion Per JEFFERS, J.

contracted the pneumonia which caused his death if he had not had the food poisoning?" to which he replied:

"I couldn't say about that definitely. Almost any person has some - practically every person has some pneumococci germs in their nose, throat and mouth, and they don't contract pneumonia unless they are debilitated or their resistance is lowered. There is likelihood that he might not have had pneumonia if he hadn't had this lowered resistance from the food poisoning." (Italics ours.)

The doctor did not seem to place much significance on the fact that three members of the Wright family who ate this salmon did not become ill, stating that he had seen cases where several people had partaken of the same food, and two or three would become severely ill and the others would not be affected.

The deposition of Mr. King, who had been a funeral director for thirty years. and who had charge of both bodies, was introduced by respondent. His testimony was to the effect that he had handled many cases where the sole cause of death was pneumonia, and that in those cases the bodies were not subject to the excessive purging which he witnessed in relation to the bodies. of Theoma Wright and Ra]ph Sturgill. In other words. Mr. King found an unusual amount of gas in the intestines of Mrs. Wright and her brother, and it was this gas that caused the purging.

Dr. Feaman, of Seattle, called by respondent as an expert on lungs and heart, testified that, from the history of the cases obtained by hearing read the depositions of Mr. King and Dr. Jones, and upon the hypothetical questions asked him, he was of the opinion the pneumonia was caused by the lowered resistance of the parties due to nausea and vomiting. The doctor also stated that it is not usual in the early stages of pneumonia to have vomiting, nausea, and cramping. On cross-examination, the doctor was asked: "Well.

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were you influenced in making up your opinion here by what you heard of the deposition of Doctor Jones?" to which he answered: "If those facts were accurate, it is upon that basis that I draw my conclusion."

Because of the importance of this case, and because it turns upon the question of whether or not there is sufficient evidence to support the verdict, we have set out quite fully the evidence introduced by respondent.

At the close of respondent's case, appellant challenged the sufficiency of the evidence, and moved for a dismissal. This motion being denied, appellant then called Dr. Palmer, of Seattle, as an expert witness. Dr. Palmer testified that he had read the depositions of all of respondent's witnesses, and stated that, from the history of the cases thus obtained, he was of the opinion that the salmon eaten by Mrs. Wright and Ralph Sturgill on Saturday night was not the cause, or one of the causes, of the death of either of the parties from pneumonia. He was of the opinion they were suffering from a fulminating virulent type of lobar pneumonia, which may start with a chill, or it may start with nausea and vomiting, and, as it involves the pleura, it becomes extremely painful. It frequently happens that, in an involvement of the lower lobe of the right lung, the pain is referred to the abdomen, and diagnosis has been mistakenly made of acute appendicitis or acute gall bladder trouble. In reaching his conclusion, the doctor considered the acuteness of the onset, the extreme pain they suffered, the temperature they had, and the physical findings of the X ray in the case of Ralph Sturgill. The doctor described in detail the symptoms of the two most common types of food poisoning, stating that the incubation period for the infective type, formerly referred to as ptomaine poisoning, due to a microorganism, is seldom under four hours, and may be as late as nine days before the

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Dec. 1942] Opinion Per JEFFERS,J.

symptoms show. The outstanding symptoms of this type are numbness of the legs, numbness of the arms, or numbness of both arms and legs. There may be spasmodic flexing of the hands, or twitching, or spasmodic flexing of the fingers, twitching of the face or the shoulders, pain and stiffness in the joints. The victim usually complains of dizziness, and delirium is a very common condition.

The other type of food poisoning is the so-called botulinus. That is due to an organism which forms spores, and is most frequently found in canned goods, principally in the home canned foods. It is characterized by an onset, usually in about twelve to twenty-four hours after the food is taken. The predominating symptom is the involvement of the upper portion of the nervous system. The throat becomes completely or partially paralyzed, and the victims are unable to swallow. They are desperately ill, but have no fever. The temperature is subnormal. It is difficult to get the bowels to move. The nervous mechanism of the bowels is paralyzed. They frequently complain of double vision, and their eyes may be crossed.

Dr. Palmer was asked:

"Now, what are the symptoms characteristic of botulism that you find were absent in those cases from reading the depositions?"

At this point, Mr. Betts, counsel for respondent, made an objection on the ground that there was no indication that this was botulism. It is true that Dr. Jones was unable to say what form of food poisoning these parties were afflicted with, nor did Dr. Feaman say they were afflicted with any particular type, but it would seem perfectly proper, in an endeavor to show that they were not so afflicted, to demonstrate that they did not have the symptoms of the two most common types of food poisoning.

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Food poisoning may result from many things. In the instant case, it is claimed these people were poisoned from eating canned salmon, and there would seem to be considerable doubt cast upon the probative value of the testimony that they had food poisoning from eating the salmon, unless it were shown that they were afflicted with a type of food poisoning commonly found in canned fish. The objection was overruled, and Dr. Palmer continued, stating that the absence of those symptoms led him to believe that Mrs. Wright and Ralph Sturgill did not suffer from food poisoning.

Appellant also called E. O. Paup, associated with P. E. Harris & Co., which firm acted as broker and sales agent for appellant during the season of 1937. During that season, Mr. Paup was the sales manager, and all complaints made as to any salmon distributed were directed to him. From the records of the company, he testified that two hundred cases, or ninety-six hundred cans, of "Motor" brand salmon were shipped to Bluefield, Virginia, from which source Mr. Donnells obtained his supply, and that no complaints had been made of any of these cans except the two in question here.

[1] Appellant's assignments of error Nos. 1, 2, 3, 5, and 7 all present the same problem, namely, a challenge to the sufficiency of the evidence to sustain the judgment. In considering these assignments of error, we have in mind the often repeated rule that a challenge to the sufficiency of the evidence admits the truth of the plaintiff's evidence, and all inferences which can reasonably be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant and in the light most favorable to the plaintiff. Lindberg v. Steele, 5 Wn. (2d) 54, 104 P. (2d) 940.

While the purported cause of action stated in the amended complaint seems to be based on negligence,

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Dec. 1942] Opinion Per JEFFERS, J.

the case has been argued here primarily on the theory of implied warranty, and it will be discussed from that viewpoint.

[2] It was contended in the case of Flessher v. Carstens Packing Co., 93 Wash. 48, 160 Pac. 14, that the complaint, as construed on a former appeal, sounded in tort through negligence, and the plaintiff was erroneously permitted to recover only on the theory of implied warranty resting in contract, which was not specifically pleaded, and that, in any event, no negligence was established, in that there was neither allegation nor proof that the defendant knew that the meat in question was unwholesome. In answering this contention, we stated:

"As to the first ground, it is a sufficient answer to say that, where there is a positive duty created by implication of law independent of the contract, though arising out of a relation or state of facts created by the contract, an action on the case as for a tort will lie for a violation or disregard of that duty. [Citing cases]The implied warranty of the wholesomeness of food placed on sale, whenever it exists at all, arises as an implication of the common law.`The liability does not rest so much upon an implied contract as upon a violation or neglect of a duty voluntarily assumed.' [Citing cases] In such a case, it is sufficient to set forth the facts from which the duty springs, the neglect of that duty, and resulting injury. It is not necessary to aver in terms the existence of the relation which in law casts the duty upon the vendor, or that he knew of the injurious quality of the food. . . . Respondent, having pleaded the facts, was not required to plead the warranty as a legal conclusion in order to rely upon it."

We are of the opinion that the amended complaint in the instant case was sufficiently broad to permit a recovery on the theory of implied warranty.

[3] We have also held that, in the absence of an express warranty of quality, a manufacturer of food

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products, under modern conditions, impliedly warrants that his goods are wholesome and fit for human consumption, and that such warranty is available to all who may be damaged by reason of their use in the legitimate channels of trade. The ultimate consumer may, because of the breach of warranty, recover against the manufacturer or packer, as well as against his immediate vendor, despite the lack of privity. Mazetti v. Armour & Co., 75 Wash. 622, 135 Pac. 633, Ann. Cas. 1915C, 140; Flessher v. Carstens Packing Co., 93 Wash. 48, 160 Pac. 14; Nelson v. West Coast Dairy Co., 5 Wn. (2d) 284, 105 P. (2d) 76, 130 A. L. R. 606.

[4] The plaintiff has the burden to establish not only the facts from which the warranty springs, but also the facts which show a breach of warranty, i. e., the plaintiff must establish that the food was in fact unwholesome.

The unwholesome character of food is not established, nor is a prima facie case made, merely by showing that the plaintiff became sick after eating it. Poovey v. International Sugar Feed Number Two Co., 191 N. C. 722, 133 S. E. 12; Gracey v. Waldorf System, 251 Mass. 76, 146 N. E. 232. We might add that the rule last above announced seems to be universal.

[5] It has also been held that, in order to hold the manufacturer or packer liable, it must be shown that the food was unwholesome at the time the original package was opened, so that the possibility of contamination through some source not under the control of the manufacturer is excluded. Bowman v. Woodway Stores, 345 Ill. 110, 177 N. E. 727.

[6, 7] A verdict in favor of a plaintiff cannot be made to rest upon mere speculation or conjecture, and the evidence must present something more than a mere possibility that an injury may have occurred. The facts necessary to establish a plaintiff's case on the

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Dec. 1942] Opinion Per JEFFERS, J.

theory of implied warranty may be proved by circumstantial evidence.

[8] After establishing the unwholesome character of the salmon, the causal connection between Mrs. Wright's death and the claimed poisonous food must be shown. It is not necessary that it be shown that the particular food was the only possible cause of the injury, but it is necessary to show that it was the most probable cause. Nelson v. West Coast Dairy Co., 5 Wn. (2d) 284, 105 P. (2d) 76; Monahan v. Economy Grocery Stores Corporation, 282 Mass. 548, 185 N. E. 34; Miller v. W. T. Grant Co., 302 Mass. 429, 19 N. E. (2d) 704; Mellace v. John P. Squire Co., 306 Mass. 515, 29 N. E. (2d) 26.

[9] As the salmon was in a sealed container, it may be assumed that, if it was unwholesome, it was due to some failure on the part of appellant, as the contents could not have been contaminated after the salmon was packed.

[10] There is certainly no direct proof in this record that the salmon was unwholesome and poisonous. No foreign or noxious substance was found in the can of salmon, nor was any laboratory test made of any of the salmon to determine if there was bacteria present, or if, in fact, the salmon was deteriorated. There was no evidence that it tasted peculiar or bad, but, in fact, there was affirmative showing that the salmon looked, smelled, and tasted all right.

Testimony that food, when eaten, tasted bad has in some cases been given considerable weight in justifying a conclusion that such food was in fact unfit for human consumption. Smith v. Gerrish, 256 Mass. 183, 152 N. E. 318; Schuler v. Union News Co., 295 Mass. 350, 4 N. E. (2d) 465. And, conversely, at least where there was no direct evidence that the food was unwholesome, a lack of testimony showing the food tasted

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bad, or that it had the appearance of being unfit for human consumption; or that it had a bad odor, has been recognized at least as being some indication that the food was not in fact unwholesome. In this connection and on the general question of the burden of proof, we desire to quote from the case of Miller v. W. T. Grant Co., supra:

"The burden of proving that her illness was due to unwholesomeness of the chop suey was an affirmative one resting on the plaintiff which could not be left to surmise, conjecture or imagination. While she was not bound to exclude every other possibility of cause for her illness, she was required to show by the evidence a greater likelihood that her illness resulted from unfitness or unwholesomeness of the food served to her by the defendant, rather than from a cause for which the defendant would not be liable. . . . We are of opinion that the evidence most favorable to the plaintiff did not afford a basis for more than a conjecture that her illness was due to an unfit condition of the chop suey. There was no evidence to show what other food the plaintiff may have partaken of during the period testified to by the physician as the one of probable incubation in cases of ptomaine poisoning, except that the plaintiff's breakfast on the day involved had consisted of toast and tea. What she may have eaten between that time and the time when she ate the chop suey was left to conjecture. There was no evidence that the food `tasted bad,' or that it had the appearance of unfitness. Monahan v. Economy Grocery Stores Corp., 282 Mass. 548, 550-551, and cases cited. Nor was there evidence that any bad odor arose therefrom."

Respondent, in the instant case, has attempted to create an inference that the salmon was unwholesome, lay showing that three persons who had eaten salmon of the same brand became ill, two of whom suffered from food poisoning, according to Dr. Jones, who attended them.

We recognize the difficulty of establishing a direct

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Dec. 1942] Opinion Per JEFFERS, J.

evidence the deleterious character of a product such as canned salmon, and, as stated, we recognize that a breach of duty on the part of the manufacturer may be established by circumstantial evidence, but again we state a verdict cannot be made to rest on mere speculation or conjecture.

Accepting respondent's evidence as true, as of course we must, we are still of the opinion that respondent has failed to prove sufficient facts from which the jury could find that the salmon which Theoma Wright ate was unwholesome, or that she was poisoned as a result of eating it.

Respondent's case must be based primarily on the following facts: First, that Theoma Wright became sick after eating the salmon; second, that her doctor, who plainly was not an expert and had had little to do with food poisoning, on Sunday diagnosed her illness as food poisoning. He did not state that it was the type usually produced by unwholesome canned fish, nor even that it was the type usually produced by canned foods which had been improperly prepared. It seems to us it is only by basing inference on inference that the conclusion that this salmon was unwholesome can be reached.

Dr. Jones was never asked directly whether or not in his opinion the food poisoning was caused by eating the salmon. The nearest the testimony of the doctor comes to answering this question is found in his answer to the following question propounded on his direct examination:

"Q. Doctor, if these two young people were in normal good health on Saturday night, that each ate some canned salmon, each became violently ill within a few hours after eating this salmon and then their conditions were such as you found them and continued as you have described, and developed the pneumonia, which took their lives. would it be probable that the

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