“Q. What, if anything, was said by the clerking: who produced that veal roast? A. He says, It is fresh meat, ma'am.' "Q. What were his words? meat, ma'am. "Q. It is fresh meat, ma'am? A. Yes, sir. "Q. What did he then do with it? A. He wrapped it up. * "Q. In your opinion, if you have an opinion, A. It is fresh | Doctor Logan, what was the thing which this boy ate which caused this discoloration? A. I will have to base that answer on the probability or frequency of the articles described in the diet containing the infection. The meat, of course, is the thing that infection develops in most readily and most persistently. May I refresh my memory on what else he ate at this time? "Q. Well, after you paid for this meat and it was wrapped up, what did you do with it? A. I went home. "Q. What time of the morning was it? About 9 o'clock. A. The witness Cuyler O. Johnson, who was one of the boarders, and an employee of the Goodyear Tire & Rubber Company, testified that he ate very little of the meat that night at supper, but took some to his work that night, a lunch, consisting of a couple of sandwiches, or one meat sandwich cut in half, with some of this meat in, and an apple. The witness went to his place of employment, and at about midnight ate the sandwich containing the meat claimed to be unwholesome. An hour later he became violently ill in the stomach, and was sent to the dispensary of the company, and later went to a doctor in "Q. He ate mashed potatoes, bread and butter, and a glass of water. That is, the boy, you mean? A. Yes. "Q. And he ate generously of the veal, having, perhaps, three helpings of it? A. None of those things besides the veal are good media in which bacteria develops. Meat is the ideal media in which bacteria develops. "Q. Then, in your opinion, if you have an opinion, what was it which he ate which caused the infection? A. The meat." Other medical testimony was introduced by the plaintiff below along the same line, as appears by the testimony of Dr. Crafts: "A. I would again say that 95 out of 100 cases of botulinous infection came from meat. "Q. Well, in this case? A. In this case, I would say that meat would probably be the cause of infection." C., H. & D. Ry. Co. v. Frye, 80 Ohio St. 289, 88 N. E. 642, 131 Am. St. Rep. 709: "In civil cases the jury deals only with probabilities," etc. Other testimony might be quoted from the record tending to substantiate the conclusion reached by the jury, to wit, that the meat was unwholesome when sold. It is claimed, on the part of the plaintiff in error, that this conclusion is the foundation of an inference upon an inference, but from an examination of the entire record we are of opinion that, even though the testimony of the medical experts is conflicting, the jury were justified in reaching the conclusion that the meat was unwholesome and caused the sickness of the plaintiff below and also of the various witnesses that testified in the case, and that this conclusion might well have been reached without basing an inference upon an inference. The record discloses that the meat was thoroughly prepared, and cooked in the ordinary manner for roasting veal, and we can see no contributory negligence as claimed by the plaintiff in error, but reach the conclusion that by the ordinary methods of weighing the testimony and arriving at facts the verdict of the jury in this instance is sustained by competent evidence, and that the special verdict in which they found that the meat was unwholesome cannot be said to be sustained by no evidence. The first ground of error claimed by the plaintiff in error must therefore be denied. [2] This brings us to the second question in the case, whether the trial court erred in his instructions to the jury when he said in his charge: "In the enactment of this statute it was the evident purpose of the General Assembly to protect the public against the harmful consequences of the sales of adulterated food and drugs, and, to the end that its purpose might not be defeated, to require the seller at his peril to know that the article which he offers for sale is not adulterated." This doctrine has been followed in this state in other cases: Meyer v. State, 10 C. C. 226, affirmed 54 Ohio St. 242, 43 N. E. 164; Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350, 4 Am. St. Rep. 548; and Edelstein v. Cook, 108 Ohio St. 346, 140 N. E. 765, 31 A. L. R. 1333. While it is claimed by plain"A violation of this law by the defendant is tiff in error that these cases are not in point, negligence. It is known as negligence per se. Whether or not the defendant intended to vio- yet we feel that the principle involved is the late the law does not make any difference. same. The doctrine is likewise recognized in Whether the defendant or its servant knew other jurisdictions, but it is needless to multithat the veal was unwholesome, if it was un-ply authorities upon that point. wholesome at the time it was sold, makes no difference. Lack of intent to violate the law is no defense to the defendant. The defendant's ignorance of the condition of the veal at the time it was sold is no defense." By the pure food laws of this state it is provided, in section 12760, General Code, as follows: "Whoever sells, offers for sale or has in possession with intent to sell, diseased, corrupted, adulterated or unwholesome provisions without making the condition thereof known to the buyer, shall be fined not more than fifty dollars or imprisoned twenty days, or both." In the case of Allen v. Marvin, Adm'r, 46 W. L. B. 208, the record discloses that Minnie Marvin, the decedent, purchased from James S. Allen some ham, and upon eating the same was taken sick and died, and her husband, as administrator, brought an action in damages to recover. The answer of Allen was a general denial, with a further defense that, if the decedent died as a result of the eating of the ham, she contributed to her own injury by eating the meat in an uncooked state. Relative to the pure food laws of the state, which it was charged Allen violated in selling the ham in question, the able and experienced trial judge gave the following instructions to If this statute was violated, was the viola- the jury: tion negligence per se? As originally enacted in 1831 (29 Ohio Laws, 152), the element of knowledge was inIcluded in the statute, which read as follows: "That if any butcher or other person, shall knowingly sell any unwholesome flesh of a diseased animal, or other unwholesome provision; he or she shall, upon conviction thereof, be fined in any sum not exceeding fifty dollars." In 1896 this statute was amended (92 Ohio Laws, 97), as a result of which the element of knowledge on the part of the seller was eliminated. The cognate section, section 5778, General Code, originally passed in 1884, 81 Ohio Laws, 67, was before this court in the case of State v. Kelly, 54 Ohio St. 166, 43 N. E. 163, wherein it was held: "1. An affidavit to charge a violation of the Act of March 20, 1884 (section 8805, Giauque's Revised Statutes), 'to provide against the adulteration of food and drugs,' need not charge that an adulterated article of food is sold to be used as human food. "2. In a prosecution under said act, it is not a defense that the accused is ignorant of the adulteration of the article which he sells or offers for sale." In the body of the opinion, Shauck, J., speaking for the court, said, at page 180, 43 "This act before spoken of, in relation to pure food, as well as the common law of this state, has placed upon the seller of meats the burden of duty in relation to its purity and freedom from disease, in effect amounting to a warranty that it is not diseased, and the buyer has the right to place some reliance on the soundness of meat purchased from said seller. And this conclusion that the law makes will be considered by you in connection with all the other matters in determining this question of the claimed negligence of Mrs. Marvin." The court further charged the jury upon the question of the contributory negligence of Minnie Marvin, the decedent, and the jury rendered a verdict in favor of the defendant. The case was taken to the Circuit Court on error, where the judgment below was reversed, on the ground that: "The court erred in its charge to the jury, in which it charged the jury that the question of contributory negligence on part of plaintiff, as to whether she used due caution or ordinary care in eating the meat in a raw or partly cooked state, was a question for the jury; that, there being no proof showing that said Minnie Marvin had knowledge of the meat in question being diseased, it was not negligence on her part to eat the same." On error to the Supreme Court, the judg (146 N.E.) "The Pure Food and Drug Act is a general police regulation, recognizing that the sale of adulterated foodstuff is a constant menace to the health of the consuming public, and the duty it enjoins upon the seller is such that a violation thereof renders him liable for special damages sustained by the consumer. that of the common pleas affirmed. Allen v. | of proportion to the extent of the injury. In Marvin, Adm'r, 64 Ohio St. 608, 61 N. E. 1139. that case it was held: [3] The question of knowledge as a defense to the sale of unwholesome meat in violation of law was directly before this court in State v. Roach, 87 Ohio St. 527, 102 N. E. 1132, wherein the defendant in error Roach had been charged with the sale of unwholesome meat. The trial court charged that if the accused did not know the meat was unwholesome the jury should return a verdict of not guilty, and instructed the jury: "You must bring knowledge home to the defendant that he did not act innocently or accidently, or sell by mistake, but that he knew the pork was diseased and sold it knowingly at the time; that is, knowing that it was so diseased, corrupted, or unwholesome." Upon exceptions of the prosecuting attorney to this court, the same were sustained by unanimous concurrence, upon the authority of State v. Kelly, 54 Ohio St. 166, 43 N. E. 163, and the charge as given held not to be the law. We think the evidence in this case shows a violation of the pure food law as covered by the provisions of section 12760, General Code, and that the doctrine announced in this court in Schell v. DuBois, Adm'r, 94 Ohio St. 93, 113 N. E. 664, applies in the pres, ent instance; that is, that "the violation of a statute passed for the protection of the public is negligence per se, and, where such act of negligence by a defendant is the direct and proximate cause of an injury not directly contributed to by the injured person, the defendant is liable." The sections of the Code under consideration in Schell v. DuBois, supra, and those in the case at bar, are both passed for the protection of the public, and like principles should apply. Our attention is called to a number of cases involving questions where food is sold in cans, and also to the sale of unwholesome food in dining cars, restaurants, hotels, and so on, but it must be borne in mind that the claimed unwholesome meat sold in the case at bar was open, exposed, and readily observable by the seller, who knew all about its origin and care, while in its possession, and hence does not come within the objections that are urged in the class of cases last above men tioned. We therefore do not express opinion touching the merits of a controversy that may arise wherein such cases may have more apt application. We think the matter is well put, in so far as the facts of this case are concerned, in the case of Kelley v. John R. Daily Co., 181 P. 326 (56 Mont. 63), which was an action for damages resulting from defendant's selling impure food, to wit, meat, in violation of law, where plaintiff was 37 years of age, in good health, and as a result of eating the unwholesome meat contracted bodily ailments and became practically a nervous wreck, where a recovery of $10,000 was allowed as not out "A complaint, alleging that at the time of the sale of impure food by defendant to plaintiff defendant was engaged in selling at retail, to the public generally, meat and meat products the case within the statute, and disclose the for human consumption, is sufficient to bring duty defendant owed to the public, including plaintiff, to see that its food products offered for sale were not adulterated, within the meaning of such statute." In further support of this doctrine may be cited the following cases, arising on various facts, but through all of which runs the general principle of the liability of the seller or manufacturer: Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633, 48 L. R. A. (N. S.) 213; Wilson v. J. G. & B. S. Ferguson Co., 214 Tomlinson v. Mass. 265, 101 N. E. 381; Armour & Co., 75 N. J. Law, 748, 70 A. 314, 19 L. R. A. (N. S.) 923; Parks v. C. E. Yost Pie Co., 93 Kan. 334, 144 P. 202, L. R. A. 1915C, 179; Ketterer v. Armour & Co. (D. C.) 200 F. 322; Mesh besher v. Channellene Oil & Mfg. Co., 107 Minn. 104, 119 N. W. 428, 131 Am. St. Rep. 441; Davis v. Van Camp Packing Co., 189 Iowa, 775, 176 N. W. 382 (a wellconsidered case, and extensively annotated in 17 A. L. R. 649, 689); Flessher v. Carstens Packing Co., 93 Wash. 48, 160 P. 14. In the last case, the opinion of the court, this language is pertinent: "Whether the action be called one of warranty or of negligence, it comes to the same thing. It sounds in tort. * * The negligence consists in offering stuff not known to be wholesome for sale, to the purchaser's injury." Our conclusion is that there was no error in the charge of the trial court in the matter complained of; that this construction of the pure food laws of this state has been heretofore recognized by this court. The finding of the jury that the meat complained of was unwholesome when sold to the plaintiff's mother for his immediate consumption, and such sale constituting a violation of the pure food laws of Ohio, and such violation, in the light of Schell v. DuBois, Adm'r, supra, being negligence per se, therefore the instruction of the trial court, that "the defendant's ignorance of the condition of the veal at the time it was sold is no defense," was not erroneous. An examination of this voluminous record, assisted by the able arguments and exhaustive briefs of counsel, impresses us that the case was fairly tried in the court of common pleas, and carefully reviewed in the Court. of Appeals, and that the judgment of those not guilty was entered, and the reSTE courts should be affirmed. released on recognizance. Judgment affirmed. MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, ALLEN, and CONN, JJ., concur. STATE ex rel. KNUDSON v. BISTLINE, Probate Judge. (No. 18567.) (Supreme Court of Ohio. Dec. 23, 1924.) (Syllabus by Editorial Staff.) 1. Mandamus 172-Failure to enter plea after withdrawal held without prejudice to defendant. Where defendant withdrew plea of not guilty, so as to demur and move to quash, there was no prejudicial error in proceeding to trial, without plea having been entered a second time, and hence question whether journal entry of "withdrawn" was changed to "re-entered" is immaterial on application for mandamus to compel correction. 2. Mandamus 14(3)-Not granted to compel officer to do that which he is willing to do. Mandamus will not be granted to compel trial judge to attach to bill of exceptions exhibits in prosecuting officer's custody, and not presented with the bill, where he has at all times been willing to attach them, but they have not been tendered to him. PER CURIAM. This is an action in man damus wherein the relator seeks a writ from this court, requiring the probate judge of Wood county to sign and allow what the relator claims to be a true bill of exceptions. The facts out of which the controversy grows are as follows: On or about the 7th of April, 1924, the relator, Martin Knudson, was arrested on an affidavit for the offense of illegal possession of intoxicating liquor, charged as a second offense. Upon arraignment a plea of On the 10th of April, the deer fo the relator appeared with is come. 1 James, and the record discloses thr lowing took place: "Mr. James: In this case of Suv d v. Martin Knudson, your honor. I was a s leave to withdraw the plea of mar the purpose of filing a 'motion to quash "Court: The motion to cast sme ruled. (Exceptions.) "Mr. James: You will have to go the leave to withdraw the plea of not guilt "Court: That is understood. "Mr. James: Note our exceptions. I wan to except to the ruling of the em II 14 overruling of the motion to CES EX thereupon file a 'demurrer in bed* defendant.' "Court: The demurrer is overrcled "Mr. James: We except to that 16 would like a separate examination of the w nesses, your honor. "Court: All right, we will swear then (Duly sworn.) Witnesses have to be exe separately, so you will have to step on not go very far. "Mr. Avery: I ask that Mrs. Kada M barred from the court. "Mr. James: I will say that I do not pect to use her. "Mr. Avery: That makes no difference. I may want to use her. "Mr. James: All right. (To Mrs. K 'Go outside, but do not talk to anybody i "Mr. Avery: We have the right to praed the plea of 'not guilty' having been with On (Re-entered.)" The state, to maintain the issues or 2 part called as a witness Irvin J. Reitel who, being duly sworn, testified as follows: "Direct examination by Mr. Avery: "Q. You may state your name to the court A. Irvin Reitzel. "Q. What public office do you hold at the present time? A. Sheriff. * (146 N.E.) all the testimony adduced from its considera- | hibit D, gallon glass jug, one-third full of tion for the reason that it has no jurisdiction liquid; Exhibit E, gallon glass jug; Exhibit F, in this case, and for the reason that no foun- one-half gallon glass jug containing some brown dation exists in the record thus far had in this liquid; Exhibit G, tin funnel." case upon which to base any evidence or testimony. "Court: Overruled. Exceptions. "Mr. James: We further move the court for an order discharging the defendant, and the dismissal of this charge against him. "Court: Overruled. Exceptions. The paramount questions arise in connection with the words "withdrawn" and "reentered," and the Exhibits. This action in mandamus is therefore brought to compel the probate judge to restore the word "withdrawn," and strike out the word "re-entered," and further to in fact attach the various exhibits to the bill of exceptions. [1] The matter, therefore, resolves itself into two questions: First, is the relator entitled to mandamus to compel the probate "Mr. James: The defendant rests his case. "Mr. Avery: We have no rebuttal. "Court: The court is satisfied that this man is guilty of possessing liquor, and therefore makes the finding that Martin Knudson, the defendant, is found guilty this day of possessing intoxicating liquors as charged in the affi-judge to restore the word "withdrawn," and, davit. second, to compel him to attach the various exhibits? "Mr. James: Thereupon, and within three days, the defendant files herein his motion for a new trial. "Court: Motion for new trial overruled. Exceptions. "Mr. James: We file a motion in arrest of judgment. "Court: Motion overruled. Exceptions. "Court: It is the judgment of the court that the defendant pay a fine of $2,000 and costs. "Mr. James: We ask the court to suspend execution for a period of 10 days in which to secure leave to file and perfect proceedings in error and a bill of exceptions. "Court: The defendant will give bond in the sum of $2,500." As to the plea of not guilty the journal entry of the court shows, under date of April 7: "And for plea thereto says he is not guilty, and puts himself upon the country, and the prosecuting attorney doth the like." Later the record discloses that the plea of "not guilty" was withdrawn for the purpose of filing a motion to quash, and also for the purpose of filing a demurrer, both of which not claimed that thereafter the defendant were overruled, and exceptions noted.' It is again was arraigned, or in so many words entered the plea of not guilty, but that this counsel, and that the journal when made up should show such facts. As appears of record, the journal is as follows: "This day came Ray D. Avery, prosecuting attorney of Wood county, on behalf of the Knudson, with his counsel, B. F. James, and state of Ohio; also came the defendant, Martin on application of the defendant said defendant, Martin Knudson, was permitted to withdraw his plea of not guilty heretofore entered in this cause. It appears that upon presentation and ex-matter was understood between court and amination of the bill of exceptions the probate judge changed the word "withdrawn," and wrote in the word "re-entered" in the sentence, "We have the right to proceed, the plea of not guilty having been withdrawn. (Re-entered.)" The record also shows several words changed by the probate judge, concerning which there is no great controversy between the parties; these changes being minor in character and for the purpose of making the context of the bill of exceptions more explicit and obvious. These changes are: Page 4, line 16, add "known as Exhibit A." Page 13, line 2, word "them," instead of word "that." Page 13, line 18, word "saw" for word "say." Page 13, line 21, word "saw" for word "say." Page 14, line 22, strike out letters "ion" from word "objection." Page 14, line 28, word "those," instead of word "them." Page 15, line 22, word "field," instead of word "filed." Page 16, line 2, word "saw," instead of word "was." Page 21, line 33, add the figure "1" after word "Exhibit." Page 28, line 8, add the word "intoxicating" after the word "possessing." Further, the bill of exceptions does not appear to have had the various exhibits physically attached thereto. These exhibits are: "Exhibit A, gallon glass jug containing caramel coloring; Exhibit B, one-half gallon glass bottle; Exhibit C, gallon glass bottle; Ex146 N.E.-19 "Thereupon said defendant, Martin Knudson, filed a motion to quash said affidavit, and the court being fully advised in the premises does overrule said motion to which order the defendant then and there excepted. "Thereupon said defendant filed a demurrer to said affidavit filed herein, and the court being fully advised in the premises does overrule said demurrer to which order the defendant then and there excepted. "Thereupon said defendant was rearraigned upon said affidavit filed herein, and expressly waived the reading of the same, and for plea thereto says he is not guilty, and puts himself upon the country, and the prosecuting attorney doth the like." It is to this last portion of the journal entry that the relator and defendant below objects, and complains that the same does not speak the truth, and asks this writ to compel correction thereof. How stood the defendant upon the face of this record? He had entered on April 7 a |