Rowe v. Louisville & N. R. Co.

• Docket Number: 13361.
• Decision Date: 05 October 1922
• Citation: 113 S.E. 823,29 Ga.App. 151
• Parties: ROWE v. LOUISVILLE & N. R. CO.
• Court: Georgia Court of Appeals

113 S.E. 823

29 Ga.App. 151

ROWE v. LOUISVILLE & N. R. CO.

No. 13361.

Court of Appeals of Georgia, First Division

October 5, 1922

Syllabus by the Court.

A railroad company which runs dining cars attached to its passenger trains is not an insurer of the wholesomeness of the food served therein, and in case of injury to a patron from the consumption of deleterious food so furnished is liable only where there was a failure to exercise reasonable care in respect to its quality and preparation.

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Action by Mrs. W. T. Rowe against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Thomas J. Lewis and John T. Dennis, both of Atlanta, for plaintiff in error.

Tye Peeples & Tye, of Atlanta, for defendant in error.

BLOODWORTH J.

Mrs. W T. Rowe brought suit against the Louisville & Nashville Railroad Company, alleging that while traveling on said road she went for her evening meal into a dining car attached to the train and which was operated by the defendant; that she was served with food which was "spoiled and contaminated to such an extent as to render it unfit for food"; that "defendant was negligent in selling to petitioner an impure, contaminated, and spoiled article of food, without giving her any warning of its condition"; and that by eating said food she was "rendered sick and ill with a sickness or disease known as ptomaine poisoning." The trial of the case resulted in a verdict for the defendant and the plaintiff excepted. In the brief of counsel for the plaintiff special grounds 1 and 4 of the motion for a new trial are expressly abandoned, leaving for consideration the general grounds and special grounds 2 and 3. These special grounds alleged that the court erred in instructing the jury as follows:

(2) "The burden of proof is on the plaintiff to show that she was injured by unwholesome food served to her in the dining car of the defendant as alleged by her, and also that the defendant was lacking in ordinary care in respect to the quality and preparation of the food furnished her; and that in the exercise of ordinary care the defendant should have known that such food was of a character, or so prepared, as that its service to plaintiff would be likely to cause her injury."

(3) "It was the duty of the defendant company, in furnishing meals to passengers and to this plaintiff, to furnish a meal on the train at that time and to furnish her wholesome food, and it must exercise ordinary care to do that, and ordinary care means that care that every prudent person would exercise under the same or similar circumstances. You perceive that the defendant would not be liable from the fact that the food was impure, that is, it would not be necessarily liable because the food was impure but it was bound to exercise ordinary care to furnish good food, wholesome food, and, if it did, it would not be liable on that ground. The defendant, under the law, is not an insurer of the wholesomeness of food served in its dining car, and can only be held liable for injury to a patron of said car from the service of deleterious food so furnished through failure on its part to exercise ordinary care in respect to the quality and preparation of such food. And, as I stated before, if the defendant did furnish her unwholesome food, and if you believed it exercised ordinary care in preparation and presentation to her of this food, it would not be liable."

This case is very much like that of Valeri v. Pullman Co. (D. C.) 218 F. 519, which "was an action to recover damages for personal injuries sustained by plaintiff through eating food served to her by defendant upon its buffet car." In this case, as in the Valeri Case, "the question, squarely raised, therefore, is whether the liability of the defendant, who apparently differs in no wise from any other person keeping a restaurant, is that of an insurer of its food, or whether it is only liable to exercise reasonable care in providing and serving such food as it offers for consumption." In the brief of counsel for the plaintiff it is insisted that the court should have given section 4135 of the Civil Code of 1910 in charge to the jury, on the law of implied warranty, and should have charged the jury as follows:

"In the transaction that took place between Mrs. Rowe and the Louisville & Nashville Railroad Company at the time she was served a meal on its train between Montgomery and Birmingham, the railroad impliedly contracted with her to sell the articles of food which they warranted to be merchantable and reasonably suited for the use intended."

In this contention we cannot agree with counsel. The section of the Code referred to relates to private sales, and does not apply where meals are served in a dining car, as in this case. Prof. Beale, in his book on Innkeepers (section 169), says:

"The innkeeper is not an insurer of the quality of his food, but he would be liable for knowingly or negligently furnishing bad or deleterious food."

In Loucks v. Morley, 39 Cal.App. 578, 179 P. 532, Mr. Justice Thomas said:

"We are satisfied, therefore, that the overwhelming weight of authority, both in England and America, supports our present conclusion, viz., that in such cases as are supported by the facts under consideration here, that there is no implied warranty of the quality of food furnished by a restaurant keeper to a customer for immediate consumption, since the transaction does not constitute a sale but a rendition of service."

In Merrill v. Hodson, 88 Conn. 317, 318, 91 A. 534, L.R.A. 1915B, 481, Ann.Cas. 1916D, 917, a case in which food was furnished by a restaurant keeper to a customer, Chief Justice Prentice said:

"A restaurant keeper differs from an innkeeper in that he furnishes only food, or food and drink, and not lodging or shelter. Beale on Innkeepers, §§ 35, 301. In so far as the character of the service performed by a restaurant keeper

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