Kenower v. Hotels Statler Co.

• Citation: 124 F.2d 658
• Decision Date: 09 January 1942
• Docket Number: No. 8758.,8758.
• Parties: KENOWER v. HOTELS STATLER CO., Inc., et al.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

124 F.2d 658 (1942)

KENOWER v. HOTELS STATLER CO., Inc., et al.

No. 8758.

Circuit Court of Appeals, Sixth Circuit.

January 9, 1942.

Victor H. Hampton, of Detroit, Mich. (Clark C. Coulter and Victor H. Hampton, both of Detroit, Mich., on the brief), for appellant.

Dean Alexander, of Detroit, Mich. (Alexander, McCaslin & Cholette and Clarence C. Donovan, all of Detroit, Mich., on the brief), for appellees.

Before HAMILTON, MARTIN, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

John L. Kenower, appellant, herein referred to as plaintiff, brought suit against Hotels Statler Company, Inc., for damages alleged to have resulted from illness and typhoid fever, as the effect of eating clams infected with typhoid bacilli, which were served to him in the Hotel Statler in Detroit. Appellee, O'Neil and Hoffner, was joined, pursuant to Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, as a defendant, on pleadings filed by the original defendant, alleging that such third party was liable for damages under the allegations made by plaintiff.

On the trial, at the conclusion of plaintiff's case, the District Court directed a verdict of no cause of action on the ground that there was no evidence on which the jury could render a verdict against either of the defendants.

Plaintiff's declaration is based upon negligence and breach of warranty, specified separately in two counts. On review, it is contended that a prima facie case for breach of warranty was proved by plaintiff and that the court erred in directing a verdict.

In considering the appeal, two issues are presented: whether there was sufficient evidence that plaintiff's consumption of the food resulted in typhoid fever to require submission of the facts to the jury; and whether defendants are liable for breach of warranty.

From the evidence, it appears that on March 3, 1939, plaintiff, accompanied by a friend, had luncheon in the Hotel Statler, where he consumed the clams; that within an hour and a half, or two hours, thereafter, he suffered cramps, nausea and dysentery; that he called his doctor and was advised to take some paregoric, which he did, on the same day; that the cramps continued for a couple of days and plaintiff suffered from the dysentery and diarrhea up to the time of his serious illness, which occurred about three weeks after eating the clams. His physician had seen him in the meantime and had discussed the illness with him; and on March 23d, in response to plaintiff's call, he found him suffering acutely, accompanied with fever. Within the next few days the illness was diagnosed as typhoid fever. It appears that modern medical science has so greatly curbed the former ravages of this dangerous malady that today typhoid fever is an uncommon and rare disease; but that in spite of its infrequent visitations, the consumption of shellfish is a common source of typhoid infection in the human being. Diarrhea is a very common symptom of typhoid infection. The incubation period of the disease, from the time of first infection, ranges from 3 to 27 days; and is commonly between 7 and 21 days.

While the doctrine of res ipsa loquitur is not recognized in Michigan, we are of the opinion that, from the foregoing evidence, the jury could draw reasonable inferences that the cause of plaintiff's illness and typhoid fever resulted from the consumption of clams at the hotel on the day in question.

Plaintiff contends that he was entitled to go to the jury on a count of breach of an implied warranty that the clams were wholesome and fit for consumption. Defendant claims that under the law as declared by the courts of Michigan, an action for breach of warranty on the sale of food can be maintained only upon proof of negligence; and that, to sustain the action there must be shown a want of a high degree of care.

No negligence was shown in this case. It is impossible to ascertain whether clams are infected with typhoid bacilli, unless each clam is subjected to a bacteriological examination by microscope. The health of an infected clam is not affected by the bacilli. In all tests other than microscopic — such as striking the clams together to ascertain soundness — infected clams appear healthy. Obviously, it is impossible for producers or vendors of clams to know that they are not infected with typhoid. The most that can be done to insure that clams are fit for human consumption, without destroying the marketability of the product, is to use the highest degree of care to see that they grow in healthy beds and in uncontaminated water.

On the part of defendants, it is contended that no cases of typhoid fever in Detroit have ever before been known to result from clams furnished by O'Neil and Hoffner during their many years of business; that no other typhoid cases resulted from clams sold to, or furnished by, the Hotel Statler at the time in question; that plaintiff's typhoid fever could have resulted from other sources of infection; that the highest degree of care was exercised by defendants; and that to hold defendants liable in this case would establish a rule easily enabling dishonest persons to perpetrate frauds on purveyors of food, and mulct them in heavy damages. However persuasive these contentions be, the facts are for the jury; and decision of the legal questions in the controversy is to be controlled by Michigan authority if precedents are available. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.

In the early case of Hoover et al. v. Peters, 18 Mich. 51, a vendor who sold carcasses of hogs, sued for the purchase price. Breach of warranty was interposed as a defense, it being claimed that the pork was purchased for use as food in defendant's lumber camps, and that it was unfit for consumption. Plaintiff had judgment, and on appeal, it was argued by appellee that cases which trench upon the maxim, caveat emptor, were unsound; that the vendor in the case was not a victualer and no better qualified to judge of the wholesomeness of the pork than the buyer; and that there was nothing about plaintiff's calling or experience upon which the public had a right to rely as a warranty of the soundness of his commodity. The judgment of the trial court was, however, reversed and Mr. Justice Campbell, speaking for the court, after observing that the circuit judge had instructed the jury that where a person, "as in this case, sells goods in open market, there is no such implied warranty of soundness, and no liability for faults in the absence of deceit, fraud or special warranty," said:

"It seems to be settled by many authorities that no implied warranty of soundness arises where such articles are purchased by a dealer to sell again.

"Whether this rule arises from the fact that any injury from the use of the articles is likely to be remote and not readily traced out, or because, where his purpose in buying is merely speculative, one commodity is not to be distinguished from another in its incidents as merchandise, or what special reasons have led to it, cannot easily be determined. It stands as a recognized doctrine, whatever may have been its reasons.

"But where property is bought for a particular purpose, and only because of its supposed fitness for that, there are many cases in which a warranty is implied, unless the purchaser has seen fit to act upon his own responsibility and judgment. And where articles of food are bought for consumption, and the vendor sells them for that express purpose, the consequences of unsoundness are so dangerous to health and life, and the failure of consideration is so complete, that we think the rule which has often been recognized, that such sales are warranted, is not only reasonable but essential to public safety. There may be sellers who are not much skilled, and there may be purchasers able to judge for themselves, but in sales of provisions the seller is generally so much better able than the buyer to judge of quality and condition, that if a general rule is to be adopted, it is safer to hold the vendor to a strict accountability than to throw the risk on the purchaser. The reason given by the New York authorities, in favor of health and personal safety, is much more satisfactory than the purely commercial considerations which take no account of these important interests. While the...