Kenney v. Len

• Decision Date: 06 January 1925
• Citation: 128 A. 343
• Parties: KENNEY v. WONG LEN et al.
• Court: New Hampshire Supreme Court

128 A. 343

KENNEY

v. WONG LEN et al.

Supreme Court of New Hampshire. Hillsborough.

Jan. 6, 1925.

Transferred from Superior Court, Hillsborough County; Branch, Judge.

Action on the case by Nellie Kenney against Wong Len and another. Case transferred on exceptions by both parties. Plaintiff's exceptions overruled. Defendants' exceptions sustained in part, and in part overruled. Verdict set-aside.

Case for negligence for personal injuries. While a customer at the defendants' restaurant, the plaintiff ate some food containing a dead mouse. Its discovery made her sick, and a nervous shock resulted. Trial by jury and verdict for plaintiff. The defendants excepted to the denial of their motion for a directed verdict in their favor, and during the trial took other exceptions referred to in the opinion. To the withdrawal of a count in the writ for breach of warranty the plaintiff excepted. Further facts appear in the opinion.

Doyle & Doyle and Paul J. Doyle, all of Nashua, for plaintiff.

Warren, Howe & Wilson and De Witt C. Howe, all of Manchester, for defendants.

ALLEN, J. I. In support of the exception to the denial of the motion for a directed verdict the defendants contend, first, that they were under no duty to anticipate the presence of the mouse in the food, and, second, that there is no recovery for fright caused by negligence in the absence of immediate physical injury.

As to the first ground, there was a duty to anticipate, if ordinary men in the defendants' place would have foreseen the danger in acting for their customers' safety. Whether they would or not is a question of fact to be determined affirmatively only if there is evidence tending to show it. As a form and expression of due care, anticipation is a precautionary consideration of what may happen in a situation for which the party is under responsibility. When there is no occasion to anticipate, the ordinary man does not. As usually phrased, there is no duty to anticipate against dangers not reasonably to be foreseen. This does not mean that a particular danger in a particular form should be foreseen as probably involved in the situation. If there is some general probability of danger, the duty to anticipate it and give it attention arises according to the circumstances. Anticipation is not confined to expectation. The circumstances such as the extent, frequency, and seriousness of the danger and the practical expediency of action to overcome or minimize it bear on the ordinary man's action in this respect. Consideration followed by protective action according as the danger is seen to be serious and measures to meet it are available is called for as the practice of ordinary men in providing for the safety of others towards whom there is the legal duty to use care. The infrequency of the danger or even the lack of its previous occurrence in the experience of the party charged is not a decisive test. He is chargeable with the common knowledge about such things and the knowledge the ordinary man would take care to acquire. When a danger, though unusual, is fraught with serious consequences, there is reason for saying ordinary men might anticipate it to manifest itself now and then, though not expecting it in a given instance, and so adopt some measures or system adapted to overcome it. The probable occasional outbreak of the danger makes it a present and existing menace.

"Whenever one person supplies goods or machinery or the like, for the purpose of their being used by another person under circumstances that every one of ordinary sense would, if he thought, recognize at once that, unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying the thing." Heaven v. Pender, L. R. 11 Q. B. D. 503.

There is no conflict in the cases in this state in which the duty to anticipate has been considered. In some, such as Gage v. Railroad, 77 N. H. 289, 90 A. 855, L. R. A. 1915A, 363, Shea v. Kailroad, 09 N. H. 361, 41 A. 774, Hodges v. J. Spaulding & Sons, Co., 81 N. H. 101, 122 A. 794, and Zajac v. Amoskeag Mfg. Co., 81 N. H. 257, 124 A. 792, evidence tending to show the existence of the duty was found lacking; while in others, such as Fisher v. Railroad, 75 N. H. 184. 72 A. 212, Blaisdell v. Paper Co., 75 N. H. 497, 77 A. 485, 139 Am. St. Rep. 735, Bassett v. Dodge, 77 N. H. 602, 93 A. 967, True v. Creamery, 72 N. H. 154, 55 A. 893, and ESla v. Cable Co., 71 N. H. 1, 51 A. 281, such evidence appeared.

Whether there was evidence here of the duty to anticipate depends on how the mouse got into the food. This must be shown, since neither the existence of the duty nor the failure to perform it as a cause of the injury can be found from conjecture. It is not necessary to consider whether the unexplained presence of the mouse in the food would justify a finding that it was caused by the failure to anticipate it and guard against it. If the doctrine of res ipsa loquitur may be invoked in some cases, there is no occasion to rely on it here. Analysis of the evidence shows that a reasonable rather than conjectural finding of what happened may be made.

The mouse was in some roast chicken dressing prepared by the defendants' cook and containing various ingredients including bread crumbs. The bread was in loaves and kept in a covered can. By his usual practice the cook broke a loaf into crumbs with his hands, the crumbs dropping into a pan, after which some ham and bacon sliced, and then steamed were mixed with the crumbs. Oil and seasoning were added, followed by baking the dressing for about half an hour. It was after that kept in a covered receptacle containing hot water so it would remain warm and moist until served. When the waiter had an order, the cook removed the lid of the receptacle and with a spoon took out the dressing and put it on a platter for separate service for each customer. The waiter then put chicken on the dressing and took the platter to the customer's table.

With consideration given to the timidity of mice when persons are present and active as a matter of common knowledge, in the process of cooking the dressing and in the subsequent service of it the evidence shows such exclusive control by the cook and waiter and isolation from external contacts and invasions as to justify an inference that during the process the mouse did not find its way into the dressing. This makes it a reasonable, rather than conjectural, deduction that it got into the dressing in its making. In this the process was such a continous and exclusive activity of the cook as to eliminate conjecture from a finding that the mouse was inactive, if not inanimate, when made a part of the dressing, and from the further finding that, however it then got into the dressing, it had such corporeal attributes of form, size, and color that its entrance into or presence in the dressing would not have been elusive. Whether the mouse was imbedded in the bread which passed through the cook's hands while broken into crumbs or whether its entrance into the dressing came about in some other way during its preparation need not be definitely determined, since the evidence tends to show due care would have disclosed it however it gained entrance. The conclusion that keeping ordinary watch and giving ordinary attention while the dressing was made in its usual way would have disclosed the presence of the mouse may therefore reasonably be drawn.

If the mouse got into the dressing during its preparation, it then remains to be considered if the defendants can be found in fault for not anticipating it. The test of liability is, not whether the particular mouse which entered the dressing was to be looked out for, but whether there was such a chance of improper things entering it that ordinary men would be on the watch for them. It is common knowledge that foreign substances at times do get into food, and that it is important that food be fit to eat. It may be assumed that the usual way of making the dressing by breaking the bread into crumbs and preparing and adding the other ingredients was for culinary rather than inspective purposes. Yet at the same time they were largely acts of inspective force; simple, practical, and efficient. The situation presents a case where an ordinary method of doing the work furnished protection. While this is not alone enough to prove negligence (Zajac v. Amoskeag Mfg. Co., supra), it is nevertheless evidence bearing on the question of anticipation in showing inspection to be feasible and practical. Evidence that available inspection is effective tends to show ordinary men would use it. It is also common knowledge that customers of a restaurant do not as a matter of practice inspect their food, nor are they expected to do so. From these matters of common knowledge and from these inferences, if made, a jury might properly find the defendants should have anticipated the danger and thereupon maintained a reasonable inspection so the mouse would have been discovered.

Whether reasonable inspection would disclose the harmful substance is well illustrated in the difference between the two cases of Ash v. Childs Dining Hall Co., 231 Mass. 86, 120 N. E. 396, 4 A. L. R. 1558, and Tonsman v. Greenglass, 248 Mass, 275, 142 N. E. 756. In the former case a tack concealed in blueberry pie was of such color, size, and shape "that it would naturally escape the most careful scrutiny." In the latter case a thin piece of iron half an inch square imbedded in a loaf of bread was of such size and shape that its presence might be found due to negligent inspection in making the bread.

In Blaisdell v. Paper Co., supra, the court says:

"In view of the extreme hazard which would be created by the presence of such an...