Heise v. Gillette

Decision Date29 October 1925
Docket Number12,186
Citation149 N.E. 182,83 Ind.App. 551
PartiesHEISE v. GILLETTE ET AL
CourtIndiana Appellate Court

From Marion Superior Court (A 23,731); Sidney S. Miller, Judge.

Action by Dorothy Irene Gillette against George Heise and another. From a judgment for plaintiff against the named defendant, he appeals.

Affirmed.

John W Holtzman and John J. Kelly, for appellant.

Arthur R. Robinson, Frank A. Symmes, Garth B. Melson and Donald F LaFuze, for named appellee.

OPINION

NICHOLS, P. J.

Action by appellee Dorothy Irene Gillette to recover damages from appellant and from the William H. Block Company on account of having eaten a minced chicken sandwich at appellant's restaurant conducted in basement of the store of said Block company, which sandwich, she alleges, was unwholesome and caused her to become ill and sick with ptomaine poisoning. Appellant and his codefendant, the William H. Block Company answered the complaint by general denial. There was a trial by the court, without a jury, and a finding and judgment was entered in appellee's favor and against appellant, assessing her damages at four hundred dollars and costs and judgment in favor of the Block company against appellee Gillette for costs.

The only error assigned by appellant is that the court erred in overruling his motion for a new trial.

It is averred in the complaint, so far as here involved, that on or about January 1, 1923, and for several years prior thereto, appellant was the owner, lessee, manager and operator of a certain restaurant and confectionery serving various foods, drinks and refreshments to the public, located in the basement of the department store of the Block company, in Indianapolis, Indiana. That on or about said date, appellee entered said restaurant and confectionery, and then and there purchased and paid for a certain minced chicken sandwich, which she then and there ate. That said chicken sandwich was unwholesome, spoiled, decomposed, decayed, poisonous and unfit for food or for human consumption, in that it contained and was made up of certain poisonous and deleterious ingredients. That, by reason of appellee's eating said sandwich, she became seriously and violently sick and ill from ptomaine poisoning and was confined to her bed in great pain and suffering for more than a week, and was put to great expense for medical and physician's attention and services and medicine and fees, and was put to the expense and loss of a month's time from her position as a stenographer, by reason of all of which said appellee was damaged in the sum of $ 1,000.

Appellant's reasons for a new trial were that the decision of the court was not sustained by sufficient evidence, and that it was contrary to law. It is appellant's contention that appellee, in order to recover, was bound to allege and prove negligence on the part of appellant, and he contends that she did neither, while appellee contends that the question of appellant's negligence is not involved, and relies upon an implied warranty which she says arises from the facts alleged and proved.

Appellant says that one serving food to be immediately consumed on the premises is neither an insurer of the fitness and wholesomeness of the food so served, nor liable upon an implied warranty; that there is no sale of the food served or furnished, and that the law of sales relating to implied warranties does not apply, citing authorities to sustain his contention. But we are not favorably impressed with appellant's contention, nor with the force of the authorities cited. Certainly, they can have no application to modern conditions and methods of service...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT