Arnaud's Restaurant v. Cotter

• Decision Date: 16 August 1954
• Docket Number: No. 14658.,14658.
• Parties: ARNAUD'S RESTAURANT, Inc., et al. v. COTTER.
• Court: U.S. Court of Appeals — Fifth Circuit

212 F.2d 883 (1954)

ARNAUD'S RESTAURANT, Inc., et al. v. COTTER.

No. 14658.

United States Court of Appeals, Fifth Circuit.

May 20, 1954.

Rehearing Denied August 16, 1954.

Henry Jacobs, Harry Nowalsky, A. Miles Coe, Richard B. Montgomery, Jr., and Cicero C. Sessions, New Orleans, La., for appellants.

A. J. Waechter, Jr., and Michael J. Molony, Jr., New Orleans, La. (Jones, Walker & Waechter, New Orleans, La., of counsel), for appellee.

Before BORAH and RUSSELL, Circuit Judges, and DAWKINS, District Judge.

RUSSELL, Circuit Judge.

The amended complaint alleged in substance that the plaintiff went to Arnaud's Restaurant in New Orleans, Louisiana, and was there served an order of pompano en papilotte which, by reason of the negligence of the latter, contained a large, solid piece of crab shell which was a substance foreign to that dish; also that Arnaud's represented to the public that the food served was fit and proper for human consumption; that the plaintiff swallowed the piece of crab shell with results, detailed in the complaint, which caused him damages and injuries and expense. The answer of the defendants, Arnaud's Restaurant, Inc., and its insurer, London Guarantee and Accident Company, Ltd., raised the general issue and in the alternative alleged that the plaintiff was guilty of contributory negligence. The evidence adduced at the trial, insofar as it is pertinent here, is related below.

On January 5, 1951, plaintiff, his wife and two friends, arrived in New Orleans, Louisiana, to spend the weekend. That evening at about 8 o'clock they went to Arnaud's Restaurant for their evening meal. Each of them ordered and was served a fish dish known as pompano en papilotte which they consumed on the premises. Shortly after leaving the restaurant plaintiff complained of a "bad case of indigestion". He and Mrs. Cotter returned to their hotel room at about ten o'clock and plaintiff, seeking relief from what he described as a "marvelous case of indigestion", took some magnesia tablets. The next morning, after a restless sleep, he was suffering from pains in his chest, gagging and belching. During the day he took tums and pepsin to relieve his pain. Later he gave himself an enema and took a dose of sal hepatica, but was still not relieved of his discomfort. That evening a doctor was called and on his orders plaintiff was removed to the hospital.

Plaintiff's ailment was at first diagnosed as coronary thrombosis and he was administered treatment accordingly. However, further examination disclosed that he was suffering from a perforation of the esophagus. After he had been hospitalized for several days, plaintiff complained of severe rectal pains. Upon examination by the attending physician it was discovered that a very hard object was lying horizontally across his upper rectum. The object, a piece of sharp crab shell approximately two to three centimeters in size, was dislodged and removed from the rectum. The medical and surgical treatment which followed¹ extended over a period of several months at an expense of approximately $13,800.

There was testimony to the effect that the injury to plaintiff's esophagus could have been, and very likely was, caused by the ingestion of the crab shell. It was the opinion of his medical experts that the perforation was caused by a trauma and could not have been caused by disease. Symptoms occasioned by a traumatic perforation of the esophagus occur immediately. Since the plaintiff had not eaten anything between the time he ate a vegetable plate for lunch and his visit to Arnaud's, it was the theory of his case that he must have ingested the crab shell during his evening meal, otherwise the symptoms of which he complained would necessarily have occurred earlier.

The defendants, in support of their defense that it was impossible for there to have been any crab shell in the pompano en papilotte, as contended by plaintiff, offered evidence to show how the food was prepared and the precautions which were generally taken to prevent such an accident. According to this evidence no crab meat is used in preparing pompano as it is served at Arnaud's and all reasonable precautions are taken to prevent foreign matter from finding its way into the prepared dish.

The case was submitted to the jury on special issues. It rendered a verdict finding that the crab shell came from the pompano en papilotte, that it was the cause of the injury suffered by plaintiff, that plaintiff was not negligent in failing to detect the presence of the crab shell before he swallowed it and that his damages were $55,500. The trial court overruled the defendants' motion for a judgment non obstante veredicto, ordered that a remittitur in the amount of $10,000 be filed and, after the filing of the remittitur, entered judgment for the plaintiff in the amount of $45,500.

For the purpose of this appeal the defendants apparently concede that the evidence is sufficient to sustain the findings of the jury that plaintiff ingested the crab shell at Arnaud's and that it caused his injury. In our view there was ample evidence before the jury to justify these findings. It is contended, however, that the court erred in trying the case on the theory of implied warranty and in holding that plaintiff was not required to prove that Arnaud's was guilty of negligence, either actually or by the application of the doctrine of res ipsa loquitur. It is further contended that the verdict was so excessive as to show that the jury was prejudiced. The defendants allude to the plaintiff's failure to discover the crab shell before he swallowed it and urge that this constituted contributory negligence as a matter of law.

The primary question for determination is whether under the decisional law of Louisiana the proprietor of a public eating place who serves a food fabricated by him and containing a foreign substance to a paying guest for immediate consumption on the premises is under an absolute liability for damages proximately resulting from the impurity, under the theory of an implied warranty of fitness. Our review of the authorities² convinces us that such is the law of Louisiana. Consequently, the trial court correctly enforced and applied this principle in the trial of the present case.

This rule of liability was first announced in Doyle v. Fuerst & Kraemer, 129 La. 838, 56 So. 906, 907, 40 L.R.A., N.S., 480, where the Supreme Court of Louisiana held that the seller of food at a public eating place is conclusively presumed to know any...