Valeri v. Pullman Co.

• Decision Date: 30 December 1914
• Parties: VALERI v. PULLMAN CO.
• Court: U.S. District Court — Southern District of New York

218 F. 519

VALERI v. PULLMAN CO.

United States District Court, S.D. New York.

December 30, 1914

At Law. Action by Delia M. Valeri against the Pullman Company. On motion by defendant to dismiss complaint. Motion sustained. Carl S. Brown, of New York City (Grant Hoerner and Adolph Bangser, both of New York City, of counsel), for plaintiff.

Worcester Williams & Saxe, of New York City (Edwin D. Worcester, of New York City, of counsel), for defendant.

AUGUSTUS N. HAND, District Judge.

This was an action to recover damages for personal injuries sustained by plaintiff through eating food served to her by defendant upon its buffet car. The complaint alleged that the food was unwholesome, but contained no allegation of negligence on the part of the defendant, and sought to recover upon an alleged implied warranty that the food was fit for consumption. At the close of the entire case defendant moved to dismiss the complaint upon the ground:

'That even if the food were unwholesome, there is nothing to hold the defendant liable for the existence of that fact; that the defendant was not liable for any express or implied warranty as to the wholesomeness of the food served, but was only liable for due care and diligence in the careful preparation of the same; and that no evidence whatever has been given to show that the defendant failed in any respect in the care and diligence required in the preparation and serving of that food.'

The court reserved its decision upon this ground and took a special verdict, which resulted in a finding by the jury that the food served to the plaintiff by the defendant was unwholesome, that the injuries complained of by the plaintiff were the proximate result of consuming such food, and that the plaintiff was entitled to $2,000 for injuries thus sustained. The defendant now asks to have the complaint dismissed, and the plaintiff moves for judgment on the special verdict. 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.

It seems to me idle, in determining this question, to seek analogies derived from implied warranties in sales of goods. In the first place, one is met at the outset by the legal theory which has long prevailed that food furnished by a victualer is not a sale. As early as 1701 Sergeant Wright, in the case of Parker v. Flint, 12 Mod. 254, noted that an innkeeper 'does not sell but utters his provision'; and Prof. Beale, in his book on Innkeepers and Hotels, Sec. 169, says:

'As an innkeeper does not lease his rooms, so he does not sell the food he supplies to his guests. It is his duty to supply such food as the guest needs, and the corresponding right of the guest is to consume the food he needs and to take no more. Having finished his meal, he has no right to take food from the table, even the uneaten portion of the food supplied to him; nor can he claim a certain portion of food as his own, to be handed over to another in case he chooses not to consume it himself. The title to food never passes as a result of an ordinary transaction of supplying food to a guest; or as it was quaintly put in one old case 'he does not sell but utters his provision.''

The same doctrine was applied to the food furnished by an innkeeper in the old case of Crisp v. Pratt, Cro. Car. 549 Prof. Burdick, in his book on Sales (2d Ed. page 113), expresses a like view, and the recent case of Merrill v. Hodson, 88 Conn. 314, 91 A. 533, decided by the Supreme Court of Errors of Connecticut, also adopts the same theory.

But whether or not the transaction in question was a sale seems to me immaterial. Indeed, it is not impossible that food purchased upon a Pullman car a la carte differs from the food supplied by an innkeeper under the older custom of furnishing a meal to his guest table d'hote, and it may be that in a Pullman car, where a certain specific article of food is ordered and paid for, the transaction is a sale. But, whether or not that be the case, the law of implied warranties that articles sold are merchantable or fit for the purpose intended is totally inapplicable to such a cause of action as the present one. If the food was entirely inferior to that ordered, there would probably be upon the mercantile theory no other damage than the difference between the food furnished and good food of the sort ordered. If the food was unfit for consumption, the remedy would be an action to recover back the purchase money, if it had been paid.

This discussion is really aside from the main question in this case, and is only indulged in by reason of the fact that it has occupied the attention of the courts in so many opinions, and been discussed so fully by counsel. The case at bar comes down to this: In the absence of any specific authority in the federal decisions, is there any ground in reason for imposing upon a restaurant keeper an obligation to furnish wholesome food to his patrons at all hazards; that is to say, is his obligation that of an absolute insurer of his food? Of one thing I feel reasonably clear, that no such obligation was ever imposed upon innkeepers or victualers under the English common law. In spite of the most exhaustive briefs of counsel in this case, no decision of the English courts has been pointed out, indicating the existence of such an obligation, and it seems to me most unlikely that such an obligation was ever recognized in the common law, using that word now in a historical sense, or it would have been enforced in numerous adjudicated cases. The opportunity for actions involving the breach of such an obligation has been far too common, and the absolute liability long imposed upon an innkeeper in respect to the goods of his guests has furnished too close an analogy to such an obligation, to permit the innkeeper to escape if the obligation had ever been thought to exist at common law.

The courts have enforced certain rules of absolute liability in the case of innkeepers, common carriers, owners of vicious animals, manufacturers of poisonous drugs, and in England under the doctrine enunciated in Rylands v. Fletcher, 3 H.L. 330, in the case of persons who bring upon their lands elements...