Friend v. Childs Dining Hall Co.

• Decision Date: 11 September 1918
• Citation: 231 Mass. 65,120 N.E. 407
• Parties: FRIEND v. CHILDS DINING HALL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 65

120 N.E. 407

FRIEND

v.CHILDS DINING HALL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 11, 1918.

Report from Superior Court, Suffolk County; Charles U. Bell, Judge.

Action by Florence S. Friend against the Childs Dining Hall Company to recover for injuries sustained by plaintiff, a customer in defendant's restaurant, whose teeth were broken by stones in a dish of baked beans, resulting in verdict for defendant. On report to the Supreme Judicial Court. Verdict directed for plaintiff.

Crosby, J., dissenting.

J. H. Baldwin and C. H. Donahue, both of Boston, for plaintiff.

FitzHenry Smith, Jr., of Boston, for defendant.

RUGG, C. J.

The plaintiff introduced evidence tending to show that the defendant kept a restaurant in Boston, which she entered and ordered of a waitress of the defendant from its menu, ‘New York baked beans and corned beef.’ This food was served to her and she sat at a table to eat it. She further testified:

‘I started to eat the food and there were two or three dark pieces which I thought were hard beans, that is baked more than the others, and I put two in my mouth and bit down hard on them and * * * I was hurt. * * * I took those things out of my mouth and found they were stones.’

There was no further evidence that the plaintiff had anything to do with the selection of the beans. She gave no instructions respecting the food other than to order it. There was no evidence of express warranty or that the defendant knew of the presence of the stones in the food. There was evidence of injury to the plaintiff. At the close of the evidence the plaintiff elected to rely upon a count for breach of an implied warranty of fitness to eat in a contract for food to be eaten on the premises of the defendant. The defendant introduced no evidence. The question is whether the plaintiff was entitled to go to the jury.

There is strong ground for holding that the contract made between one who keeps a restaurant and one who resorts there for food to be served and eaten on the premises is a sale of food. The evidence in Commonwealth v. Worcester, 126 Mass. 256, was that on two or three different occasions people resorted to the defendant's dwelling house and there were served with meals; with these and as a part thereof intoxicating liquors were provided. The price paid was single, including both food and drink. The complaint was for keeping a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors. It was held that:

‘The purchase of a meal includes all the articles that go to make up the meal. It is wholly immaterial that no specific price is attached to those articles separately. If the meal included intoxicating liquors, the purchase of a meal would be a purchase of the liquors. It would be immaterial that other articles were included in the purchase and all were charged in one collective price.’

That decision rests entirely upon common law principles as to sales and St. 1875, c. 99, § 17, then in force (now R. L. c. 100, § 64), making delivery of intoxicating liquor under certain circumstances prima facie evidence of sale, was not adverted to and very likely was not applicable to the facts there presented. Precisely the same point was held in State v. Lotti, 72 Vt. 115, 47 Atl. 392. The defendant in Commonwealth v. Warren, 160 Mass. 533, 36 N. E. 308, was charged with selling milk not of good standard quality contrary to St. 1886, c. 318, § 2. The evidence was that a guest at the inn of the defendant conducted on the American plan was served as a part of his breakfast, for which he paid a single price, with a glass of milk not of the quality required by the statute. It was said in the course of the opinion holding that the defendant might be found guilty: ‘The milk bought by the witness Kelly was purchased by and delivered to him as a part of his breakfast, and was just as much a sale as if a specific price had been put upon it, or it had been bought and paid for by itself.’ Similar decisions have been made by other courts. In People v. Clair, 221 N. Y. 108, 116 N. E. 868, L. R. A. 1917F, 766, it was held that the serving of partridges by a hotel keeper to guests who paid for board and room at the rate of $2 per day, was a sale as matter of law in violation of a statute which provided that such game should not be sold, offered for sale or possessed for sale for food purposes. A similar decision was rendered in Commonwealth v. Phoenix Hotel Co., 157 Ky. 180, 162 S. W. 823, with reference to the possession of quail by an innkeeper with intent to serve to his guests in violation of a statute which prohibited the sale of such birds. It there was said (157 Ky. at page 185, 162 S. W. at page 825):

‘The guest at the hotel or restaurant who is served with quail for compensation as certainly purchases it and the proprietor of the hotel or restaurant as certainly exposes it for sale and sells it as if it were purchased for compensation from a dealer who had it for sale and was carried home by the purchaser to be served on his table.’

It was decided in Commonwealth v. Miller, 131 Pa. 118, 18 Atl. 938,6 L. R. A. 633, that where the keeper of a restaurant served oleomargarine with a meal to a guest, who was charged and paid 50 cents for the meal, there was a sale within the terms of a statute which prohibited the sale of oleomargarine. In view of these decisions it would be difficult for this court to hold that the transaction arising from a contract to serve to a guest food to be eaten by him upon the premises of the keeper of an eating house is not a sale. If it is a sale, then plainly it is governed by the Sales Act, St. 1908, c. 237, § 15(1), which is in these words:

‘Where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.’

It is manifest that at least it might be inferred, from the relations of the parties, that the guest who asks to be served food upon the premises of one who is the keeper of a restaurant makes known as the particular purpose for which the food is required that it is then and there to be eaten, and that he relies upon the latter's skill or judgment in the selection and preparation of the food. Hence there would be an implied warranty that it was reasonably fit for such purpose.

If the transaction is a sale, the rule is the same apart from the Sales Act. That was settled after great consideration in Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481,15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436,15 Ann. Cas. 1076, a case decided before the Sales Act took effect. If there was held (198 Mass. p. 284, 84 N. E. 481,15 L. R. A. [N. S.] 884, 126 Am. St. Rep. 436,15 Ann. Cas. 1076) that the English rule as to implied condition of soundness in the sale of food by a dealer prevails here. That rule was stated (198 Mass. at pages 280, 281,84 N. E. at pages 481, 485 [15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436,15 Ann. Cas. 1076]) in these words:

‘The rule now established in England is that, in the sale of an article of food by one not a dealer, there is no implied condition or warranty that it is fit to be eaten. * * * Since the Sale of Goods Act, if the sale is made by one not a dealer, there is no liability, by force of section 14. If the sale is by a dealer and the selection of food is left to him, it is an implied term or condition of the sale that the provisions sold shall be fit for food whether supplied under a pre-existing contract * * * or in response to an order not given in person, * * * or even when the order is given in person in the dealer's shop, provided * * * that the selection is left to the dealer.’

But there is authority to the effect that, when food is furnished to a guest by the keeper of a restaurant or inn, the transaction does not constitute a sale, that the title to the food does not pass, that the customer may consume so much as he pleases, but that he cannot carry away of the portion ordered that which he does not eat, or give or sell it to another; and that the charge made is not for the food alone, but includes the service rendered and the providing of a place in which to eat. It is stated in Beal on Innkeepers, § 169:

‘The title to food never passes as a result of the ordinary transaction of supplying food to a guest; or, as it was quaintly put in an old case ‘He does not sell but utters his provision.’' Parker v. Flint, 12 Mod. 254.

Therefore it seems desirable to consider somewhat the relation of the guest to a keeper of a place where good is served for immediate consumption. It is ancient law that when one resorts to a tavern, inn or eating place, there for a consideration to be served with food for immediate consumption, and is received as a guest by the keeper, a duty is implied that the food shall be fit to eat. It has been said that:

‘If a man goes into a tavern for refreshment, and corrupt drink or meat is there sold to him, which occasions his sickness, an action clearly lies against the tavern keeper; * * * an action lies against him without express warranty for it is a warranty in law.’ Keilway's Rep. 91; Burnby v. Bollett, 16 M. & W. 644, 646, 647, 654, where are the references to numerous older cases. ‘A taverner or vinter was bound as such to sell wholesome food and drink.’ Ames, Lectures on Legal History, p. 137, citing also cases from the Year Books. ‘If a man sells victuals which is corrupt without warranty an action lies, because it is aginst the commonwealth.’ Rosevel v. Vaughan, Cro. Jac. 196, 197.

To the same effect in substance are 1 Roll. Abr. 95, 1 Fitzherbert's Natura Brevium, 94C, note, supposed to be by Lord Chief Justice Hale, 1 Blackstone's Com. 430, and 3 Blackstone's Com. 166. See Williston...