Picard v. Smith

• Decision Date: 07 April 1930
• Docket Number: No. 4944.,4944.
• Citation: 59 App. DC 291,40 F.2d 803
• Parties: PICARD et al. v. SMITH.
• Court: U.S. Court of Appeals — District of Columbia Circuit

59 App. DC 291, 40 F.2d 803 (1930)

PICARD et al. v. SMITH.

No. 4944.

Court of Appeals of District of Columbia.

Argued March 6, 1930.

Decided April 7, 1930.

Morris Simon, Lawrence Koenigsberger, Eugene Young, and Selig Brez, all of Washington, D. C., for appellants.

S. T. Ansell and E. S. Bailey, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

ROBB, Associate Justice.

Appeal from a judgment in the Supreme Court of the District for the plaintiff in the sum of $10,000 upon the verdict of a jury in an action of tort.

The declaration alleges that it was the duty of the defendants as proprietors of Harvey's Restaurant in the District of Columbia "to serve plaintiff's intestate with wholesome food, fit for human consumption, * * * but in violation thereof, the defendants by their servant, servants, employees, and agents, carelessly, negligently, wrongfully, and unlawfully served to the plaintiff's intestate tainted, corrupt, poisonous and unwholesome oysters, unfit for human consumption, which the defendants, their servant, servants, agents, or employees knew or by the exercise of ordinary care and prudence should have known were tainted, corrupt, poisonous, unwholesome, and unfit for human consumption, and that the plaintiff's intestate ate the said oysters so served to him, * * *" and that his death was caused thereby on the 29th of April, 1926.

At the close of plaintiff's evidence, defendants moved for a directed verdict. The motion was overruled. Defendants thereupon introduced evidence.

At the close of all the evidence, defendants again interposed a motion to dismiss, on two grounds: First, "that there was no evidence that the plaintiff's intestate came to his death as the result of eating any oysters furnished by the defendants," and, second, "that there was no evidence tending to show that the defendants were guilty of any negligence." The action of the court in overruling this motion is here assigned as error.

By introducing evidence after the denial, at the close of plaintiff's case, of their motion for a directed verdict, the defendants waived their exception. Washington Utilities Co. v. Wadley, 44 App. D. C. 176; McCabe & Steen Co. v. Wilson, 209 U. S. 275, 28 S. Ct. 558, 52 L. Ed. 788. If, therefore, on all the evidence, the jury was justified in finding that plaintiff's intestate came to his death through defendants' negligence as alleged, the second motion was properly overruled.

It is the duty of the proprietor of a public restaurant to furnish food fit for human consumption, and failure in this respect resulting in injury is foundation for an action for negligence. King v. Davis, 54 App. D. C. 239, 296 F. 986; Horn & Hardart Baking Co. v. Lieber (C. C. A.) 25 F.(2d) 449; Ash v. Childs Dining Hall Co., 231 Mass. 86, 120 N. E. 396, 4 A. L. R. 1556; Bishop v. Webber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715; Bark v. Dixson, 115 Minn. 172, 131 N. W. 1078, Ann. Cas. 1912D, 775.

Plaintiff's evidence was, in substance, as follows: About 1 o'clock on April 29, 1926, plaintiff's intestate, Kenneth M. Smith, a commissioned officer of the Navy (a chief pharmacist), and five other commissioned officers, all apparently in good health, went to Harvey's Restaurant and ordered oysters. Three of the men had raw oysters on the half shell, and three (Officers Legg, Berkstresser, and Smith) had fried oysters. We will here quote from Officer Berkstresser's testimony: "There were six oysters in each order of fried oysters. I eat very rapidly, and had eaten about five of my oysters when I became nauseated and I excused myself from the rest of the party without telling them that I was ill and went to the toilet, where I remained about five minutes and vomited freely. I returned to the table and noticed that Mr. Smith had quit eating his order of oysters, of which he had eaten about half, and was toying with the rest of the food as if he had lost his appetite; I asked him whether he felt ill in any way and he said he did, and Mr. Legg spoke up and said he also felt ill. We had also ordered coffee and pie. The coffee had been served but the pie had not, and we left the restaurant without waiting for it, and went across the street, to the Raleigh Hotel at the corner. On the way over Mr. Smith, who was a medical man, suggested that one of the members who was not ill stop in a drug store and get some Seidlitz powders and meet us in our room. The six officers went upstairs and Mr. Smith, Mr. Legg and I took turns vomiting in the bath room. * * * The other officer with the Seidlitz powders came in and we each took one. Before the officer with the Seidlitz powders arrived, one of our party called up the Restaurant and told them the food we had had made us ill, in order that they would not serve it to other...