Albrecht v. Rubinstein.

• Decision Date: 02 December 1948
• Citation: 63 A.2d 158,135 Conn. 243
• Parties: ALBRECHT v. RUBINSTEIN.
• Court: Connecticut Supreme Court

135 Conn. 243

63 A.2d 158

ALBRECHT

v.RUBINSTEIN.

Supreme Court of Errors of Connecticut.

Dec. 2, 1948.

Appeal from Court of Common Pleas, Hartford County; Devlin, Judge.

Action by Frank Albrecht against Morris Rubinstein for damages for injuries alleged to have been sustained as result of food eaten in defendant's restaurant, brought to the Court of Common Pleas and tried to the jury, wherein the court directed a verdict for defendant upon the first and second counts and submitted a third count to the jury. From a verdict and judgment for defendant, plaintiff appeals.

No error.

ELLS, J., dissenting.

Abraham R. Friedman, and Samuel H. Freidman, both of Hartford, for appellant.

Robert E. Courtney, Jr., and Edward I. Taylor and William H. Tribou, all of Hartford, for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

JENNINGS, Judge.

The plaintiff claimed to have been poisoned by food purchased from the defendant in the latter's restaurant. He brought suit on three counts, the first on express contract, the second on implied contract and the third on negligence. The trial court directed a verdict for the defendant on the first two counts and the jury found for the defendant on the third count. The plaintiff appealed from the denial of his motion to set aside the verdict and from the judgment.

The jury reasonably could have found the following facts: The plaintiff is a police officer of the city of Hartford. On June 14, 1947, about 11 a. m., he was off duty and entered the defendant's restaurant to get something to eat. He asked the defendant what he had for a good sandwich and the defendant said, ‘How would you like a good fresh corned beef sandwich?’ The plaintiff said ‘Good,’ and was served with a sandwich and coffee which he consumed on the premises. When he arrived home about noon he found that his six-year-old daughter had not finished her lunch of frankfurters and beans, so he ate what was left. Shortly thereafter he started to take down the curtains in his house. While so engaged he suffered an attack of vomiting, diarrhea and stomach pains. He was taken to the Hartford Hospital with an admission diagnosis of acute appendicitis. Later his illness was diagnosed as food poisoning.

There was no evidence of negligence. The verdict for the defendant on the third count cannot be disturbed. The plaintiff admits that if the law as laid down in Merrill v. Hodson, 88 Conn. 314, 91 A. 533, L.R.A.1915B, 481 Ann.Cas.1916D, 917; and Lynch v. Hotel Bond Co., 117 Conn. 128, 167 A. 99, is still valid the direction of the verdict on the second count was correct, but he urges that we re-examine the question and adopt the so-called Massachusetts and New York rule, discussed at length in Cushing v. Rodman, 65 App.D.C. 258, 82 F.2d 864, note, 104 A.L.R. 1033; and see 4 Williston, Contracts (Rev.Ed.) § 996A. The doctrine was thoroughly re-examined in the Lynch case (1933) and we are not disposed to overrule that case at this time. At the 1937 session of the General Assembly a bill was offered which provided that any establishment serving food or drink for consumption on the premises should be held to warrant that they were fit and wholesome. House Bill No. 19. The bill was unfavorably reported and rejected. This action plainly indicated an unwillingness on the part of the General Assembly to alter the construction placed on the act in the Lynch case. Tileston v. Ullman, 129 Conn. 84, 87, 26 A.2d 582. The passage of the Sales and Use Tax Act does not affect this conclusion. This was a taxation statute and the definition of the word ‘sale’ as including the furnishing of food is limited to its use in the act. General Statutes, Sup.1947, § 329i(3)(e).

The Merrill and Lynch cases, supra, deal with implied rather than express warranties. An express warranty which is a part of a contract of sale assumes the existence of a contract of sale. Fairbank Canning Co. v. Metzger, 118 N.Y. 260, 265, 23 N.E. 372, 16 Am.St.Rep. 753; 46 Am.Jur. 483. The cases cited establish that in Connecticut the service of food in a restaurant for immediate consumption on the premises does not constitute a sale. It does not follow that there can be no express warranty in such a situation. An express warranty has been defined as ‘a positive representation of fact which induces a bargain.’ 5 Williston, Contracts (Rev.Ed.) § 1505. Lynch v. Hotel Bond Co., supra, 117 Conn. 131, 167 A. 100, defines the transaction between the customer and restaurateur to be the furnishing of service by the latter to the former. Parties can contract as they will and if the defendant had expressly warranted that he would serve the plaintiff food fit for human consumption and he failed to do so he might have been held liable for breach of warranty. The warranty claimed by the plaintiff, however, is not of this character. The evidence in its most favorable aspect does not go beyond a representation on the part of the defendant that he would serve the plaintiff a ‘good’ sandwich. ‘Good’ is a word having many meanings. 28 C.J. 713; 38 C.J.S., Good, page 936. In such a situation as the one before us it often signifies no more than agreeable to the taste, as in the phrase ‘a good dinner’; Webster's New International Dictionary (2d Ed.). As used by the parties here, the word was too indefinite and...