FW Woolworth Co. v. Wilson

• Decision Date: 21 December 1934
• Docket Number: No. 7208.,7208.
• Citation: 74 F.2d 439,98 ALR 681
• Parties: F. W. WOOLWORTH CO. v. WILSON.
• Court: U.S. Court of Appeals — Fifth Circuit

98 ALR 681, 74 F.2d 439 (1934)

F. W. WOOLWORTH CO. v. WILSON.

No. 7208.

Circuit Court of Appeals, Fifth Circuit.

December 21, 1934.

Pinkney Grissom and Alex W. Spence, both of Dallas, Tex., for appellant.

D. M. Oldham, Jr., of Abilene, Tex., for appellee.

Before FOSTER, SIBLEY and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Clevie Wilson sued F. W. Woolworth Company because of a slowly developing but serious bodily injury which she claimed resulted from swallowing some glass in an ice cream soda furnished her, and recovered a verdict for $7,500; the company appealing. The suit was in two counts, one charging negligence in the preparation and service of the ice cream soda, the other asserting an implied warranty that the food purchased by her was fit to be eaten. The defense was general denial, contributory negligence in swallowing the glass after feeling it in her mouth, and in not summoning medical aid promptly, and that the sickness later was due to recurrent pellagra and not to the glass. In the charge the counts were submitted together, the court instructing the jury that there was a warranty and if plaintiff got glass in her food and suffered injury from it she was entitled to recover her damage independently of negligence, but he required them additionally to find whether there was negligence. The verdict reads: "We, the jury, find for plaintiff damages in the sum of $7500.00. We find the defendant was guilty of negligence as claimed by the plaintiff." The evidence, except as to the cause and extent of plaintiff's sickness, is in no great conflict. Plaintiff and three other women entered the Woolworth Company's place where ice cream and soft drinks were served at a counter and at tables, and one of her companions offered to treat and paid in advance for what was served; each woman stating to the waitress what she wished. Plaintiff chose ice cream soda. This was prepared at the counter by putting into a goblet a flavoring syrup and cream, cracked ice, carbonated water, and ice cream, all kept near at hand and under cover save the cracked ice. From the bottom of the goblet plaintiff got into her mouth something which she supposed was ice and chewed it and swallowed some, but a piece stuck in her gum. This she pulled out, found to be glass, and exhibited it to the waitress, who summoned a superior. No other glass was found anywhere. No physician was called for several days. The cracked ice was in a receptacle near and beneath the level of the hard counter on which sometimes glasses fell and broke. Whenever that occurred great care was taken to see that all pieces were gathered up, and if any food receptacle was open nearby the contents were thrown away. It was not shown that any glass had been broken that day. Defendant proved that everything served was gotten from reputable dealers and was carefully handled, and no one else got any glass in anything served that day. There was great conflict in the evidence, as stated, touching the probable effect of glass swallowed and as to the extent and cause of the plaintiff's sickness. She declined to be physically examined at the trial and the judge did not require it. Of the questions raised by the many complaints of error we find it necessary to deal with only two: Whether there was a contractual warranty of the food, and whether impropriety in the concluding argument of plaintiff's counsel requires a new trial.

Whether there is an implied warranty of fitness and quality where for a consideration food is prepared and served to a customer to be consumed on the premises from the dishes and by means of the utensils of the furnisher there is an irreconcilable conflict of authority. In a modern case (1918) in Massachusetts, Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N. E. 407, 5 A. L. R. 1100, and one in New York (1924) Temple v. Keeler, 238 N. Y. 344, 144 N. E. 635, 35 A. L. R. 920, it is maintained that the transaction is essentially a sale of goods for a purpose made known to the seller, where the latter's skill and judgment and opportunity to examine the goods is relied on, from which circumstances a warranty of fitness is to be implied. In more recent decisions in neighboring states these rulings have been denied correctness, and it has been held that there is not really a sale but predominantly a service; that the customer does not so much buy the food as the right to consume what he will of it, not carrying away but leaving any residue; and that by long-settled law there is a duty on the furnisher to use skill and care in procuring the materials, in preserving and preparing and serving them, for failure in which damages may be recovered; but no warranty is to be implied imposing liability irrespective of negligence. Kenney v. Wong Len, 81 N. H. 427, 128 A. 343; Nisky v. Childs Co., 103 N. J. Law, 464, 135 A. 805, 50 A. L. R. 227. These cases as annotated give an excellent review of the controversy. In Texas, where the present case arose, there is a decision by a Court of Civil Appeals, S. H. Kress & Co. v. Ferguson, 60 S.W.(2d) 817, much resembling the case at bar in which the warranty was asserted and enforced. Our first inquiry is whether this case is controlling in this court. We think not. The opinion begins by stating that the question on which the courts had divided, to wit, whether there was a sale or a service, was put out of the case by a stipulation made in the trial that there was a sale to the plaintiff by defendant as a retail dealer, and thereupon the authorities relating to implied warranties in sales by such dealers were applied. Article 1 of the Rev. Stats. of Texas reads: "The common law of England, so far as it is not inconsistent with the Constitution and laws of this State, shall together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature." No provision of the Constitution or of any statute is here relied on, so that the common law of England is the rule of decision. Perhaps we should not be bound on such a question even by a decision of the Supreme Court of Texas. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U. S. 518, 48 S. Ct. 404, 72 L. Ed. 681, 57 A. L. R. 426. Though Mutual Life Ins. Co. v. Johnson, Adm'r, 293 U. S. 335, 55 S. Ct. 154, 79 L. Ed. ___ seems to point the other way. But the cited case is not by the Supreme Court but by one of the intermediate courts. We cannot regard it as fixing the common law for the state of Texas, since it stands alone, and especially since it put aside a crucial point whether or not such a transaction is truly a sale by a dealer. The duty is on us to ascertain the common law for ourselves.

We find the better reasons to be not with the decisions in Massachusetts and New York but with those refusing to follow them. Beside the cases in New Hampshire and New Jersey above cited, we refer also to Rowe v. Louisville & Nashville R. Co., 29 Ga. App. 151, 113 S. E. 823, and the federal cases, Valeri v. Pullman Co. (D. C.) 218 F. 519, decided in 1914, and King v. Davis, 54 App D. C. 239, 296 F. 986, decided in 1924, and Horn & Hardart Baking Co. v. Lieber (C. C. A.) 25 F.(2d) 449, in 1928, which hold that negligence and not warranty is the ground of liability for unwholesome food thus furnished. The question, however, is perplexing. In a sale at common law there was generally no warranty of quality or fitness implied, but caveat emptor was the rule. An exception obtained when a dealer sold food for immediate domestic use, 24 R. C. L., Sales, § 467, and when any article was sold for a stated use and the seller's judgment was relied on, § 459. It is quite logically urged that when food is furnished or prepared to be at once eaten title does pass at least to what is eaten, and that there is no real difference between a beefsteak sold to be cooked at home and one...