74 F.2d 439 (5th Cir. 1934), 7208, F.W. Woolworth Co. v. Wilson

Docket Nº:7208.
Citation:74 F.2d 439
Case Date:December 21, 1934
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 439

74 F.2d 439 (5th Cir. 1934)




No. 7208.

United States 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 here, and recovered a

Page 440

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 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: Where 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...

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