82 F.2d 864 (D.D.C. 1936), 6465, Cushing v. Rodman

Docket Nº:6465.
Citation:82 F.2d 864
Party Name:CUSHING v. RODMAN.
Case Date:February 24, 1936
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 864

82 F.2d 864 (D.D.C. 1936)

CUSHING

v.

RODMAN.

No. 6465.

United States Court of Appeals, District of Columbia.

February 24, 1936

Godfrey L. Munter, Confer G. Bailey, and Harry Raymond Turkel, all of Washington, D. C., for plaintiff in error.

J. Harry Welch, of Washington, D. C., for defendant in error.

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

STEPHENS, Associate Justice.

This case arises upon a writ of error to the Municipal Court of the District of Columbia, which, in an action by the plaintiff in error for damages for breach of an implied warranty, entered judgment for the defendant in error. Hereafter the parties will be referred to as plaintiff and defendant. The facts, which are without dispute, are as follows: The plaintiff, on November 24, 1934, at a drug store and lunch room operated by the defendant in the District of Columbia, ordered for a breakfast coffee and a roll. These were served and paid for. The roll was taken by a waited from a receptacle containing a number kept back of a counter. The plaintiff made no selection of the particular roll served. It had a pebble in it, upon which the plaintiff broke a tooth and thereby suffered pain, disfigurement and dental expenses. The defendant had purchased the roll with others from a confectionery in the District of Columbia, which we assume to be reputable, delivery having been made the morning of the 24th in a paper box, deposited in the receptacle above mentioned. There were no pebbles in the defendant's place of business, and the pebble could not have gotten into the roll there. The roll was like any other in appearance. The pebble was not visible from the outside and could not have been seen on the inside in the customary course of serving. In short, there was no evidence of negligence by the defendant; indeed, none was charged. The cause of action was based solely upon 'breach of contract of implied warranty of fitness for human consumption and breach of implied warranty of merchantable quality.'

The sole question in the case is whether, upon the service of food for a consideration and for immediate consumption upon the premises of the seller, but which food was not prepared by the seller but purchased elsewhere, and the defect in which was not discoverable except by destroying the marketability of the article, there is an implied warranty of wholesomeness. 1

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The only cases decided by this court on the subject of the liability of a purveyor of food for injury caused by unwholesomeness thereof are King v. Davis, 54 App.D.C. 239, 296 F. 986 (1924), and Picard v. Smith, 59 App.D.C. 291, 40 F.2d 803 (1930). Each of these cases sounded in tort for negligence and recognized liability therein, but neither case constitutes an authority on the question of liability under the theory of breach of implied warranty. It is conceded by counsel in this case that the question is novel in this jurisdiction.

There is a sharp division of authority upon the question presented. We have examined all of the cases which seem of material significance, including all referred to in the briefs. The leading cases on each side of the question have so thoroughly set forth and discussed all pertinent viewpoints that it would add nothing to the literature upon the subject to restate the cases and points of view in detail. We shall, therefore, only mention the more important cases on each side of the controversy and then summarize the viewpoints expressed therein.

The following, all involving situations where the food dispensed was prepared and served in the defendant's place of business, deny the right of recovery for injury from unwholesome food on the theory of breach of an implied warranty, the viewpoint of the courts being that liability sounds only in tort for negligence: Valeri v. Pullman Co., 218 F. 519 (1914), decided by the United States District Court for the Southern District of New York under an opinion by Augustus N. Hand, as District Judge; Sheffer v. Willoughby, 163 Ill. 518, 45 N.E. 253, 34 L.R.A. 464, 54 A.St.Rep. 483 (1896); 2 Merrill v. Hodson, 88 Conn. 314, 91 A. 533. 183 Ala. 415, 62 So. 851 (1913); Merrill v. Hodson, 88 Conn. 314, 91 A. 533, L.R.A.1915B, 481, Ann.Cas. 1916D. 917 (1914); Rowe v. Louisville & N. R. Co., 29 Ga.App. 151, 113 S.E. 823 (1922); F. W. Woolworth Co. v. Wilson, 74 F.2d 439, 98 A.L.R. 681 (1934), in the United States Circuit Court of Appeals for the Fifth Circuit under an opinion by Sibley, Circuit Judge; Nisky v. Childs Co., 103 N.J.Law 464, 135 A. 805, 50 A.L.R. 227 (1927); and Kenney v. Wong Len, 81 N.H. 427, 128 A. 343 (1925). These cases involved respectively: unwholesome food served in a buffet railroad car, 3 unwholesome oyster stew served in a restaurant, 4 spoiled fried oysters furnished in a dining car, 5 unwholesome creamed sweetbreads in a restaurant, 6 unfit food, exact kind unspecified, served in a railroad dining car, 7 ice cream dispensed at a soda fountain and containing a piece of broken glass, 8 unwholesome fried oysters served in a restaurant, 9 roast chicken dressing containing a mouse, served at a restaurant. 10 It is to be noted that these cases, though they do not on their facts involve situations where the food dispensed was bought elsewhere and in a form not subject to effective inspection without destruction of the marketability of the article, are nevertheless applicable against liability in such a situation. That is to say, if a dispenser of food is not to be held liable on the theory of breach of an implied warranty when he prepares the food himself, a fortiori he should not be where he obtains the food elsewhere and necessarily serves it in its original condition, where does not disclose the defect. There is one case which does on its facts involve the latter situation and denies liability in an action predicated upon breach of an implied warranty of wholesomeness. This is Bigelow v. Maine C. R. Co., 110 Me. 105, 85 A. 396, 43 L.R.A. (N.S.) 627 (1912). There canned asparagus served on the dining car of the defendant proved unwholesome. It had been purchased by the defendant under a well known brand put up and guaranteed by a reliable dealer as pure under a local pure food and drug act, and apparently no imperfection in either the can or the contents was observable

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On the other hand, representative of the view that there should be liability upon the theory of breach of an implied warranty of wholesomeness are the following cases: Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100 (1918), the opinion being by Rugg, C. J.; Smith v. Gerrish, 256 Mass. 183, 152 N.E. 318 (1926); Race v. Krum, 222 N.Y. 410, 118 N.E. 853, L.R.A.1918F, 1172 (1918); Barrington v. Hotel Astor, 184 A.D. 317, 171 N.Y.S. 840 (1918); Temple v. Keeler, 238 N.Y. 344, 144 N.E. 635, 35 A.L.R. 920 (1924); Heise v. Gillette, 83 Ind.App. 551, 149 N.E. 182 (1925). These cases involved respectively: a stone in baked beans served in a restaurant; 11 unwholesome broiled mackerel in a restaurant; 12 poisonous ice cream at a drug store; 13 half a mouse served in kidney saute in a hotel dining room; 14 unwholesome fried fish in a restaurant; 15 and an unwholesome chicken sandwich in a restaurant. 16 These cases, like those first mentioned above, do not involve situations where the harmful article was purchased by the defendant elsewhere and in a form not subject to effective inspection without destruction, and they do not, therefore, constitute necessarily persuasive rulings for liability in such a situation. There are, however, involving the last mentioned class of case and contrary therefore to Bigelow v. Maine C. R. Co., supra, the following cases: S. H. Kress & Co. v. Ferguson, 60 S.W.2d 817 (1933), in the Court or Civil Appeals of Texas, where the harmful article was ice cream served in an ice cream soda at a lunch counter, and wherein liability for breach of implied warranty of wholesomeness was recognized despite the defendant's contention that the defect in the ice cream was not discoverable by sight, smell or taste-- the same having been purchased by defendant from a reputable dealer; Greenwood v. John R. Thompson Co., 213 Ill.App. 371 (1919), the food being frankfurter sausages so put up as not to be subject to inspection. There are also the two English cases of Morelli v. Fitch, (1928) 2 K.B. 636, and Wren v. Holt, (1903) 1 K.B. 610, both of which were cited in Ryan v. Progressive Grocery Stores, infra, as representing the English rule, the former involving ginger wine of a particular make chosen by the plaintiff and furnished in a bottle the r neck of which broke, and the latter involving arsenic in beer, again a particular firm's product, for which the plaintiff asked

There is a further group of cases which hold the dispenser of food for immediate consumption liable upon the theory of breach of implied warranty of wholesomeness, and which, unless distinguishable upon the ground that they involve sales in the orthodox sense, rather than the mere service or 'uttering' of food without the passing of title, are highly persuasive: Ward v. Great Atlantic & Pacific Tea Co., 231 Mass.90, 120 N.E. 225, 5 A.L.R. 242 (1918), decided on the same day as Friend v. Childs Dining Hall Co., supra, the opinion again being by Rugg, C. J., the case involving beans purchased from the defendant distributor in an unopened can bought by him from a reputable dealer and taken home by the plaintiff purchaser for consumption, a pebble in the beans constituting the deleterious feature; Rinaldi v. Mohican Co., 171 A.D. 814, 157 N.Y.S. 561 (1916), where the article sold was infected pork purchased by the defendant from a retail dealer and bearing a government stamp to the effect that it was sound and fit for consumption and free from...

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