Horn & Hardart Baking Co. v. Lieber

• Citation: 25 F.2d 449
• Decision Date: 27 February 1928
• Docket Number: No. 3704.,3704.
• Parties: HORN & HARDART BAKING CO. v. LIEBER.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

25 F.2d 449 (1928)

HORN & HARDART BAKING CO. v. LIEBER.

No. 3704.

Circuit Court of Appeals, Third Circuit.

February 27, 1928.

Thomas F. Mount, Francis Rawle, and Joseph W. Henderson, all of Philadelphia, Pa., for plaintiff in error.

Abraham Friedman, of Philadelphia, Pa., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

This suit was begun in a state court. The defendant, averring plaintiff was a citizen of Pennsylvania, that her alleged claim was in excess of the statutory jurisdictional requirement, and that it was a corporate citizen of another state, removed the case to the court below. Jury was waived, the case tried by the judge, and a judgment entered for $150. Thereupon this appeal was taken. The facts themselves are undisputed, and the question involved is whether the record disclosed evidence of negligence on the part of the defendant which would have constrained submission to a jury. The proofs adduced by plaintiff were that defendant maintained a public restaurant in the city of Philadelphia, to which she and a companion came on the night of May 12, 1926, and ordered strawberries; that, while eating them, she felt a sharp pain in her gum. She spat out, and saw blood coming. She felt around with her tongue and again spat, and brought out a nail or tack such as is used in making berry baskets. Her companion testified to the same effect and a dentist also to treating and disinfecting her upper left gum. This comprised the entire testimony on behalf of the plaintiff. Was it sufficient to constrain submission to a jury on the issue of negligence on the part of the defendant? That it was is contended on the ground, first, that defendant was the absolute insurer of the fitness of all food served; or, second, that the mishap of the plaintiff was itself proof of negligence.

Turning to the first question, we are clear that, under the authorities, an innkeeper is not the insurer of food, but his duty is that of exercising due care in the furnishing and serving thereof. Valeri v. Pullman (D. C.) 218 F. 522, and authorities therein cited; Sheffer v. Willoughby, 163 Ill. 518, 45 N. E. 253, 34 L. R. A. 464, 54 Am. St. Rep. 483; Roseberry v. Wachter (Del. Super.) 138 A. 273. Turning to the second question, was the happening of the mishap to the plaintiff, in other words, the presence of the tack, in and of itself evidence of negligence? The accident which is itself evidence of negligence is, as stated in San Juan v. Requena, 224 U. S. 98, 32 S. Ct. 401, 56 L. Ed. 680, "when a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care." Now the presence at times of some foreign substance in food, viands poisonous and impure, the infectious character of meat and drink, are things which, in the ordinary experiences of life, as we know, happen both in homes and public eating places. Foods are assembled from distant places; they pass through different...