Allen v. Grafton

• Decision Date: 20 January 1960
• Docket Number: No. 36016,36016
• Citation: 164 N.E.2d 167,170 Ohio St. 249
• Parties: , 10 O.O.2d 289 ALLEN, Appellee, v. GRAFTON, Appellant.
• Court: Ohio Supreme Court

Page 249

170 Ohio St. 249

164 N.E.2d 167, 10 O.O.2d 289

ALLEN, Appellee, v. GRAFTON, Appellant.

No. 36016.

Supreme Court of Ohio.

Jan. 20, 1960.

Syllabus by the Court

1. Where a patron of a restaurant orders a meal and it is served to him, there is a sale of what is served by the restaurant to the patron, and, by reason of Section 1315.16, Revised Code, the operator of the restaurant impliedly warrants that what is served is reasonably fit to eat.

2. A violation of our statutes, making it a crime to sell 'food * * * that is adulterated,' constitutes negligence per se.

3. If food is reasonably fit to eat, one cannot, apart from violation of some statute, be held negligent for selling it as food.

4. The presence in one of a serving of six fried oysters of a piece of oyster shell approximately 3 x 2 centimeters (about 1 1/5 inches by 4/5 of an inch) in diameter will not justify a legal conclusion either (a) that that serving of fried oysters constituted 'food' that was 'adulterated' within the meaning of Section 3715.59, Revised Code, or (b) that that serving constituted food not 'reasonably fit for' eating.

Plaintiff instituted this action in the Common Pleas Court of Hamilton County by the filing of a petition praying for $51,542.50 damages and alleging, as a first cause of action, 'that defendant * * * was * * * engaged in the business of operating a restaurant * * * that on * * * the 19th of February, 1958,' plaintiff 'ordered a meal which was served to him and which he ate and for which he paid * * * that as a part of said meal' defendant 'served * * * one-half dozen fried oysters, which defendant impliedly warranted to be pure, safe, and reasonably fit for human consumption * * * that said fried oysters contained a deleterious substance, to wit; an oyster shell approximately 3 x 2 centimeters in diameter by virtue of which said fried oysters were unwholesome, impure, and reasonably unfit for human consumption * * * that defendant failed and neglected to inform or advise plaintiff of said oyster shell * * * and, having no knowledge thereof, plaintiff ate the said fried oyster and as a * * * proximate result thereof * * * became ill and * * * sick resulting in injuries and damage to plaintiff in * * * a puncturing of the small intestine * * * which required an abdominal would for the removal of * * * said * * * shell.' As a second cause of action, plaintiff's petition 'incorporates * * * all the allegations of his first cause of action * * * and further alleges that * * * defendant was negligent in failing to inform and advise plaintiff of the unfit and dangerous condition of said fried oyster * * * when he knew or in the exercise of ordinary care should have known of the existence of the deleterious substance * * * therein * * * that said injuries were caused directly and proximately by the sale of food by * * * defendant in * * * violation of Sections 3715.52 and 3715.59 * * * Revised Code.'

Defendant's demurrer was sustained and, 'plaintiff not desiring to plead further, the petition' was 'dismissed.'

On appeal to the Court of Appeals, that judgment of dismissal was reversed.

The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of defendant's motion to certify the record.

Bloom & Tyler, Cincinnati, for appellant.

Kane & Kane, Cincinnati, for appellee.

TAFT, Judge.

This court has held in effect that where, as in the instant case, a patron of a restaurant orders a meal and it is served to him, there is a sale of what is served by the restaurant to the patron, and, by reason of that portion of the Uniform Sales Act that is now Section 1315.16, Revised Code, ¹ the operator of the restaurant impliedly warrants that the food is reasonably fit to eat. Yochem v. Gloria, Inc., 134 Ohio St. 427, 17 N.E.2d 731. See annotation 7 A.L.R.2d 1027 and annotation 18 N.C.C.A.,N.S., 573. We have further held in effect that a violation of our statutes, making it a crime to sell 'food * * * that is adulterated,' ² constitutes negligence per se. Yochem v. Gloria, Inc., supra, 134 Ohio St. 427, 17 N.E.2d 731; Portage Markets Co. v. George, 111 Ohio St. 775, 146 N.E. 283; Taugher v. Ling, 127 Ohio St. 142, 187 N.E. 19; Great Atlantic & Pacific Tea Co. v. Hughes, 131 Ohio St. 501, 3 N.E.2d 415; Rubbo v. Hughes Provision Co., 138 Ohio St. 178, 34 N.E.2d 202; Leonardi v. A. Habermann Provision Co., 143 Ohio St. 623, 56 N.E.2d 232; Kurth v. Krumme, 143 Ohio St. 638, 56 N.E.2d 227; Wolfe v. Great Atlantic & Pacific Tea Co., 143 Ohio St. 643, 56 N.E.2d 230. As a result, whether there would be liability in Ohio, apart from statute, for a sale of food that is unfit to eat because it contains something (like the oyster shell in the instant case) that is not edible is a question of only academic interest. Thus, if such food so sold is unfit to eat, its sale will usually amount to a breach of an implied warranty or to negligence per se; and it will then be unimportant to consider whether, apart from statute, the defendant would be liable for negligence in the sale of such food if he knew or, in the exercise of ordinary care, should have known that it was unfit to eat. See 22 American Jurisprudence, 881, Section 97. If such food was reasonably fit to eat, it is difficult to see how the defendant coudl, apart from violation of some statute, ever be said to be negligent in selling to for food.

As we view it therefore, whether plaintiff's petition sets forth a cause of action depends upon whether the presence in one fried oyster of a serving of six of a piece of shell, such as described in the petition, will justify a legal conclusion either (a) that that serving of fried oysters constituted 'food' that was 'adulterated' within the meaning of Section 3715.59, Revised Code, or (b) that that serving constituted food not 'reasonably fit for' eating.

It is obvious that a piece of shell such as described in the petition can be readily removed from a fried oyster by anyone who is going to eat it; and that, if it is so removed, the fried oyster would then admittedly be food that is fit for eating and that is not 'adulterated.' A different problem would be presented if the shell had been shattered into smaller pieces which could not be readily removed from the oyster so as to leave any substantial edible portion that was free from such pieces. In the latter instance, a contention, that the oyster would constitute 'adulterated' food or food not reasonably fit for eating, might be more persuasive.

Of course, a piece of shell, such as described in the petition, is not reasonably fit for eating as food; and, if eaten with food, it could have a 'deleterious' effect. However, the same could be said about a peach seed in a peach, a plum seed in a plum, a cherry seed in a cherry, a skewer or toothpick or even string used to hold meat together, and bones in a steak or in a piece of chicken or in fish. However, the great weight of authority would not allow recovery for damages in such instances.

Thus, in the leading case of Mix v. Ingersoll Candy Co., 1936, 6 Cal.2d 674, 59 P.2d 144, 145, where it was alleged that a 'chicken pie * * * contained 'a dangerous, harmful and injurious subject, to-wit, a sharp and pointed fragment and/or sliver of chicken bone * * * highly injurious to anyone eating said chicken pie,'' it was held as a matter of law that there could be no recovery 'no matter how the pleading was drawn.' In the opinion by Curtis, J., it is said:

'It may well happen in many cases that the slightest deviation from perfection may result in the failure of the food to be reasonably fit for [see Cavanagh v. F. W. Woolworth Co. (1941), 308 Mass. 423, 32 N.E.2d 256] human consumption. On the other hand * * * in certain instances a deviation from perfection, particularly if it is of such a nature as in common knowledge could be reasonably anticipated and guarded against by the consumer, may not be such a defect as to result in the food being not reasonably fit for human consumption. * * * We have examined a great many cases dealing with the question of the liability of restaurant keepers which arose out of the serving of food which was held to be unfit for human consumption, and we have failed to find a single case * * * in which a court has extended the liability based upon an implied warranty of a restaurant keeper to cover the presence in food of bones which are natural to the type of meat served. All of the cases are instances in which the food was found not to be reasonably fit for human consumption, either by reason of the presence of a foreign substance, or an impure and noxious condition of the food itself, such as for example, glass, stones, wires or nails in the food served, or tainted, decayed, diseased, or infected meats or vegetables. Although it may frequently be a question for a jury as the trier of facts to determine whether or not the particular defect alleged rendered the food not reasonably fit for human consumption, yet certain cases present facts from which the court itself may say as a matter of law that the alleged defect does not fall within the terms of the statute. * * * as a matter of common knowledge chicken pies occasionally contain chicken bones. We have no hesitancy in so holding, and we are of the opinion that despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. * * * the application of the rule of implied warranty might impose a heavy burden upon the keeper of restaurants * * * but * * * considerations of public policy and public health and safety are of such importance as to demand that such...