Betehia v. Cape Cod Corp.

• Decision Date: 03 May 1960
• Citation: 10 Wis.2d 323,103 N.W.2d 64
• Parties: Edward C. BETEHIA, Plaintiff-Appellant, v. CAPE COD CORPORATION, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 64

103 N.W.2d 64

10 Wis.2d 323

Edward C. BETEHIA, Plaintiff-Appellant, v. CAPE COD CORPORATION, Defendant-Respondent.

Supreme Court of Wisconsin.

May 3, 1960.

Lewis I. Cohen, Kersten & McKinnon, Milwaukee, E. Campion Kersten, Milwaukee, of counsel, for appellant.

Paulsen, Wake & Prosser, Milwaukee, John F. Zimmermann, Milwaukee, of counsel, for respondent.

HALLOWS, Justice.

This is a case of first impression. No Wisconsin cases are cited by either the plaintiff or the defendant and we have not found any on the precise point involved. The controlling questions are whether the presence in the sandwich of the chicken bone of the size described in the complaint, which is natural to the meat contained in the sandwich, constituted a breach of an implied warranty by the restauranteur that the chicken sandwich was reasonably fit for human consumption; and whether the defendant restaurant operator was negligent in preparing and serving such a sandwich in his public restaurant to the plaintiff patron. The trial court did not discuss the question of negligence in its opinion, but it is clear the court considered both causes of action were controlled by the same principles of law and held no cause of action on either theory was stated under the line of authorities represented by Mix v. Ingersoll Candy Co., 1936, 6 Cal.2d 674, 59 P.2d 144.

It is not disputed or questioned by the parties or by the trial court that the transaction between the plaintiff and the defendant amounted to a sale so that an implied warranty either under common-law principles or sec. 121.15, Stats., 19 W.S.A. p. 48 (Sales Act), would be applicable. We deem it necessary to pass on this point because the question has not been decided and was expressly left open for decision in Prinsen v. Russos, 1927, 194 Wis. 142, 215 N.W. 905, and in Doherty v. S. S. Kresge Co., 1938, 227 Wis. 661, 278 N.W. 437.

Authorities split over whether a restaurant operator sells the food he serves, or whether he renders a service to his patrons. The minority Connecticut-New Jersey rule views such a fact situation as not being a sale of food by a restauranteur and therefore no implied warranty exists. The only liability of an operator of a restaurant to his patron is for common-law negligence. Merrill v. Hodson, 1914, 88 Conn. 314, 91 A. 533, L.R.A.1915B, 481, and Nisky v. Childs Co., 1927, 103 N.J.L. 464, 135 A. 805, 50 A.L.R. 227, are the leading cases for this view. This line of authority bases its decisions on the reasoning an innkeeper utters, rather than sells, the food because food was generally combined with other services in the old, typical English inn, or the food was incidental to the service of preparing and serving it or title could not pass because the food was consumed in the process of delivery. These are old-fashioned concepts which do not fit modern-day practices. Food or meals may be sold in a restaurant or hotel not combined with any services such as lodging. The food furnished in a restaurant is paramount and the preparation and serving of it are incidental to the sale. Title under the sale theory passes when the food is put on the table, not piecemeal as it is consumed. The old boardinghouse theory under which one could carry away as much of the food furnished as he could stuff in his stomach but could not put any in his pocket has no application to modern dining. Today if one takes home from a restaurant part of his steak for his dog, he could hardly be accused of larceny.

The more recent cases now constituting the majority rule hold one engaged in the business of serving food for immediate consumption on the premises sells the meal or food served, impliedly warrants it is reasonably fit for human consumption, and is liable upon breach of such warranty. The sales theory applies whether one is eating a la carte, table d'hote, in a restaurant or in a cafeteria, automat or drive-in, and whether the food is eaten on or off the premises. This view is known as the Massachusetts-New York rule. Friend v. Childs Dining Hall Co., 1918, 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100; Temple v. Keeler, 1924, 238 N.Y. 344, 144 N.E. 635, 35 A.L.R. 920. For a discussion of these two theories and the jurisdictions so holding, see Annotations 35 A.L.R. 921, 7 A.L.R.2d 1027.

We adopt the better-reasoned majority rule and hold when a patron orders, and pays for, a meal or food at a public restaurant, there is a sale of such food within the meaning of sec. 121.15, Stats., and there exists an implied warranty that the food so sold is reasonably fit for human consumption. We deem that a patron of a restaurant ordering a meal or food thereby makes known to the seller the particular purpose for which the food is required and by that act relies on the seller's skill and judgment in preparing such food.

Is the implied warranty of reasonable fitness of food for human consumption breached because of the presence of a chicken bone in a chicken sandwich? The Mix case, supra, which represents one view held that as a matter of law a harmful substance present in food which is natural to it cannot be a legal defect or a breach of the implied warranty of reasonable fitness of such food. That case was brought both on the theory of implied warranty and of common-law negligence. The plaintiff was injured by a chicken bone in chicken-pot pie. On demurrer the court held the defendant was not liable under either theory because chicken bones were natural to the meat served and not a foreign substance, and it was common knowledge chicken pies occasionally contain chicken bones, and therefore their presence ought to be anticipated and guarded against by the consumer.

This reasoning is fallacious because it assumes that all substances which are natural to the food in one stage or another of preparation are, in fact, anticipated by the average consumer in the final product served. It does not logically follow that every product which contains some chicken must as a matter of law be expected to contain occasionally or frequently chicken bones or chicken-bone slivers because chicken bones are natural to chicken meat and both have a common origin. Categorizing a substance as foreign or natural may have some importance in determining the degree of negligence of the processor of food, but it is not determinative of what is unfit or harmful in fact for human consumption. A bone natural to the meat can cause as much harm as a foreign substance such as a pebble, piece of wire, or glass. All are indigestible and likely to cause injury. Naturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served.

However, the reasoning of the Mix case has been followed by four intermediate appellate courts: Silva v. F. W. Woolworth Co., 1938, 28 Cal.App.2d 649, 83 P.2d 76 (implied warranty and negligence alleged), a turkey bone imbedded in the dressing of a special plate of roast turkey; Lamb v. Hill, 1952, 112 Cal.App.2d 41, 245 P.2d 316 (negligence alleged), a fragment of chicken bone in chicken pie; Goodwin v. Country Club of Peoria, 1944, 323 Ill.App. 1, 54 N.E.2d 612 (implied warranty and negligence), a bone in creamed chicken made from turkey meat (query: whether a turkey bone is natural to creamed chicken); Norris v. Pig'n Whistle Sandwich Shop, Inc., 1949, 79 Ga.App. 369, 53 S.E.2d 718 (negligence), a particle of bone in a barbecued port sandwich; and Davison-Paxon Co. v. Archer, 1954, 91 Ga.App. 131, 85 S.E.2d 182 (negligence), turkey bone in creamed turkey.

The naturalness doctrine was applied in Brown v. Nebiker, 1941, 229 Iowa 1223, 296 N.W. 366 (implied warranty and negligence), a sliver of a bone in a pork chop swallowed by the deceased; in Adams v. Great Atlantic & Pacific Tea Co., 1960, 251 N.C. 565, 112 S.E.2d 92 (implied warranty), a partially crystallized grain of corn in corn flakes; and in Shapiro v. Hotel Statler Corp., D.C.S.D.Cal., Central Div. 1955, 132 F.Supp. 891 (implied warranty), a fish bone in Hot Barquette of Seafood Mornay, made of several kinds of fish. The rule was recognized but held not applicable in Arnaud's Restaurant, Inc. v. Cotter, 5 Cir., 1954, 212 F.2d 883 (negligence and implied warranty), crab shell in fish dish. In...