Bishop v. Weber

• Decision Date: 18 June 1885
• Citation: 1 N.E. 154,139 Mass. 411
• Parties: Marie Bishop v. Frederick E. Weber
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 411

1 N.E. 154

Marie Bishop v. Frederick E. Weber

Supreme Judicial Court of Massachusetts

June 18, 1885

Argued March 3, 1885.

Argued March 4, 1885 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk.

Tort. Writ dated October 29, 1883. The declaration as originally filed contained two counts. On May 19, 1884, a demurrer to the declaration was sustained, and no exception or appeal was taken. At the same term, the declaration was amended by adding a third count, and by inserting certain words in the first and second counts. The plaintiff had also leave to amend her writ by adding after the word "tort" the words "or contract, the plaintiff being doubtful to which class of actions this action belongs."

The declaration as amended was as follows:

"1. And the plaintiff says, that, on or about May 7, 1883, she attended, with a large number of others, and whosoever wished and had tickets therefor, a musicians' ball, at the end of the triennial celebration of the Handel and Haydn Society in Boston, in said county, and had tickets therefor, and was rightly and properly present on that occasion; and she says that the defendant is by profession a caterer, and holds himself out to the public to be skilled in the preparation and compounding of foods and drinks, and claims to furnish the public with good and wholesome food and drink; and the defendant was employed to cater at said ball for all who might attend the same, whether more or less, if they so desired, and to furnish, for all who might wish, good and wholesome food and drink, and to be paid therefor, by each and every person who partook thereof, the sum of $ 1.25; and the defendant undertook and agreed to cater and furnish good and wholesome food at said ball, to whomsoever wished, and paid as aforesaid; and defendant did do the catering, and was himself present at said ball, and attended to overlooking and superintending the catering on said occasion, and furnished the attendants and waiters for that purpose, who waited upon and furnished the food and drink called for or eaten by each and every person.

"And the plaintiff says, she, having a lawful right to do so, having a ticket therefor purchased from the defendant, and paid for to the defendant, at the price of $ 1.25, ate of the food furnished by the defendant on that occasion, and given to her by the defendant or his waiters, and the same was partaken of by the plaintiff, trusting and believing that the same was wholesome and good, and safe to be eaten, and had been properly prepared by the defendant; but the plaintiff says said food was not good and wholesome, and properly prepared, but was improperly and negligently prepared, and was unwholesome, poisonous, dangerous, and unfit to be eaten, and by reason thereof the plaintiff was poisoned and greatly injured, and made very sick, and endured thereby for a long time, even to the present time, great pain and suffering, and was subjected, by reason thereof, to great expense for medical attendance and medicine, and was obliged to have, and did have, nurses to wait upon and attend her in her sickness, and massage treatment; and she further says, by reason thereof, she was not able to attend to her usual and ordinary duties in her profession of music, and was so unable to attend to them for many months, and is still so unable to attend to them, and was lastingly and permanently injured.

"And she further says, that, at the time she was so poisoned and injured, she had made contracts and engagements to sing at concerts and give music lessons, and by reason of said poisoning and sickness she was unable to fulfil her contracts and engagements, and was subjected, by reason thereof, to great pecuniary loss; and she says further, that, by reason thereof, she was obliged to live in a different manner and at a greater expense than she otherwise would have done, not only in having nurses, medicine, and medical attendance, and massage treatment, but to obtain, at a great expense, delicacies she otherwise would not have had to obtain, and to go away to the sea-shore and other places, at great expense, for the recovery of her health.

"2. And, for a second and further cause of action, the plaintiff says, that, on or about May 7, 1883, a musicians' ball at the end of the triennial celebration of the Handel and Haydn Society, was held in Boston; that she attended the same, having a lawful right to do so, with a large number of others, and whoever wished to, and had a ticket therefor; that at said ball refreshments and supper were furnished to all those who wished and had tickets therefor, to wit, supper tickets so called, paid for the same at $ 1.25 per plate; that the defendant, being a professional caterer, and holding himself out to furnish good and wholesome food and drink, and to be skilled in the preparation of the same, undertook and agreed to do the catering at said ball, and furnish proper, good, and wholesome food and drink for same, to whomsoever wished and had tickets therefor, and paid therefor the sum of $ 1.25 per plate; and plaintiff says the defendant did the catering at said ball, and was present and superintended the same, and furnished the attendants and waiters therefor, who waited upon and furnished each and every person who wished for food and drink; and defendant furnished tables and chairs and all things necessary to the catering on said occasion. And the plaintiff says that she, having a lawful right to do so, and having a ticket therefor, partook of the food and drink furnished by the defendant on that occasion, trusting and believing that the same was good and wholesome, and fit and suitable to be eaten, and had been properly and carefully prepared by defendant; but the plaintiff says said food and drink were not good and wholesome and properly prepared, but were improperly and negligently prepared, were poisonous, unwholesome, and unfit to be eaten,...