C.C. Hooper Cafe Co. v. Henderson, 6 Div. 759.

• Decision Date: 29 October 1931
• Docket Number: 6 Div. 759.
• Citation: 223 Ala. 579,137 So. 419
• Parties: C. C. HOOPER CAFÉ CO. v. HENDERSON.
• Court: Alabama Supreme Court

137 So. 419

223 Ala. 579

C. C. HOOPER CAFÉ CO. v. HENDERSON.

6 Div. 759.

Supreme Court of Alabama

October 29, 1931

Rehearing Denied Nov. 19, 1931.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages by Ethel Henderson against the C. C. Hooper Café Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

B. F Smith, of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

BOULDIN J.

The action is to recover damages for personal injuries for alleged negligence of the proprietors of a public café, or their employees, acting within the line and scope of employment, in serving to a customer food unfit for human consumption, from which plaintiff was made sick.

The first insistence of appellant is that a case of negligence was not made out; that defendant was due the affirmative charge.

In some jurisdictions it is declared that in serving food at a public eating house there is an implied warranty that it is fit for the uses for which it is prepared and sold. This is but the adoption of the general rule in the sale of articles for definite uses. In other jurisdictions the doctrine of implied warranty is not applied. 26 C.J. p. 786, § 95.

In this state a limited warranty is recognized, viz.: That the food served is of the class generally accepted as fit for human consumption, and that in the selection and preparation of same the keeper has exercised the degree of care enjoined by law.

This degree of care is defined in the following carefully chosen words: "The law requires that, in the selection of the food for his restaurant and in cooking it for his customers he shall exercise that same degree of care which a reasonably prudent man, skilled in the art of selecting and preparing food for human consumption, would be expected to exercise in the selection and preparation of food for his own private table." Travis v. L. & N. R. Co., 183 Ala. 415, 424, 62 So. 851, 854; Id., 192 Ala. 453, 68 So. 342.

Negligence in actions of tort is the failure to observe this degree of care. Travis v. L. & N. R. Co., supra.

This case was approved and followed in Greenwood Café v. Lovinggood, 197 Ala. 34, 72 So. 354, and George's Restaurant v. Dukes, 216 Ala. 239, 113 So. 53.

In Sheffer v. Willoughby, 163 Ill. 518, 45 N.E. 253, 34 L. R. A. 464, 54 Am. St. Rep. 483, cited as authority in the Travis Case above, proof that plaintiff ate the food and in consequence became sick was held not to make out a prima facie case of negligence, nor shift the burden to defendant.

In view of the many things, other than unfitness of the food, such as time, place, quantity, state of health, feelings, physical or mental, personal idiosyncrasy or intolerance to particular foods, etc., which may cause sickness in consequence of the eating, we are not disposed to question the rule so stated. Negligence, or breach of duty, is not to be presumed.

The fact that sickness followed and circumstances tending to show it was the result of taking the food supplied are elements of the case proper to be proven. Greenwood Café v. Lovinggood, supra.

In the case before us, evidence for plaintiff tended to show she was served an order including fish, fried red snapper; that she ate a portion; that ill effects were felt promptly, and developed into a sickness having the symptoms of ptomaine poisoning, and so diagnosed by the attending physician who testifies as a professional witness. Her testimony is to the further effect that the fish did not taste right, and, after taking some three bites, she desisted eating, and discovered the fish had an unpleasant odor. Some discoloration is also indicated in her testimony. Other evidence negatived any idiosyncrasy as to fish.

There is evidence that spoiled fish may be readily detected by the senses of sight, touch, and smell. Fish, it appears, degenerates quickly, especially when taken out of refrigeration. Spoiled fish, it further appears, is the more hazardous as food because of the danger of ptomaine poison therefrom.

Reasonable care in the preservation and preparation of fish as a food takes into account all these factors.

Suffice to say the evidence made a case for the jury on the issue of negligence and injury as a proximate consequence.

Defendant's evidence tended to show due care in the procurement, preservation, and preparation of fish served as food. With much detail the method of handling red snapper fish from the time they are taken in the waters of the Gulf to the time they are served in the café was gone into.

Beginning for present purposes, with the purchase of the day's supply in question from a responsible dealer after inspection by the health authorities, and their further inspection when received by defendant, it appears the fish were kept in an ice box packed in ice, until called for in the kitchen. Plaintiff, in the course of cross-examination, raised...