Child's Dining Hall Co. v. Swingler, 31.
| Decision Date | 14 January 1938 |
| Docket Number | No. 31.,31. |
| Parties | CHILD'S DINING HALL CO. v. SWINGLER. |
| Court | Maryland Court of Appeals |
CHILD'S DINING HALL CO.
v.
SWINGLER.
No. 31.
Court of Appeals of Maryland.
January 14, 1938.
OFFUTT and URNER, JJ., dissenting.
Appeal from Baltimore City Court; Robert F. Stanton, Judge.
Action by Julia Swingler against the Child's Dining Hall Company, sometimes known as the Child's Company, for injuries sustained by plaintiff through biting into a piece of tin contained in bread which had been served to her by the defendant in one of its restaurants for consumption on the premises. From a judgment for the plaintiff, the defendant appeals.
Reversed, and a new trial awarded.
Argued before BOND, C. J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.
Douglas N. Sharretts and Rignal W. Baldwin, Jr., both of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellant. Albert A. Sapero, of Baltimore, for appellee.
SHEHAN, Judge.
This is an appeal from a judgment against Childs Dining Hall Company, a body corporate, operating a chain of restaurants in the city of Baltimore, in favor of Julia Swingler, plaintiff below and here the appellee.
The questions presented for our consideration by this appeal arise on the ruling on a demurrer to a second amended declaration and on prayers offered at the conclusion of all the testimony. Demurrer prayers offered at the end of the plaintiff's case were refused as to Childs Dining Hall Company and granted as to Ward Baking Company, originally one of the defendants. Demurrer prayers were reoffered by the appellant at the conclusion of the testimony on both sides, and were refused. There is an exception to the granting of a prayer submitting the case on the theory of an implied warranty that the food supplied was "fit for human consumption" and that if it was found by the jury that the food when served contained foreign substances and was unfit for human consumption and the plaintiff was injured thereby, that the plaintiff was entitled to recover, and an exception to the rejection of another prayer of the defendant designed to refute the theory of an implied warranty. Thus the questions here involved are clearly presented by these rulings on the demurrer to the declaration and on the prayers.
The facts are few and simple and there is no dispute about them. The principal question for our consideration has never been passed upon in this state, and has been the subject of great controversy in numerous
jurisdictions and of much diversity of opinion by learned jurists and writers throughout the country.
The plaintiff entered a restaurant of Childs Dining Hall Company. She was directed by an employee to a table and ordered a crab cake sandwich and there proceeded to eat her lunch. When she had about finished, while eating a "small portion of bread," a piece of tin, one-eighth inch by one-half inch, was driven into her gum between her teeth, whereby she was injured. She states that: "* * * the hostess met me at the door and escorted me to a seat. The day was rather warm, and I ordered a crabcake sandwich on rye bread and a glass of beer. I had consumed all the sandwich, but a small portion. I had an appointment for half-past two, and I had plenty of time, so I just sat there, and I had a small portion of the beer left in the glass, and a small portion of the bread of the sandwich, and for some reason or other, I bit down on this object which caused an excruciating pain and made me rather sick, and I put my hand over my mouth —I don't know whether the waitress noticed me, but I know she asked me if anything was wrong, and I told her I had something in my tooth, and I felt pretty ill and I asked for the lavatory, and she showed me to the steps and immediately, the hostess came down behind me and went with me to the lavatory. I had food in my mouth and, of course, I did not speak very plainly, and she helped me to dislodge this object."
The original declaration was laid in tort and charged the defendant, the appellant here, and Ward Baking Company, the manufacturer of the bread, with want of due care and negligence. The amended declaration changes the form of action from tort to an action of assumpsit and alleges that: "* * * the plaintiff entered the restaurant of one of the defendants herein, the Childs' Dining Hall Company, sometimes known as Childs' Company, a body corporate, and ordered a crabcake sandwich, and while eating the bread, baked and manufactured by the defendant, the Ward Baking Company, a body corporate, which was served by the employees of the Childs' Dining Hall Company, sometimes known as Childs Company, a body corporate, the plaintiff bit into a piece of tin, which was attached to and lodged in the bread and unseen by the plaintiff, and was thereby painfully injured about her teeth, gums, and upper roof of her mouth; that the relationship and manner of dealing with the plaintiff as a customer in the purchase and use of said sandwich justified her in the belief that it was free from hidden and dangerous articles and that said crabcake sandwich, ordered and purchased by the plaintiff was impliedly represented or warranted by the defendants as to quality and fitness for use and to be non-injurious to the health of the plaintiff and free from any foreign substance and fit for human consumption; that as a result of said injuries, the plaintiff was confined to her bed and was compelled to have extracted two (2) teeth, following an abscess caused from said injuries; and the plaintiff further says that she has suffered serious and permanent injuries to her teeth and is still suffering from said injuries, and has expended considerable monies for medicines, medical and dental bills, and has lost part of her means of a livelihood in being unable to practice her profession as a nurse."
The question now presented, as conceded by both parties, is whether the restaurant keeper, in the serving of food, gives an implied warranty to the customer that its food is wholesome, free from injurious substances, of merchantable quality, and fit for human consumption. This question is so close and so greatly controverted that cases only similar in character are not helpful as precedents. To illustrate, a sharp distinction is made between the supplying of food in a restaurant, to be immediately consumed on the premises (together with those accompanying services afforded by the proprietor), and with those cases where food is sold in containers, or otherwise, to be taken away and consumed at some other time and place, or with suits against manufacturers, each class of such cases are the subject of much litigation and difference of opinion. There are numerous cases and diversity of opinion as to foreign substances or poisonous conditions of food contained in sealed cans, as well as upon the question here presented. In the State of New Jersey, it has been held by the Supreme Court that a retail dealer is responsible for an injury by poisonous or unwholesome food contained in a sealed package, Griffin v. James Butler Grocery Co., 108 N.J.L. 92, 156 A. 636, but that a proprietor of a restaurant is not responsible under an implied warranty for the poisonous quality and injurious condition of food that he serves for immediate consumption in his place of business. Nisky v. Childs Company, 103 N.J.L. 464, 135 A. 805,
50 A.L.R. 227. The major difference of opinion arises out of the question whether in a restaurant one merely purchases a service or enters into a contract for the sale of food or merchandise. If the sale theory of the transaction prevails and the implied warranty in consequence thereof is given, then the restaurant keeper or inn keeper becomes, in law, practically an insurer, and the proof required for a recovery is restricted to the payment for the service, including the furnishing of the food consumed on the premises and the injury complained of. On the other hand, if what an inn keeper or restaurant keeper does is only the supplying of a service for certain compensation, the question is one of negligence.
The measures of damages in tort and on an implied warranty in most cases are different. It is contended on the part of the defendant (appellant) in this case that the damages to be recovered on a sale are only the difference in the value of the food contracted for and the value of the food delivered, which, in a case of this kind, is negligible, however serious the consequences and the personal injury. This question was presented by a prayer of the defendant, which was refused. We conceive the rule in a case like this to be not the difference in value of a good loaf and a bad loaf, but fair compensation for the injury occasioned. Ryan v. Progressive Stores, 255 N.Y. 388, 175 N.E. 105, 107, 74 A.L.R. 339, where the learned Justice (Cardozo) stated: "The argument is made that the only damage to be recovered for the breach of the warranty of merchantable quality is the price of the bread, the difference between the value of a good loaf and a bad one. The rule is not so stubborn. Undoubtedly, the difference in value supplies the ordinary measure. * * * The measure is more liberal where special circumstances are present with proof of special damage. * * * Here the dealer had notice from the nature of the transaction that the bread was to be eaten. Knowledge that it was to be eaten was knowledge that the damage would be greater than the price."
In other words, the latter view is to give to a plaintiff substantially the same measure of damages for a breach of the alleged warranty as is given in an action for negligence. These, and many kindred questions, because of the changed order of things in the distribution of food, are being constantly asserted in the courts, but on this appeal it seems to us that the single question presented is: Does the supplying of food in a restaurant constitute a sale under the Uniform Sales Act, article 83, section 36, or under the common law, carrying an implied...
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