Crocker v. Baltimore Dairy Lunch Co.
| Decision Date | 27 February 1913 |
| Citation | 214 Mass. 177,100 N.E. 1078 |
| Parties | CROCKER v. BALTIMORE DAIRY LUNCH CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jas. A McGeough, of Boston, for plaintiff.
Walter B. Grant and Henry E. Whittemore, both of Boston, for defendant.
This case was submitted to the jury on the question solely of the defendant's negligence, the plaintiff having declined to amend his declaration by adding a count in contract. The only question raised is whether the evidence warranted a finding for the plaintiff upon that issue. Whether the plaintiff might have relied upon an implied warranty by the defendant that its food was pure and wholesome (see Farrell v Manhattan Market Co., 198 Mass. 271, 274, 84 N.E. 481, 5 L. R. A. [N. S.] 884, 126 Am. St. Rep. 436, 15 Ann. Cas 1076, and Roberts v. Anheuser Busch Brewing Ass'n, 211 Mass. 449, 451, 98 N.E. 95), is not now to be considered.
After a careful examination of the record, we find no affirmative evidence of such negligence. The testimony put in by the plaintiff went no further than to show that he bought and ate the defendant's food and became sick, from what the jury might find to have been ptomaine poisoning due to the food which he had eaten. The defendant's testimony indicated that all its food supplies had been purchased from well known and reputable dealers; that its poultry was procured from a firm of wholesale dealers in poultry, under a contract which called for 'fresh killed poultry, large plump birds,' and that there could be no better poultry than that which it received from them. There was testimony to be sure that the larger part of this poultry came from Indiana and Illinois and had been killed there; but there was nothing to show that this fact was or should have been known to the defendant, or that any part of the poultry came from cold storage. The ham used by the defendant was bought from a large dealer in meats ready cooked, one ham each day, according to its evidence; its coffee was of a good grade and made on the premises. There was evidence also of strict inspection by the defendant of the food supplies that it received from the dealers, and of great care and cleanliness in the preparation of the food sold by it; that whatever was left unsold at the end of each day was not afterward served to customers, but was thrown away, and that the defendant's premises were carefully kept clean and sweet. Of...
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