DeStefano v. Alpha Lunch Co. of Boston

• Decision Date: 03 January 1941
• Parties: DESTEFANO v. ALPHA LUNCH CO. OF BOSTON. VAIDA v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 38

30 N.E.2d 827

DESTEFANO

v.ALPHA LUNCH CO. OF BOSTON.

VAIDA

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 3, 1941.

Actions by Rilla Pierce (DeStefano as amended) and by Mary Pierce (Vaida as amended) against the Alpha Lunch Company of Boston for breach of implied warranty of fitness of food. From an order of the Appellate Division ordering judgment for the defendant, the plaintiffs appeal.

Affirmed.Appeal from Municipal Court of Boston, Appellate Division; Tomasello, judge.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.

E. S. Tyler, of Watertown, for plaintiffs.

R. W. Cornell, of Boston, for defendant.

LUMMUS, Justice.

The plaintiffs in these actions for breach of the implied warranty of fitness of food under G.L.(Ter.Ed.) c. 106, § 17(1) (Schuler v. Union News Co., 295 Mass. 350, 4 N.E.2d 465) are sisters who worked for the defendant, every day except Sunday, in one of its restaurants in Boston. Each took two meals a day, except Sunday, at the restaurant. These meals were valued by the parties at $3 a week, and the only difference in the testimony is that each of the plaintiffs stated her weekly pay as a certain number of dollars from which the sum of $3 was deducted for the meals, while the manager of the defendant's restaurants in which they worked stated the weekly pay of each as a sum $3 less, plus meals. If they should fail to take all the meals to which they were entitled, they would receive no more money. They went for their meals to the restaurant counter, like ordinary customers of the defendant, but at times not within their working hours. It must be taken that their meals formed part of their pay.

Both plaintiffs became ill about Sunday, June 20, 1937, with what proved to be trichinosis, a disease caused by living parasites found in nothing commonly used as food except insufficiently cooked meat of the pig. Trichinae mate and propagate in the body, and their young burrow in the tissues and cause illness which is relieved only by their becoming encysted and thus made comparatively though not completely harmless. The evidence was that a period of from three days to a week elapses between the time of eating infested meat and the time the disease is observed. During the two weeks preceding the onset of the disease the plaintiffs testified that they ate pork and other products of the pig at the defendant's restaurant, and nowhere else. The plaintiffs were confined for some time in a hospital, and were disabled for more than a month.

Passing without discussion the question of notice under G.L.(Ter.Ed.) c. 106, § 38, that has been argued, we come to the question whether the introduction into the body of trichinae which caused illness constituted, under the circumstances of this case, a ‘personal injury’ under the Workmen's Compensation Act, G.L.(Ter.Ed.) c. 152, § 26, and one ‘arising out of and in the course of his employment’ within the same section. The defendant was insured under that act, and the plaintiffs had made no reservation of common-law rights under section 24.

What happened to the plaintiffs constituted a ‘personal injury’ within the Workmen's Compensation Act. It differed from the inhalation of germs of disease, illustrated by Smith's Case, Mass., 30 N.E.2d 536. It resembled more the cases of poisoning therein cited, and Osterbrink's Case, 229 Mass. 407, 118 N.E. 657, where the employee drank muriatic acid by mistake for water.

Likewise, what happened to the plaintiffs constituted a personal injury ‘arising out of and in the course of [their] employment.’ True, they were not working for the defendant while eating. But their meals were part of their pay, and so were connected with their employment. The risk of injury in the eating of the meals was in principle like the risk of injury in the collection of their pay in money or in other benefits. Where one of the benefits promised to an employee by the terms of the employment is transportation to or from work, an injury during that transportation has been held to arise ‘out of and in the course of his...