Dickens v. Horn & Hardart Baking Co.

• Decision Date: 03 February 1965
• Parties: , 58 Del. 316 Ethel DICKENS and Ernest Dickens, Plaintiffs, v. HORN & HARDART BANK CO., a Pennsylvania corporation, Defendant.
• Court: Delaware Superior Court

Page 169

209 A.2d 169

8 Storey 316, 58 Del. 316

Ethel DICKENS and Ernest Dickens, Plaintiffs, v. HORN & HARDART BANK CO., a Pennsylvania corporation, Defendant.

Superior Court of Delaware, New Castle County.

Feb. 3, 1965.

Wilfred J. Smith, Jr., Wilmington, for plaintiffs.

E. N. Carpenter, II, of Richards, Layton & Finger, Wilmington, for defendant.

STOREY, Judge.

On April 10, 1961, plaintiffs, Ethel and Ernest Dickens, entered a restaurant operated by the defendant corporation in Wilmington, Delaware. After seating themselves at a table, plaintiffs ordered dinner from a waitress employed by the restaurant. In addition to the main course, Mrs. Dickens ordered and received a dish of coleslaw.

A visual inspection of the coleslaw revealed nothing unusual, and Mrs. Dickens began to eat the food without incident. While plaintiff was eating the coleslaw, she experienced a sudden pain in her upper right jaw, which subsequent investigation showed was attributable to a sliver of metal which had been concealed in the coleslaw.

Following first aid treatment at a local hospital, plaintiffs returned to their home, apparently believing the injury to be minor. On the next day, however, Mrs. Dickens experienced substantial pain and found it difficult to eat and to perform the duties of her employment. Accordingly, she contacted her family physician, who, in turn, referred her to a dentist and an oral surgeon. A tetanus injection and continuous consumption of antibiotics were prescribed as treatment, and X-ray examinations indicated that no pieces of the metal remained in plaintiff's body.

It appears from the testimony that the severe pain suffered by Mrs. Dickens subsided by the end of April, 1961, although apparently there was some minor residual pain. Unrebutted testimony by an oral surgeon who examined Mrs. Dickens at the request of defendant indicates that, at present, the area of the puncture wound is completely healed, without scarring, and there were no other objective signs of injury.

Both parties agree that Mrs. Dickens suffered no loss in wages or employment opportunities as a result of the incident. Although treatment for the wound itself apparently terminated soon after the accident, there is substantial evidence that Mrs. Dickens has been under treatment for a nervous condition which was not present prior to the accident. Specifically, it appears that Mrs. Dickens is reluctant, since the incident, to eat in restaurants and is abnormally circumspect in her examination of food prior to eating. Mr. Dickens testified that the personality of his wife has changed substantially since the incident and that his wife has become nervous and irritable.

The complaint filed by plaintiffs is predicated upon allegations of express and implied warranty and upon an allegation of negligence by defendant. With respect to the allegation of express warranty, plaintiff concedes that the evidence provides no foundation for such a contention and agrees that it may be treated as abandoned. The allegation of an implied warranty presents a more substantial question. The Supreme Court of this State has never ruled upon the question of whether or not the owner of a restaurant impliedly warrants to his patrons that the food is merchantable and fit for human consumption. In Roseberry v. Wachter, 3 W.W.Harr. 253, 33 Del. 253, 138 A. 273 (Del.Superior Court, 1925), the Court stated that a restaurant owner was not liable as an insurer, but only for the failure to use due care in the preparation and service of food.

This statement became the explicit holding of the Superior Court in Pappa v. F. W. Woolworth Co., 3 Terry 358, 42 De. 358, 33 A.2d 310 (1943), in which the Court held that Delaware would follow the then prevailing rule that the service of food in a restaurant does not constitute a sale of food, invoking the warranty provisions of the Sales Act. This holding was predicated upon the long-standing doctrine that a restaurant owner merely provides a license to eat food within his premises, and, therefore the patrons acquire no right to consume the food outside such premises.

As noted above the Court, in Pappa, adopted what it considered to be the majority rule prevailing in this nation. This rule, however, is now clearly the minority view. See Annotation, Implied Warranty of Served Food, 7 A.L.R.2d 1027. In addition, the rule often leads to absurd and contradictory results. For example, if the restaurant in question also provides 'take out' service, then entirely different rules of liability would apply to the service of the same food. See Amdal v. F. W. Woolworth Co., 84 F.Supp. 657 (U.S.D.C.N.D.Iowa, 1949). In addition, those Courts which have adopted this minority rule have often developed artificial and distorted distinctions to avoid the application of such rule. For example, it has been held that the owner of a cafeteria is liable upon a theory of warranty while a restaurant owner is not, since, in the former case, the patrons have a right to remove the food from the premises. See Sofman v. Denham Food Service, Inc., 37 N.J. 304, 181 A.2d 168 (1962). In any event, it is doubtful whether or not, as a practical matter, owners of restaurants refuse to allow their patrons to take home unconsumed portions of food.

While I recognize that the rule denying liability has been repudiated in a majority of sister jurisdictions and is factually indefensible, I am of the opinion that an overturning of the well settled rule now prevailing in this State should be done by either the Legislature or the Supreme Court. It is noted that the Uniform Commercial Code specifically repudiates the rule denying the existence of a warranty. See Section 2-314, U.C.C. The Uniform Commercial Code has not, however, been adopted by the General Assembly of this State. In view of the fact that I am of the opinion that plaintiff may prevail upon a theory of negligence, I decline, at this time, to refuse to follow the doctrine of the Court in Pappa v. F. W. Woolworth Co., cited supra.

Plaintiff's theory of...