Doyle v. Fuerst & Kraemer, Limited.

• Decision Date: 11 December 1911
• Docket Number: 19,025
• Citation: 56 So. 906,129 La. 838
• Parties: DOYLE v. FUERST & KRAEMER, Limited. In re FUERST & KRAEMER, Limited
• Court: Louisiana Supreme Court

56 So. 906

129 La. 838

DOYLE v. FUERST & KRAEMER, Limited.

In re FUERST & KRAEMER, Limited

No. 19,025

Supreme Court of Louisiana

December 11, 1911

Certiorari to Court of Appeal, Parish of Orleans.

Action by Joseph Doyle against Fuerst & Kraemer, Limited. Application by defendant for certiorari or writ of review to a judgment in the Court of Appeal in favor of plaintiff. Judgment affirmed.

Carroll Henderson & Carroll, for applicant.

Teissier & Teissier, for respondent.

OPINION

PROVOSTY J.

The defendant keeps a confectionary where refreshments are served to the public to be consumed on the premises. Plaintiff alleges that he was ptomaine poisoned from having eaten cakes and chocolate with whipped cream at defendant's establishment, and demands $ 750 damages for the sufferings caused by the illness.

The defense is that the said food was wholesome, and plaintiff was not poisoned; but that, if he was, defendant is not responsible, because not guilty of any negligence; and that, at all events, the measure of the damages is simply the restitution of the price.

We agree with the trial court and with the Court of Appeal in finding that plaintiff was poisoned as alleged. He partook of the said refreshments at about 11 o'clock at night, and, on leaving defendant's establishment, went home and to bed, after having escorted to her home a lady who accompanied him; and at about 5 o'clock the next morning the symptoms of the poisoning manifested themselves. He had taken no other food during that day or the day before except such as all his family had shared with him without being made sick. The lady who accompanied him at defendant's establishment on the occasion in question ate ice cream and cakes, and was, like him, taken sick during the night from ptomaine poisoning.

In proof of absence of negligence on its part, defendant produced its purchasing agent and its head baker and the traders from whom it buys its flour, sugar, eggs, and butter. The clerk testified that he purchased none but the best flour, sugar, eggs, milk, and butter, and that great care was exercised in keeping everything about defendant's establishment clean. The baker testified that he took great care to keep things clean, and that they were kept so. On cross-examination, he said that an investigation had been made of defendant's establishment by the health authorities in the early part of 1909, and that some two months before the time of his testifying the boss had told him of a young man having been made sick. Comparison of dates shows that this young man was not plaintiff, and that the board of health's investigation was some nine months before the poisoning of plaintiff. The traders called as witnesses testified that defendant bought none but the best flour, sugar, eggs, and butter.

This evidence falls short of showing even ordinary care, since it contains not a word touching the time when the particular eggs, milk, cream, and butter served to plaintiff and his lady companion had been bought, or when the ice cream, cakes, and chocolate had been made; so that, for what appears, the materials out of which these refreshments had been made may have had ample time to deteriorate on defendant's hands, and the refreshments themselves may have been of long standing -- kept on hand indefinitely until they should be disposed of in due course of business.

The principle which governs in this case is that every one ought to know the qualities, good or bad, of the things which he fabricates in the exercise of the art, craft, or business of which he makes public profession, and that lack of such knowledge is imputed to him as a fault, which makes him liable to the purchasers of his fabrications for the damage resulting from the vices or defects thereof which he did not make known to them and which they were ignorant of.

This principle obtains both in the civil and the common law, as appears from the excerpts hereinafter given.

It is needless to consider what qualifications or restrictions this principle may suffer in particular cases. Suffice it to say that it has full play in the present case, where chocolate and cakes were sold at a public eating place to be consumed on the premises. It is easily possible for the keeper of such a place to know in all cases whether the eggs, milk, and butter he sells, or the articles of food he has made out of them, are fresh and fit for human consumption. He is therefore at fault if these articles prove to be vitiated and deleterious.

The measure of damages in a case of this kind, where there was no actual knowledge of the vices of the things sold, but only an imputed knowledge, is not simply reimbursement of the price, as contended by defendant, but liability on the part of the seller for all the damages that were foreseen, or could easily have been foreseen, as likely to result from the putting of the thing sold to the use for which it was sold. This fully appears from the excerpts hereinafter given.

It is common knowledge, to which the keeper of a public eating place must be held, that food in which the process of decomposition has begun is liable to make the person who eats it ill. Indeed, we do not think there can be any serious difference of opinion on the point that an eating establishment which sells unwholesome food to be consumed by its customers must be held to have contemplated the probable effects of such tainted food upon the customer.

The sole question must then be as to what amount of damages was caused to plaintiff by his illness. He says he was attacked with intense pains in the stomach, with vomiting and great looseness of the bowels; that he tried to get a physician at once, but did not succeed in getting one for two hours; that until the physician came he was badly frightened, thinking himself in danger of death; that he remained in bed that day; that he continued to have pains in his stomach for about a month; that this illness brought on an attack of jaundice which lasted about six weeks.

The physician testified that he found plaintiff prostrated and in a stupor, with small, weak pulse, and that plaintiff was vomiting, and suffering from cramps in the bowels, which seemed to be intense.

The Court of Appeal allowed $ 100 damages.

Excerpts Bearing Upon Imputed Fault.

In the case of McCubbin v. Hastings, 27 La.Ann. 713, where a druggist's clerk had by mistake sold spirits of camphor instead of camphor water for the purpose of an enema, and the plea of absence of negligence was made, this court said:

"It may, however, be assumed that he was competent. The defendant's liability would be none the less certain. The defendant is himself represented as being a most competent druggist. If he had made the mistake, would his proficiency in his calling shield him? Or would it not rather aggravate the fault? Incompetency and carelessness, and such mistakes, arise from one or the other of these causes -- result in the same way. Either or both produce suffering and sometimes death. And can it be that if a physician should prescribe for a slightly ailing patient a small quantity of calomel and soda, and the druggist were to substitute arsenic for soda, that he could shield himself from the consequence which might result by saying, if the prescription was compounded by himself, that it was a mistake, and, if the act of his servant, that he could not have prevented it? The law does not place a community in the position of being poisoned by mistake, with no one to be held responsible therefor. If it was the master who did the wrong, the master is responsible. If it was his servant who did it, he is still responsible, for the master is responsible for the acts of his servant when done in the course of his usual employment."

From 2 Kent, 588:

"Every man is presumed to possess the ordinary skill requisite to the due exercise of the art or trade which he assumes. Spondet peritiam artis, and imperitia culpae annumeratur" -- citing Digest 19, 2, 25, 7.

From Pothier, Vente, § 214:

"There is a case where the vendor, although he was entirely ignorant of the vice of the thing sold, is nevertheless bound to repair the damage which this vice may have caused the vendee in his other property; it is the case where the vendor is a workman or a merchant who sells the fabrications of the art or trade of which he makes profession. Such workman or merchant is bound to repair whatever damage the buyer may have suffered from the vice of the thing sold in putting it to the use for which it was intended, even if such workman or merchant should pretend to have been ignorant of said vice.

"The reason is that a workman, by reason of the profession which he makes of being skilled in his craft, spondet peritiam artis (makes the solemn promise, or gives the solemn pledge, of his proficiency in his art). He renders himself responsible towards all those who contract with him, for the things he makes being fit for the use to which they are naturally destined. His unskillfulness or lack of knowledge in all that concerns his art is a fault which is imputed to him, as no one should publicly make profession of an art if he is not possessed of all the knowledge necessary for exercising it well; imperitia culpae annumeratur (incompetency is reckoned a fault). Dig. L. 132, Reg. Juris."

From Dalloz, Codes Annotes, art. 1645, Nos. 15, 16:

"But there is an hypothesis under which the purchaser will not be required to make this proof" (the proof that the vice was apparent, or that the vendor had knowledge of it). "It is where, by reason of the profession which he exercises, the vendor should have known even the hidden defects of the things he sells.

Thus even though the vendor was ignorant of the vices of the thing sold, if by...