Frankes, Inc. v. Bennett, 4-6126.

• Decision Date: 06 January 1941
• Docket Number: No. 4-6126.,4-6126.
• Citation: 146 S.W.2d 163
• Parties: FRANKES, Inc., v. BENNETT.
• Court: Arkansas Supreme Court

146 S.W.2d 163

FRANKES, Inc., v. BENNETT.

No. 4-6126.

Supreme Court of Arkansas.

January 6, 1941.

Appeal from Circuit Court, Garland County; Earl Witt, Judge.

Action by Violet L. Bennett against Frankes, Inc., to recover for injuries allegedly sustained by plaintiff by reason of having eaten sea scallops in defendant's cafeteria. From a judgment for the plaintiff, the defendant appeals.

Reversed and dismissed.

Martin, Wootton & Martin, of Hot Springs, for appellant.

Leo P. McLaughlin and Earl J. Lane, both of Hot Springs, for appellee.

McHANEY, Justice.

Appellee brought this action against appellant to recover damages for injuries she sustained by reason of having eaten sea scallops in appellant's cafeteria, which she alleged were unwholesome and unfit for human consumption. She relied upon an implied warranty of fitness of the food and prayed damages in the sum of $3,000. The answer was a general denial. Trial resulted in a verdict and judgment for $3,000, from which comes this appeal.

The principal reliance of appellant for a reversal of the judgment is that there is no evidence that the scallops were unwholesome and unfit for consumption, and that, therefore, the court erred in refusing to direct a verdict for it at its request. We agree with this contention.

The facts are without substantial dispute. Appellant operates a cafeteria in the city of Hot Springs, and, on Monday, January 15, 1940, appellee who is deputy city clerk, entered appellant's place of business for her noon meal, or luncheon, and ordered and ate sea scallops, a slaw salad composed of cabbage and carrots, corn bread sticks and a piece of cake. After eating her luncheon, she returned to her office in the City Hall, and about an hour later became violently ill with nausea, began vomiting, and was very sick. She was removed to her home and later in the afternoon she was taken to a hospital where Dr. Chamberlain attended her and washed out her stomach. She was discharged from the hospital the next afternoon and returned to her work the following Monday. She had never eaten scallops before and did not know how they tasted. She testified that they had a kind of a sharp, bitey taste. Another customer ate of the same scallops at her table and no complaint was made about the food by either while eating. On the part of appellant, it was shown that the scallops were purchased from a Boston dealer of excellent reputation and were shipped in a sealed can in ice and were received on Sunday afternoon, January 14, and were immediately placed in refrigeration at a temperature of about 35 degrees, or lower, and on Monday morning, January 15, were removed from the refrigerator, opened and prepared for consumption under proper sanitary conditions. The shipment contained 36 servings and all the contents of the can were prepared and served to 36 patrons on the same day, of which appellee was one. No complaint was received by appellant from any of the persons consuming said scallops except appellee, and four of those so eating of the...