Franklin v. Argyro

• Decision Date: 22 May 1924
• Docket Number: 6 Div. 97.
• Citation: 100 So. 811,211 Ala. 506
• Parties: FRANKLIN v. ARGYRO.
• Court: Alabama Supreme Court

100 So. 811

211 Ala. 506

FRANKLIN v. ARGYRO.

6 Div. 97.

Supreme Court of Alabama

May 22, 1924

Rehearing Denied June 26, 1924.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by R. N. Franklin against Gus G. Argyro, doing business as the Metropolitan Café. Judgment for plaintiff in unsatisfactory amount, and he appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. Affirmed.

Nesmith & Garrison and Thos. J. Judge, all of Birmingham, for appellant.

Gibson & Davis, of Birmingham, for appellee.

SAYRE J.

Appellant, as plaintiff in the trial court, recovered judgment against appellee for that appellee, a purveyor of food, a restaurateur, served him a centipede with his food but, being dissatisfied with the damages assessed, prosecutes this appeal. Only such alleged errors are to be considered as may have affected the quantum of damages. Rulings on demurrer to the complaint are assigned for error; but, for a reason to be hereafter stated, error in such rulings, if any, need not be considered.

Plaintiff's case was about like this: Plaintiff and a companion went into defendant's place of business and ordered roast beef and mashed potatoes. After eating a part of the food set before him plaintiff discovered the corpse of a centipede in his gravy. This insect-to follow careless usage in so speaking of it-was nearly two inches long, with many legs, scales along its back, and two horns in front. Such things come to this country in bunches of bananas from the tropics. Plaintiff called his companion's attention to the thing, and then consulted a prohibition officer, who happened to be near at hand, but learned from them nothing to his advantage. Then one of defendant's waiters advised plaintiff not to eat it, and offered to serve something else; but so far was plaintiff from needing this advice or craving other food that then and there he ejected upon the floor what he had eaten and left the place. Afterwards he was sick and continued so for a day or two. Defendant Argyro and his witnesses Tom Gerontakis and Spiro Cortex, waiters, denied plaintiff's story in toto, intimating-unjustly, we think-that maybe soft drinks, which plaintiff and his companion had taken, had something to do with his trouble; but we treat the foregoing statement of facts as indisputable on this appeal because a jury, sustaining appellant's contention, has so found in substance.

The...