Friend v. Childs Dining Hall Co.

• Decision Date: 11 September 1918
• Citation: 231 Mass. 65
• Parties: FLORENCE S. FRIEND v. CHILDS DINING HALL COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 65

FLORENCE S. FRIEND v. CHILDS DINING HALL COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

September 11, 1918

November 15, 1917.

Present: RUGG, C J., BRALEY, CROSBY, PIERCE, & CARROLL, JJ.

Innkeeper. Restaurant Keeper.

Food. Contract Implied, Negligence of plaintiff. Words, "Victualler.

"

Where a restaurant keeper in response to the order of a guest furnishes food to be eaten on the premises, whether or not the transaction constitutes a sale, there is an implied contract on the part of the restaurant keeper that the article furnished as food is fit to eat.

CROSBY, J dissenting.

In an action of contract against a restaurant keeper for furnishing food to the plaintiff to be eaten on the premises which was not fit to eat, it was said that, assuming that the provision of the sales act contained in

St. 1908, c.

237, Section 15 (3), that, "If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed," applied to such an action, and assuming, contrary to the circumstances of the case, that it was the plaintiff's duty to examine the food before eating it, it would be a question of fact whether rational investigation was made by the plaintiff respecting the character of the food set before her and whether the noxious nature of the thing which caused the harm reasonably ought to have been discovered.

TORT OR CONTRACT for injuries sustained by the plaintiff in attempting to eat foreign matter furnished to her as food at the defendant's restaurant in Boston on July 12, 1915, the declaration containing a count in tort for personal injuries and a count in contract, which is quoted below. Writ dated December 4, 1915, and amended on January 2, 1917, by adding the words "or contract."

The second count, on which the plaintiff elected to rely, waiving her first count, was as follows: "Count 2. Now comes the plaintiff in the above entitled action and says that the defendant corporation owned, conducted and managed a dining hall or lunch room in Boston, County of Suffolk; and was there doing business with and for the accommodation of the public; that on or about July 12, 1915, on the request and invitation of the defendant in its said lunch room the plaintiff ordered and bought of said defendant and said defendant sold and delivered to the plaintiff certain food for the purpose and with the express understanding that said food was to be then and there eaten by the plaintiff; that in consideration of the price agreed to be paid and actually paid by said plaintiff for said food, the defendant promised and under implied warranty represented that said food furnished was and would prove to be in a good and wholesome condition and fit to eat; that the plaintiff relied on the defendant's skill and judgment in the selection and preparation of said food then and there paid for and ate said food that said food so selected, delivered and furnished by said defendant for the purpose of being eaten by said plaintiff, was not in a wholesome condition and fit to eat but was unwholesome, contained foreign matter and was otherwise unfit to be eaten whereby the plaintiff in the exercise of due care while eating said food was injured, was made sick, suffered pain of body and anguish of mind, was put to expense for medicines, dental and medical treatment, was unable to perform her usual labor and was otherwise put to loss and damage."

The answer contained a general denial, and also alleged that the plaintiff at the time of the alleged injury was not in the exercise of due care.

In the Superior Court the case was tried before Bell, J. The plaintiff's evidence is described in the opinion. At the close of the plaintiff's evidence, the defendant asked the judge to order a verdict for it. Whereupon the judge with the consent of the parties reported the case for determination by this court and, the parties agreeing upon $150 as the amount of the damages, the judge ordered the jury to return a verdict for the defendant, with leave reserved, with the consent of the jury, to enter a verdict for the plaintiff for $150 if this court should decide that the ordering of the verdict was wrong and that the plaintiff was entitled to recover; otherwise, the verdict for the defendant was to stand.

St. 1908, c.

237, Section 15, begins as follows:

"Section 15. Subject to the provisions of this act and of any other statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.

"(2) Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality.

"(3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed."

J. H. Baldwin & C.

H. Donahue, for the plaintiff, submitted a brief.

F. H. Smith, Jr., for the defendant.

RUGG, C. J. There was evidence tending to show that the defendant kept in Boston a restaurant, in which the plaintiff ordered from one of the waitresses, "New York baked beans and corned beef." This food was served to the plaintiff and she sat at a table to eat it. She testified, "I started to eat the food and there were two or three dark pieces which I thought were hard beans, that is, baked more than the others, and I put two in my mouth and bit down hard on them, and . . . I was hurt. . . . I took those things out of my mouth and found they were stones." There was no further evidence that the plaintiff had anything to do with the selection of the beans. She gave no instructions respecting the food other than to order it. There was no evidence of express warranty or that the defendant knew of the presence of the stones in the food. There was evidence of injury to the plaintiff. At the close of the evidence the plaintiff elected to rely upon a count for breach of an implied warranty of fitness to eat in a contract for food to be eaten on the premises of the defendant. The defendant introduced no evidence. The question is whether the plaintiff was entitled to go to the jury.

There is strong ground for holding that the contract made between one who keeps a restaurant and one who resorts there for food to be served and eaten on the premises is a sale of food. The evidence in Commonwealth v. Worcester, 126 Mass. 256 , was that on two or three different occasions people resorted to the defendant's dwelling house and there were served with meals; with these and as a part thereof intoxicating liquors were provided. The price paid was single, including both food and drink. The complaint was for keeping a tenement used for the illegal sale and illegal keeping for sale of intoxicating liquors. It was held that "The purchase of a meal includes all the articles that go to make up the meal. It is wholly immaterial that no specific price is attached to those articles separately. If the meal included intoxicating liquors, the purchase of the meal would be a purchase of the liquors. It would be immaterial that other articles were included in the purchase and all were charged in one collective price." That decision rests entirely upon common law principles as to sales and St. 1875, c. 99, Section 17, then in force (now R.L.c. 100, Section 64), making delivery of intoxicating liquor under certain circumstances prima facie evidence of sale, was not adverted to and very likely was not applicable to the facts there presented. Precisely the same point was held in State v. Lotti, 72 Vt. 115. The defendant in Commonwealth v. Warren, 160 Mass. 533, was charged with selling milk not of good standard quality contrary to St. 1886, c. 318, Section 2. The evidence was that a guest at the inn of the defendant conducted on the American plan was served as a part of his breakfast, for which he paid a single price, with a glass of milk not of the quality required by the statute. It was said in the course of the opinion holding that the defendant might be found guilty, "The milk bought by the witness Kelly was purchased by and delivered to him as a part of his breakfast, and was just as much a sale as if a specific price had been put upon it, or it had been bought and paid for by itself." Similar decisions have been made by other courts. In People v. Clair, 221 N.Y. 108, it was held that the serving of partridges by a hotelkeeper to guests who paid for board and room at the rate of $2 per day, was a sale as matter of law in violation of a statute which provided that such game should "not be sold, offered for sale, or possessed for sale for food purposes." A similar decision was rendered in Commonwealth v. Phoenix Hotel Co. 157 Ky. 180, with reference to the possession of quail by an innkeeper with intent to serve to his guests in violation of a statute which prohibited the sale of such birds. It there was said at page 185, "The guest at the hotel or restaurant who is served with quail for compensation as certainly purchases it and the proprietor of the hotel or restaurant as certainly exposes it for sale and sells it as if it were purchased for compensation from a dealer who had it for sale and was carried home by the purchaser to be served on his table." It was decided in ...