Gracey v. Waldorf System, Inc.

• Decision Date: 29 January 1925
• Citation: Gracey v. Waldorf System, Inc., 251 Mass. 76, 146 N.E. 232 (Mass. 1925)
• Parties: GRACEY v. WALDORF SYSTEM, Inc.
• Court: Supreme Judicial Court of Massachusetts

251 Mass. 76

146 N.E. 232

GRACEY

v.WALDORF SYSTEM, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 29, 1925.

Appeal from Municipal Court of Boston, Appellate Division.

Action of tort by Orice M. Gracey against the Waldorf System, Inc. Verdict for plaintiff, and from order of the appellate division of municipal court dismissing the report, defendant appeals. Order dismissing report reversed. Judgment for defendant.

J. J. Mulcahy, of Boston, for appellant.

C. E. Nordstrom, of Boston, for appellee.

CARROLL, J.

In this action of contract the plaintiff seeks to recover for injuries resulting from the eating of unwholesome food, furnished to him, in response to his order, by the defendant at its restaurant.

The plaintiff testified that on March 1, 1924, he ordered chicken pie, hot rolls, and a cup of coffee; that he ate the food, then made a few business calls, and in three or four hours after having ‘eaten his lunch’ ‘he felt sick to his stomach and vomited’; that on his return to his home he called a doctor; that his stomach and intestines were washed with hot water; that he was ‘sick for a week and three or four days the following week’ had ‘pain in his bowels and was weak’; that on the morning of March 1, 1924, for his breakfast he had a cup of coffee, shredded wheat and a banana; that on the night previous he had ‘toast, tea and a scrambled egg.’

His physician testified that on the night of March 1, 1924, she ‘told some one of the plaintiff's family over the phone to wash out the plaintiff's stomach and bowels and to give him all the water he could drink until he vomited’; that the next morning she visited the plaintiff and found him sick and weak; that she diagnosed the case as ptomaine poisoning; that ptomaine poisoning means:

‘If a person has had chicken or anything of that sort that is not fresh, it becomes putrefied and if they take it to the stomach, it causes nausea and vomiting.’

To the question, ‘How many causes are there for ptomaine poisoning?’ she replied:

‘There may be so many different circumstances you could not tell; they have to have food that is not good or properly prepared in the stomach. Ptomaine poisoning would be from eating meat. No fruits cause it. Anything in the meat line.’

The defendant's district manager testified that on the day in question the defendant served approximately two thousand chicken pies, and received no complaints other than the present case. A physician called by the defendant said that the term ptomaine poisoning is too general a term to mean anything definite. ‘Decomposed milk, cream or anything of that sort could cause so-called ptomaine poisoning.’ The request of the defendant that the plaintiff could not recover was denied.

In Barringer v. Ocean Steamship Co. of Savannah, 240 Mass. 405, 134 N. E. 265, there was evidence that the plaintiff was in good...