Greenwood Cafe v. Lovinggood

• Decision Date: 18 May 1916
• Docket Number: 6 Div. 300
• Citation: 72 So. 354,197 Ala. 34
• Parties: GREENWOOD CAFÉ v. LOVINGGOOD.
• Court: Alabama Supreme Court

72 So. 354

197 Ala. 34

GREENWOOD CAFÉ v. LOVINGGOOD.

6 Div. 300

Supreme Court of Alabama

May 18, 1916

Rehearing Denied June 30, 1916

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Action by J.T. Lovinggood against the Greenwood Café. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911 Affirmed.

The complaint charges that on or about September 11, 1914 defendants were engaged, in the city of Birmingham, Ala., in running a café and serving meals to the public for a reward and plaintiff was a customer of defendant on said date, and the agent or servants of defendant while acting in the line and scope of their duty negligently served to plaintiff tainted and unwholesome food, for which plaintiff paid defendant's agent 25 cents; that said food was eaten by plaintiff, and it made him very sick, etc. Plaintiff avers that the negligence of defendant's servants in serving him with tainted and unwholesome food to eat was the proximate cause of plaintiff's sickness. The court at the request of defendant gave charge 8, as follows:

"If you believe the evidence in this case, you cannot assess any punitive damages in favor of plaintiff and against these defendants." But added the following orally "that is, damages for the purpose of furnishing, but not compensating him for his alleged sickness."

Erle Pettus, of Birmingham, for appellant.

J.W. Davidson, of Birmingham, for appellee.

THOMAS J.

The trial was had on a complaint charging that defendants were engaged in running a café and serving meals to the public for a reward; that plaintiff was a customer of the defendants; "that the agents and servants of the defendants, while acting in the line and scope of their duty to the defendants, negligently served to plaintiff tainted and unwholesome food, for which plaintiff paid defendant's agents 25 cents;" and "that said food was eaten by plaintiff, and it made him very sick, and caused plaintiff to suffer great pain, and to incur expense for medical treatment." The complaint further avers "that the negligence of the defendant's servants in serving him with tainted and unwholesome food to eat was the proximate cause of plaintiff's said sickness."

The complaint sufficiently avers the duty owed by defendants, in the conduct of their café, not to serve to plaintiff as a customer tainted and unwholesome food; that the food so served to plaintiff was tainted and unwholesome; and that plaintiff's partaking thereof was the proximate cause of the sickness and damages complained of and sued for.

The keeper of a hotel, dining car, café, or other public eating place, engaged in the business of serving food to customers, is bound to use due care to see that the food so served to the public, his customers, at his place of business, is fit for human consumption and may be eaten without its causing sickness or endangering life by reason of its condition. For negligence in failing to observe this duty to the public or his patrons, a defendant would be liable. Travis v. L. & N.R.R. Co., 183 Ala. 415, 62 So. 851; Pantaze v. West, 7 Ala.App. 599, 61 So. 42; Sheffer v. Willoughby, 163 Ill. 518, 45N. E. 253, 34 L.R.A. 464, 54 Am.St.Rep. 483; Bishop v. Weber, 139 Mass. 411, 1 N.E. 154, 52 Am.Rep. 715; Craft v. Parker-Webb Co., 96 Mich. 245, 55 N.W. 812, 21 L.R.A. 139; Huset v. Case Mch. Co., 120 F. 865, 57 C.C.A. 237, 61 L.R.A. 303; Watson v. Augusta Brew. Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A. (N. S.) 1178, 110 Am.St.Rep. 157; Tomlinson v. Armour & Co., 75 N.J.Law, 748, 70 A. 314, 19 L.R.A. (N.S.) 923; Stringfellow v. Grunewald, 109 La. 187, 33 So. 190; Doyle v. Fuerst & Kraemer, 129 La. 838, 56 So. 906, 40 L.R.A. (N.S.) 480, Ann.Cas.1913B, 1110.

The demurrer to the complaint was properly overruled.

The case was tried on defendants' plea of the general issue, with leave to give in evidence any special defense as if well pleaded.

No error was committed by the court in the ruling on the admission of the evidence of the witness West. The witness had stated that he and plaintiff had ordered roast chicken which was served to them by the defendants and its condition and its effect on witness was some evidence to go to the jury in corroboration of plaintiff's testimony on the issue being tried. This was not the statement of a conclusion condemned in Weller & Co. v. Camp, 169 Ala....