Landfield v. Albiani Lunch Co.

• Decision Date: 02 October 1929
• Citation: Landfield v. Albiani Lunch Co., 268 Mass. 528, 168 N.E. 160 (Mass. 1929)
• Parties: LANDFIELD v. ALBIANI LUNCH CO.
• Court: Supreme Judicial Court of Massachusetts

268 Mass. 528

168 N.E. 160

LANDFIELD

v.ALBIANI LUNCH CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 2, 1929.

Appeal from Municipal Court of Boston, Appellate Division.

Action by Abraham Landfield against the Albiani Lunch Company. From an order of the appellate division of the municipal court, dismissing report from municipal court after finding for defendant, plaintiff appeals. Affirmed.

Testimony by defendant's manager and treasurer, in answer to the following question by defendant's counsel, was admitted over plaintiff's objections:

‘You served beans on the 15th and 16th of August, 1928; now I am going to ask you if you had any complaints from any one other than the plaintiff, who claimed to have eaten beans on those days at the store at 103 Summer street, Boston, and complained to you afterwards that they were injuriously affected?’

J. Schneider, of Boston, for appellant.

J. F. Cavanagh and W. G. Wehrle, both of Boston, for appellee.

WAIT, J.

The plaintiff sues in contract for breach of the implied warranty of a keeper of a restaurant that the food served therein is wholesome. Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N. E. 407, 5 A. L. R. 1100. He testified that he noticed a peculiar taste in beans served him on August 16, 1928, and that within a few hours after eating them be became ill. There was contradictory evidence on the issue whether the illness arose from eating unwholesome food. Evidence that no complaints were made by any other costomer with regard to beans served in the restaurant on either August 15 or 16, 1928, offered by the defendant, was admitted against the plaintiff's exception. After a finding for the defendant, the case was reported to the appellate division of the municipal court of the city of Boston, which dismissed the report. The only question presented on this appeal is the propriety of the ruling on evidence.

The fact that others than the plaintiff ate of the food complained of without ill effects is competent evidence that it was not unwholesome. See Gracey v. Waldorf System, Inc., 251 Mass. 76, 146 N. E. 232. There is a reasonable inference based on common experience that one who ate and suffered as he believed in consequence would make complaint. There is a further reasonable inference, based on logic, that if no one complained no one suffered. Obviously, the latter conclusion is not convincing that the food was wholesome, unless one is satisfied that both plaintiff and others...