Lohse v. Coffey.

• Decision Date: 21 May 1943
• Docket Number: No. 60.,60.
• Citation: 32 A.2d 258
• Parties: LOHSE et al. v. COFFEY.
• Court: D.C. Court of Appeals

32 A.2d 258

LOHSE et al.

v.COFFEY.

No. 60.

Municipal Court of Appeals for the District of Columbia.

May 21, 1943.

Appeal from the Municipal Court of the District of Columbia, Civil Division.

Personal injury action by Edmund P. Coffey against Edward M. Lohse and another, a partnership trading as Lohse Buffet. Judgment for plaintiff, and defendants appeal.

Affirmed.

Edwin A. Swingle, of Washington, D.C. (Ernest A. Swingle and Allan C. Swingle, both of Washington, D. C., on the brief), for appellants.

Neil Burkinshaw, of Washington, D. C. (Daniel B. Maher and Dennis Collins, both of Washington, D. C., on the brief), for appellee.

Before RICHARDSON, Chief Judge, CAYTON, Associate Judge, and SCOTT, Judge of the Municipal Court for the District of Columbia, sitting by designation.

CAYTON, Associate Judge.

This is an appeal from a judgment entered on the verdict of a jury in an action for personal injuries resulting from alleged food poisoning.

We are called upon to review only one ruling, namely, the refusal of the trial judge to direct a verdict for defendant upon the whole evidence. The trial was reported stenographically and we have examined the transcript with care, not of course to weigh the evidence factually as a jury would do, or to assay the testimony for preponderance, but to determine its legal sufficiency and whether it was substantial enough to be submitted to a jury.

In deciding this question we are applying the well established rule that on a motion for a peremptory instruction ‘the court assumes that the evidence for the opposing party proves all that it reasonably may be found sufficient to establish, and that from such facts there should be drawn in favor of the latter all the inferences that fairly are deducible from them.’ Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 233, 74 L.Ed. 720.

Likewise we have kept carefully in mind the recent decision of the United States Court of Appeals for this District in Christie v. Callahan, 75 U.S.App.D.C. 133, 124 F.2d 825, 827. There Mr. Justice Rutledge (now a member of the Supreme Court) describing the manner in which evidence is to be tested for purposes of this kind, said:

‘The danger to be guarded against is a too obvious and gross miscarriage of justice, a departure too far from established lines of liability. Facts are primarily within the jury's function. Hence it must be given wide latitude, or trial by jury becomes trial by court. But the jury is not absolute in the realm of fact. Like judges, jurors have weaknesses of emotion and judgment. Unlike judges, they seldom have a background of decision experience against which to check them. Our tradition supplies this through judicial controls. Exclusion of evidence is one. When one side's case is thin, determining its ‘legal sufficiency’ is another. This really means weighing it factually, not for conviction, but for doubt as to the outcome. The verdict sustained therefore represents the jurors' conviction that it is right, and the judge's that it may be right.'

This, in essence, was the case: Plaintiff, an official of the Federal Bureau of Investigation, entered the ‘buffer-luncheon’ of defendants on a warm day in May, 1942 at about 12:30 p.m. and ordered and consumed a frankfurter-on-roll sandwich, a slice of Boston cream pie, ¹ and a glass of tea. About 4 p.m. that day he became violently ill. He was given emergency treatment by two nurses in his office building and by his physician. He was removed in an ambulance to a hospital where he remained for four days and was ill at home for a week more.

At about the same time a Mr. James L. Monarch, an attorney in the Department of Justice, but previously unacquainted with plaintiff, was in the restaurant of defendants, and had the same food (but drank milk instead of iced tea). He too became ill at about the same time that plaintiff was stricken, suffered substantially the same symptoms and remained ill for one week.

Dr. James E. Nolan who treated plaintiff testified that he diagnosed the case as one of acute gastro-intestinal disturbance and that although he did not then commit himself as to the cause, he felt that possibly the food disturbance should be considered. Responding to a hypothetical question he testified that if the Boston cream pie was contaminated or unwholesome it was a competent producing cause of plaintiff's illness. He further testified that the cream would make a good culture medium for bacteria and that warm temperature would naturally increase the growth of organisms present.

Other witnesses, fellow employees of plaintiff, testified concerning his physical manifestations during the onset of the illness.

Defendants' manager, Mr. Arthur Davis, testified that on the day in question he received seventy-five or more pounds of frankfurters from a well-known manufacturer and immediately placed them in a refrigerator which was kept at a temperature of 38-42 degrees; that early that day he purchased from a local pie company one Boston cream pie; that it was cut into seven slices and not placed under refrigeration but on a pie shelf back of the counter; that the restaurant itself was air conditioned to a temperature of 70-75 degrees; that he noticed nothing wrong with the frankfurters on that day and that there was nothing wrong with the appearance, odor or taste of the Boston cream pie; that he personally ate a piece of the pie with no ill effects and sold the remaining four slices to other customers and had received no complaint from any of them.

Dr. Lester Neuman testified in behalf of defendants that unless careful laboratory studies are made in cases of food poisoning it is not definitely possible to establish the cause; that it is a fallacy to blame the last food consumed and that any food taken within 36 to 48 hours of the time of the illness can be the causative factor; that in any case of food poisoning there is a period of incubation which can be anywhere from two to forty-eight hours. On being acquainted with the symptoms exhibited by plaintiff and the witness Monarch he could not give an opinion as to what particular food they ate in the preceding two days caused the trouble.

The standard of a restaurant's liability has been recently-and quite clearly-fixed by the United States...