Musso v. Picadilly Cafeterias, Inc.

• Decision Date: 01 July 1965
• Docket Number: No. 6296,6296
• Citation: 178 So.2d 421
• Parties: Raymond S. MUSSO et ux. v. PICADILLY CAFETERIAS, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 421

178 So.2d 421

Raymond S. MUSSO et ux. v. PICADILLY CAFETERIAS, INC., et al.

No. 6296.

Court of Appeal of Louisiana, First Circuit.

July 1, 1965.

Rehearing Denied Sept. 27, 1965.

Writ Refused Nov. 23, 1965.

Louis G. Baine, Jr., of Seale, Hayes, Smith & Baine, Baton Rouge, for appellants.

Jack N. Rogers, Charles W. Franklin, of Franklin & Keogh, Baton Rouge, for appellees.

Before ELLIS, LOTTINGER, LANDRY, REID and BAILES, JJ.

LANDRY, Judge.

This is a tort action by Raymond S. and Helen Ann Musso, husband and wife, to recover damages for personal injuries to Mrs. Musso's mouth and jaw and incident medical expense, occasioned by a cherry stone or pit contained in a slice of cherry pie being eaten by said plaintiff while a patron in the cafeteria owned and operated by defendant, Piccadilly Cafeterias, Inc., sometimes hereinafter referred to simply as 'Picadilly.'

Named defendants in plaintiffs' petition are (1) Piccadilly Cafeterias, Inc., and its insurer, National Surety Corporation; (2) Jebavy-Sorenson Orchard Company (packer of the cherries) and its insurer, Citizens Mutual Automobile Insurance Company, and (3) Standard Brands, Inc., (distributor of the cherries), and its insurer, Employers Liability Assurance Corporation, Ltd.

Piccadilly responded to plaintiffs' petition by denying liability and instituting a third party demand against the remaining defendants praying for indemnification and, afternatively, contribution in the event Piccadilly should be cast in judgment.

Certain declinatory exceptions filed on behalf of Jebavy-Sorenson Orchard Company and its aforesaid insurer were overruled. On the trial below, said defendants stipulated their assumption of any liability decreed on the part of Standard Brands, Inc., and its insurer, Employers. Before submission of the case to the trial court, plaintiffs dismissed their actions against all defendants excepting Piccadilly and its aforenamed insurer. After trial, judgment was rendered in favor of plaintiff, Raymond S. Musso in the sum of $420.00 and in favor of Mrs. Musso in the amount of $4,000.00. Judgment was also rendered dismissing and rejecting the third party demand of Piccadilly and National Surety Corporation. From this adverse decision both said defendants have appealed. Appellants aver the trial court erred in awarding damages in favor of plaintiffs and alternatively maintains the court below wrongfully dismissed and rejected their third party complaint.

The record presents little dispute, if any, concerning the circumstances attending the incident upon which this lawsuit is predicated. It is conceded that on February 18, 1963, Mrs. Musso, while dining with her husband at one of defendant's cafeterias, had for dessert a piece of cherry pie. While eating the pie, Mrs. Musso encountered an unobserved cherry stone or pit which broke a prosthetic device or denture she had worn for approximately ten years. As a result, she sustained serious and painful injuries to the joint of her right jaw and its musculature.

In both brief and oral argument before this Court, able counsel for appellants maintains plaintiffs have couched their demands solely in tort and must therefore rely entirely upon their allegations of negligence on the part of defendant's employees with respect to the manner in which the reputedly unwholesome item of food was prepared. In this connection illustrious counsel for appellants argues appellees may not prevail on the principle of breach of the implied contractual warranty of wholesomeness applicable to the vendor of foods to a consumer because of appellees asserted failure to allege breach of such implied warranty in their petition. On this score, counsel for appellants contends the trial court erred in awarding damages to plaintiffs on the theory of breach of implied warranty notwithstanding his conclusion the presence of a cherry pit or stone in a cherry pie does not constitute a 'foreign substance.'

Our consideration of the oral reasons for judgment dictated into the record by our esteemed colleague below, indicates that, whereas he did not consider the presence of a cherry pit a foreign matter in a cherry pie, nevertheless he felt it was defendant's duty to provide a product which could be ingested by a human without the possibility of ill effect therefrom. His reasons further indicate he considered defendant's employees negligent in that no special effort was made to detect and remove pits or stones from the cherries used in baking pies but rather extracted only such pits and stones as were revealed in the process of baking such pies.

The record reflects the court below made the following finding:

'At the request of counsel for Piccadilly, the Court does not feel as alleged in plaintiff's petition, Paragraph 7, Subsection D, that the cherry pits were a foreign matter; however, the Court does not feel that this is relevant to the decision.'

In dismissing appellant's third party demand, our esteemed brother below concluded the testimony of defendant's baker showed he only found cherry pits 'now and then,' and 'never more than two or three in a can.' He further concluded Piccadilly's employees were aware that the cans of pitted cherries purchased from the aforesaid distributor sometimes contained cherry pits and further that the contents of the can were not unfit for human consumption.

From the foregoing it is apparent the trial court was of the opinion a restaurateur who sells food for human consumption is the absolute insurer of its wholesomeness and is liable to the consumer for any injury or damage resulting from the partaking thereof, notwithstanding its fitness for human consumption and the absence therefrom of foreign matter.

Our jurisprudence has long been established to the effect that where food is sold at a public eating place to be consumed on the premises, the keeper of such a place is at fault if such articles prove to be unwholesome or deleterious because, in all cases, it is readily possible for him to know whether the quality of the ingredients or the articles of food into which they are transformed, is such as to render the product fresh and fit for human consumption. Doyle v. Fuerst & Kraemer, 129 La. 838, 56 So. 906, 40 L.R.A., N.S., 480.

In McAvin v. Morrison Cafeteria Company of Louisiana, 85 So.2d 63, the Orleans Court of Appeal (Fourth Circuit) enunciated the duty of the vendor of foodstuffs as follows:

'* * * the seller of foodstuffs is bound to warrant their wholesomeness and * * * every one should know of the qualities of the things he manufactures and sells and * * * the lack of such knowledge is imputed to him as a fault rendering him liable to the purchaser for any vices or defects of the things.'

More recently, in Gilbert v. John Gendusa Bakery, Inc., La.App., 144 So.2d 760, our brothers of the Fourth Circuit, in considering an instance of acute gastroenteritis induced by a child partaking of a doughnut containing bugs or other foreign matter, stated the duty of care owed by the vendor of foodstuffs to the consumer in the following language:

'In cases of this type, the manufacturer and the vendor of foodstuff designed for human consumption, both, are virtually insurers that such merchandise is pure, wholesome and free from foreign materials and deleterious substances.'

Nevertheless, the restaurateur is not the absolute insurer of his customers. In order to recover from such a vendor, plaintiff must show the food in question was unwholesome, deleterious or contained a vice or defect. We have been cited no authority from our own jurisprudence holding that a vendor of food to a customer for consumption on the premises is the absolute insurer of the purchaser and is liable under any and all circumstances for illness or injury resulting from the buyer partaking thereof.

After careful consideration of plaintiff's petition, we find no merit in defendant's contention it fails to contain allegations charging appellant with breach of the implied warranty of wholesomeness attending the sale. We note Article 8 of appellee's petition which alleges defendant breached the legal duty owed plaintiff as a customer by leaving seeds in a cherry pie in violation of appellee's right to assume the pie in question to be wholesome and safe to eat. We construe the foregoing, coupled with the accompanying contention of applicability of the doctrine of res ipsa loquitur, to constitute invocation of the rule of implied warranty of wholesomeness applicable in cases of this character.

As we view the present case, the specific point to be resolved is whether a cherry pit or stone is a deleterious or harmful foreign matter or substance in a cherry pie.

The precise question is apparently res nova quoad our own jurisprudence.

We note, however, the analogous Federal case of Arnaud's Restaurant, Inc. et al. v. Cotter, 5 Cir., 212 F.2d 883 (certiorari denied, 384 U.S. 915, 75 S.Ct. 295, 99 L.Ed. 717), which considered the question of what constitutes a foreign substance. We have carefully reviewed all cases cited by able counsel for appellees and note that each concerns an instance involving illness or injury caused by the partaking of spoiled food or edibles or beverages containing obviously foreign substances such as bacteria, insects, glass particles, metal and other completely alien matters. Such cases, however, are not necessarily controlling of the case at bar.

In the Arnaud's Restaurant case, supra, a piece of crab shell in an order of pompano en papillote was held to be a foreign substance because crab meat is not an ingredient for this particular dish. In so concluding the Federal Court thusly distinguished the Arnaud case, supra, from the well established line of jurisprudence holding that substances natural to the food served and inadvertently left in a dish served a customer, do not constitute foreign matter or harmful deleterious substances for which the vendor may be held liable to the...