Pantaze v. West

• Decision Date: 14 January 1913
• Citation: 61 So. 42,7 Ala.App. 599
• Parties: PANTAZE v. WEST.
• Court: Alabama Court of Appeals

61 So. 42

7 Ala.App. 599

PANTAZE v. WEST.

Court of Appeals of Alabama

January 14, 1913

Rehearing Denied Feb. 4, 1913

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by Eugene N. West against Charles D. Pantaze. From a judgment for plaintiff, defendant appeals. Affirmed.

The facts sufficiently appear in the opinion. The following charges were given at the instance of the plaintiff "(1) If any member of the jury has business or other relations with the defendant, then that juror has no right to be biased by such relations. (2) If the jury are reasonably satisfied from the evidence that any witness willfully swore falsely to any material matter, the jury is authorized to disregard the testimony of such witness altogether. (3) It is the duty of the keeper of a restaurant, offering to serve the public with food for pay, to exercise due care to see that the food is fit and proper for human food, and for the proximately resulting injury, if any, to the customer of a failure to do so, he is liable to a customer paying him for such food and service." There was jury trial and verdict for plaintiff in the sum of $500.

A. Latady, of Birmingham, for appellant.

Harsh Beddow & Fitts, of Birmingham, for appellee.

PELHAM, J.

The judgment for the plaintiff from which this appeal is prosecuted was rendered in an action of tort brought to recover damages for injuries alleged to have been caused by the defendant's negligence in selling to the plaintiff spoiled or tainted food, or food unfit for human consumption.

The defendant was the keeper of a public restaurant or café in the city of Birmingham, and the plaintiff partook of a midday meal in the establishment, and a few hours thereafter became violently sick; and attributing the cause to the negligent service to him in this public eating place of improper and unfit food, brought suit for damages against the defendant as the keeper or proprietor of the place.

Appellant insists that the allegation in the plaintiff's complaint that the defendant was negligent in furnishing or serving the food is the essential averment in the cause of action, and that there was no proof of the defendant's negligence and no evidence adduced upon the trial from which it could reasonably be inferred. The evidence set out in the bill of exceptions tending to establish the averment of negligence shows that the plaintiff dined at the defendant's café between noon and 1 o'clock in the daytime, and that on this occasion he ate and drank what was served to him; that the articles of food and drink thus furnished were brains and eggs scrambled together, cold boiled ham, bread and butter and a glass of tea; that prior to this time the plaintiff had not partaken of food of any kind or nature for some six hours, and he had been perfectly well, and was a strong, healthy, robust, and entirely sober man; that he did not eat anything after dining in the defendant's café before he became sick between 2 and 3 o'clock of the afternoon of the same day, when he was taken violently ill and had symptoms of suffering from a severe case of ptomaine poisoning, becoming unconscious for a time, and continuing to suffer from the effects of this illness for months afterward.

The plaintiff's grave illness is not questioned, nor is it seriously contended but that his sickness was reasonably attributable, under the testimony, to the food eaten at the meal provided to the plaintiff as a patron at the defendant's restaurant or café on this occasion.

The physician that attended the plaintiff diagnosed the case as one of ptomaine poisoning resulting "most likely" from eating "tainted" brains. This diagnosis was made by the physician from a physical examination made at the time and from a history of the case received from the patient. It was also shown by the evidence that brains of the kind served were of such a nature or composition as to easily spoil or taint and become unwholesome and unfit for food, and cause ptomaine poisoning when taken into the system under such conditions, in consequence of the bacteria developed in decomposition producing a poison. It was further shown that the bacteria poison produced in tainted brains may often be destroyed or rendered harmless by sufficient cooking; that the taint in brains developed by decomposition of the tissues has a peculiar odor, easily detected before cooking; and that any one can readily distinguish it when the decomposition has set in to that extent to render the article dangerous or harmful to be taken into the system as food.

The evidence introduced by the defendant was in effect that the 10-pound package of brains purchased by him from the wholesale dealer was carefully inspected; that the brains were fresh and in first-class condition, with no odor or tainted smell about them, and they were properly and carefully prepared and served; that the package was purchased and delivered early in the morning of the same day that part of them were prepared and served to the plaintiff. There was also other evidence having a tendency to disprove negligence or the want of due care upon the part of the defendant, and to show that neither he nor his servants or employés, for whose acts he was responsible, were negligent in the premises.

The fact was established without controversy that the defendant was the keeper of a public eating place, engaged in the business of serving food to his customers, the public, and, being thus engaged and holding himself out as a public purveyor, he was bound to use due care to see that the foodstuffs served at his place of business to his customers were fit for human consumption and could be partaken of without causing sickness or endangering human life or health because of their unwholesome and deleterious condition; and, for any negligence in this particular in failing to observe this duty which proximately resulted in injury to one of the patrons of the place, the defendant would be responsible. Craft v. Parker Webb Co., 96 Mich. 245, 55 N.W. 812, 21 L.R.A. 139; Bishop v. Weber, 139 Mass. 411, 1 N.E. 154, 52 Am.Rep. 715; Huset v. Case Mch. Co., 120 F. 865, 57 C.C.A. 237, 61 L.R.A. 303; Thomas v. Winchester, 6 N.Y. (2 Selden) 397, 57 Am.Dec. 455; Watson v. Augusta Brewing 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; Schubert v. Clark Co., 49 Minn. 331, 51 N.W. 1103, 15 L.R.A. 818, 32 Am.St.Rep. 559; Stringfellow v. Grunewald, 109 La. 187, 33 So. 190.

The late case of Doyle v. Fuerst & Kraemer, reported in 129 La 838, 56 So. 906, 40 L.R.A. (N.S.) 480, is a case in point. The plaintiff in that case alleged that he was ptomaine poisoned from having eaten cakes and chocolate with whipped cream at defendant's confectionery establishment, where such refreshments were served to the public, to be consumed on the premises. No direct or specific acts of negligence were proven, and the defendant produced as witnesses in its behalf its purchasing agent, head baker, and the traders or merchants from whom it purchased the articles used in its business, to show the purchase...