Pappa v. F. W. Woolworth Co.

• Decision Date: 30 June 1943
• Citation: 42 Del. 358,33 A.2d 310
• Court: Delaware Superior Court
• Parties: MARY LORETTO PAPPA, an infant by her next friend, Francis J. Pappa, Sr., v. F. W. WOOLWORTH CO. MARY L. PAPPA v. F. W. WOOLWORTH CO. FRANCIS J. PAPPA, JR., an infant by his next friend, Francis J. Pappa, Sr., v. F. W. WOOLWORTH CO. JOSEPH PAPPA, an infant by his next friend, Francis J. Pappa, Sr., v. F. W. WOOLWORTH CO

33 A.2d 310

42 Del. 358

MARY LORETTO PAPPA, an infant by her next friend, Francis J. Pappa, Sr., v. F. W. WOOLWORTH CO. MARY L. PAPPA v. F. W. WOOLWORTH CO. FRANCIS J. PAPPA, JR., an infant by his next friend, Francis J. Pappa, Sr., v. F. W. WOOLWORTH CO. JOSEPH PAPPA, an infant by his next friend, Francis J. Pappa, Sr., v. F. W. WOOLWORTH CO

Superior Court of Delaware, New Castle County

June 30, 1943

Superior Court for New Castle County, Nos. 134, 135 136, 137 November Term, 1942.

Demurrers to declarations.

The demurrers to each count of the declarations are sustained.

Thomas Herlihy, Jr., for the plaintiffs.

William H. Bennethum (of Marvel and Morford) for the defendant.

LAYTON C. J., RICHARDS and TERRY, J. J., sitting.

OPINION

TERRY, J.:

The declarations allege in substance as follows: That the plaintiffs entered the public lunchroom of the defendant in the City of Wilmington on the 23rd day of January, 1942, and while there, purchased turkey club sandwiches which they consumed upon the premises, and, as a result, they became ill because the sandwiches were not made of wholesome food fit for human consumption.

The form of action is assumpsit. Each declaration consists of two counts. The theory of recovery in each count is based upon an implied warranty under a contract of sale.

The defendant demurred generally. The issue raised is narrow. Should the form of the action be in assumpsit based upon an implied warranty under a contract of sale, or should it be in case based upon negligence?

We are unable to find an allegation in the declarations setting forth an expressed warranty, or that the defendant knew that the sandwiches that it delivered to the plaintiffs were unfit for human consumption. The question immediately presented is whether the defendant is an insurer of the quality of the sandwiches that it served to the plaintiffs, or whether it is liable only for a failure on its part to exercise reasonable care in providing and serving the same.

The great weight of authority both in England and in this country is to the effect that a proprietor of a restaurant serving food to the public is not an insurer as to the quality of the food served, and his liability, if any, for serving unwholesome food is based upon his failure to exercise reasonable or ordinary care in preparing and serving the same to the public. Sheffer v. Willoughby, 163 Ill. 518, 45 N.E. 253, 34 L.R.A. 464, 54 Am. St. Rep. 483; Travis v. Louisville & Nashville R. Co., 183 Ala. 415, 62 So. 851; Bigelow v. Maine Central R. Co., 110 Me. 105, 85 A. 396, 43 L.R.A. (N. S.) 627; Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 411, 5 A. L. R. 1100; Childs Dining Hall Co. v. Swingler, 173 Md. 490, 197 A. 105; Merrill v. Hodson, 88 Conn. 314, 91 A. 533, L.R.A. 1915B, 481, Ann. Cas. 1916D, 917; Valeri v. Pullman Co. (D. C.) 218 F. 519; Nisky v. Childs Co., 103 N.J.L. 464, 135 A. 805, 50 A. L. R. 227; Kenney v. Wong Len, 81 N.H. 427, 128 A. 343; Rowe v. Louisville & N. R. Co., 29 Ga.App. 151, 113 S.E. 823; Williston on Contracts, Vol. 4, § 996A; Horn & Hardart Baking Co. v. Lieber, (3 Cir.) 25 F.2d 449.

The majority rule is predicated upon the theory that the serving of food by an innkeeper or proprietor of a restaurant is not a sale thereof; rather, the transaction falls in the category of a license or privilege of which the serving of the food is only a part. Other incidents being the furnishing of a place to eat the food, the service performed, the rent, etc.

Under the minority or what might be said to be a modern view, such transactions are treated as a sale when the food is delivered and an implied warranty exists to the effect that it is wholesome food and fit for human consumption. This view is ably treated by Chief Justice Rugg of Massachusetts in the case of Friend v. Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A. L. R. 1100, and no further citations are deemed necessary.

The plaintiffs urge that under the Sales Act, Section 5994 of the Revised Code of Delaware 1935, the defendant impliedly warranted the fitness of the food sold to them. Of course, if our view be that of the majority, the Sales Act would have no application under any circumstance, as no sale in fact took place.

We have no prior decision in this State where the direct question as here presented has been determined. However, a policy was announced by Judge...