Sofman v. Denham Food Service, Inc.

• Decision Date: 07 May 1962
• Docket Number: No. A--43,A--43
• Citation: 181 A.2d 168,37 N.J. 304
• Parties: , 1 UCC Rep.Serv. 93 Howard SOFMAN, Plaintiff-Respondent, v. DENHAM FOOD SERVICE, INC., Defendant-Appellant, and Manhattan Provision Co., Inc., Defendant.
• Court: New Jersey Supreme Court

Page 304

37 N.J. 304

181 A.2d 168, 1 UCC Rep.Serv. 93

Howard SOFMAN, Plaintiff-Respondent, v. DENHAM FOOD SERVICE, INC., Defendant-Appellant and Manhattan Provision Co., Inc., Defendant.

No. A--43.

Supreme Court of New Jersey.

Argued Feb. 20, 1962.

Decided May 7, 1962.

Mortimer, Neuman, Newark, for appellant (Reid & Flaherty, East Orange, attorneys).

Howard A. Goldberger, Newark, for respondent (Goldberger & Ostrow, Newark, attorneys).

PER CURIAM.

Plaintiff, a patron of a cafeteria concession, sued to recover for injuries caused by a deleterious substance in the food he ate in appellant's cafeteria. The complaint was in two counts. The first, in negligence, was dismissed; the second, in warranty, was upheld. After a trial without a jury in the Union County District Court, judgment was entered against Denham Food Service, defendant-appellant (hereinafter 'Denham'), in the sum of $135 for special damages and $250 for pain and suffering. Manhattan Provision Co., the other defendant, was not served with process. Prior to argument in the Appellate Division on Denham's appeal, we certified the cause on our own motion.

Denham operates an employee cafeteria concession in the Saks Fifth Avenue store in Springfield, New Jersey. Plaintiff was employed by Saks and on September 23, 1958, during his lunch hour, entered Denham's cafeteria, ordered, received and paid for a frankfurter on a roll and a beverage. After paying for his food the plaintiff was free to lunch at a table provided for that purpose or to take the food and drink and go wherever he pleased inside or outside the premises. He chose to take the food and drink to a table where he began to eat. Plaintiff alleges that when he bit into the frankfurter he struck a foreign substance, a small piece of bone or gristle which broke his tooth and caused bleeding in his mouth.

The frankfurter was an ordinary frankfurter encased in a skin. Denham purchased it in this form from Manhattan and did nothing to the frankfurter, other than grilling it in the presence of the plaintiff, before placing it in the roll and handing it over to him.

The basic question presented is whether a cafeteria operator engaged in preparing, cooking, and selling food is liable to a patron upon an implied warranty that the food is fit for human consumption.

Denham argues that the rule regarding a restaurateur's liability, as set forth in Nisky v. Childs Co., 103 N.J.L. 464, 50 A.L.R. 227 (E. & A. 1927), is dispositive here. There, a plaintiff sought damages for injuries caused by eating unwholesome fried oysters prepared and served in the defendant restaurant. Recovery on a theory of implied warranty of fitness for human consumption was denied.

The court in Nisky drew an analogy between an old English inn and a modern day restaurant. According to it, the serving of food in an inn constitutes a service and not a sale of goods. In the absence of a sale the court refused to find any implied warranty and held that a restaurateur could be liable only for negligence. In so holding it relied upon a statement attributed to counsel in Parker v. Flint, 12 Mod. 254, 88 Eng.Rep. 1303 (1699), that 'an innkeeper * * * does not sell but utters his provisions.' Also cited was the following statement by Professor Beale in his treatise, Innkeepers and Hotels, § 169, p. 117 (1906):

'As an innkeeper does not lease his room, he does not sell the food he supplies to his guests. It is his duty to supply such food as the guest needs, and the corresponding right of the guest to consume the food he needs and to take no more. Having finished his meal he has no right to take food from the table, even the uneaten portion of the food supplied him. Nor can he claim a certain portion of the food as his own to be handed over to another in case he chooses not to consume it himself.'

It further held that our Sale of Goods Act was merely declaratory of the common law and therefore did not apply to the serving of food in a public eating place. As our Legislature had not declared such transactions to be sales, the court felt that it was not privileged to incorporate service of meals into the act by judicial ruling. Moreover, it held that any modification of the common law would have to result from legislative action. Accordingly, it refused to follow Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100 (Sup.Jud.Ct.1918), and Temple v. Keeler, 238 N.Y. 344, 144 N.E. 635, 35 A.L.R. 920 (Ct.App.1924), which held restaurant keepers liable for breach of implied warranty without first holding that the service of food was a 'sale' of goods in the narrow sense.

Denham also contends that any change in the Nisky rule should be made by the Legislature and not by 'judicial legislation' and finally that, if there is a change in the rule, the change should be given prospective effect only.

We find it unnecessary to consider the validity of Nisky. There the service of food in the conventional restaurant was identified with the service of food in the ancient inn. That identification has been much criticized. The question here is whether that holding should be extended into another factual situation in which the points of similarity, thought in Nisky to require identification with the inn, do not appear. Here we have a cafeteria in which the element of service is minimal.

We see no resemblance between the operation of a cafeteria and the operation of the ancient inn. If it be assumed the inn did not 'sell' food but merely satisfied whatever might be the needs of its wayfarer guest, surely the same cannot be said of a cafeteria, at which the customer buys and pays for the food he wants and may carry it to wherever he wishes, on or off the premises. We can see no justification for applying the innkeeper rule to a factual pattern in which the considerations underlying the innkeeper rule cannot be found.

Nisky may indeed be unsound on its own facts but we believe that whether it is, should be reserved for a case in which the issue must be met. The question may not arise, since the Legislature has overturned Nisky, as well as the underlying rule which Nisky applied to a restaurant, by adopting the Uniform Commercial Code, effective January 1, 1963. N.J.S.A. 12A:2--314(1). All that need now be decided is that the rule applicable to an innkeeper should not be applied to a cafeteria where it would be plainly a myth to say that food is not 'sold,' and that a refusal to go beyond the precise holding of Nisky is well supported by the Legislature's disapproval of the underlying concept which Nisky invoked.

Accordingly, the judgment of the trial court is affirmed.

Page 315

For affirmance: Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR and SCHETTINO--5.

For reversal: Justices HALL and HANEMAN--2.

SCHETTINO, J. (concurring).

Although I concur in the result reached by the majority, in my view, the question presented by this case is the broad one, i.e., whether a defendant engaged in the business of proparing and offering food designed primarily to be consumed on the premises is liable to a patron upon an implied warranty that the food was fit for human consumption. Because this approach would require the overruling of Nisky, I set forth my views in full.

In my opinion the scope of the Nisky decision does cover the instant factual situation. Research disclosed only two jurisdictions which have had occasion to apply the doctrine of implied warranty to food sold in a cafeteria. Neither discussed any distinction for this purpose between a cafeteria and a restaurant. McAvin v. Morrison Cafeteria Co. of La., 85 So.2d 63 (La.Ct. of App.1956); Franke's, Inc. v. Wallace, 219 Ark. 467, 242 S.W.2d 968 (Sup.Ct.1951) . When a person orders food in a restaurant today, he selects a listed portion for which the restaurateur has set a fixed price. Reality would be ignored if it is said that a sale is not effected, at least as to that food which the patron consumes. Thus, while a distinction can be made between a cafeteria and a traditional restaurant, for present purposes the difference is so negligible that we should face the problem four square.

There are two general lines of authority on the issue of a restaurateur's liability in implied warranty. Of those jurisdictions, which have had the opportunity to pass upon the question, the numerical majority supports the view, referred to as the 'Massachusetts-New York rule,' that one serving food for immediate consumption on the premises impliedly warrants that the food served is wholesome and fit for human consumption and is liable for a breach of the implied warranty. The numerical minority of jurisdictions adheres to the view, designated as the 'Connecticut-New Jersey rule,' which is exemplified by Nisky.

In this State the Nisky view was reaffirmed in Corin v. S.S. Kresge Co., 10 N.J.Misc. 489, 159 A. 799 (Sup.Ct.1932), affirmed per curiam 110 N.J.L. 378, 166 A. 291 (E. & A.1933). Plaintiff there was injured by a piece of broken glass in coleslaw prepared and served in a restaurant. Recovery was allowed in negligence but not on implied warranty. In Rickner v. Ritz Restaurant Co., 13 N.J.Misc. 818, 181 A. 398 (Sup.Ct.1935), plaintiff was injured by glass in a sandwich prepared and served in defendant's restaurant. The court said, 'The liability of restaurateurs, for foreign and deleterious substances in food served to patrons, is well settled in our state. It is based, not on the theory of a warranty, but on the theory of negligence.'

Other jurisdictions have reached a similar result where the restaurant customer was served: an unwholesome turkey sandwich, Pappa v. F. W. Woolworth Co., 3 Terry 358, 42 Del. 358, 33 A.2d 310 (Super.Ct.1943); a piece of tin in sandwich bread, Child's Dining Hall Co. v. Swingler, 173 Md. 490, 197 A. 105 (Ct.App.1938); and a mouse in roast chicken dressing, Kenney v. Wong Len, 81 N.H. 427, 128 A. 343 (Sup.Ct.1925). For other...