Stanfield v. F.W. Woolworth Co.

• Decision Date: 25 January 1936
• Docket Number: 32534.
• Citation: 143 Kan. 117,53 P.2d 878
• Parties: STANFIELD v. F. W. WOOLWORTH CO.
• Court: Kansas Supreme Court

53 P.2d 878

143 Kan. 117

STANFIELD v. F. W. WOOLWORTH CO.

No. 32534.

Supreme Court of Kansas

January 25, 1936

Syllabus by the Court.

Where clerk went to store lunch counter and ordered and paid for sandwich, which was delivered to her, transaction was a "sale" as respects implied warranty of wholesomeness.

One who, for compensation, sells or provides food for immediate consumption to another impliedly warrants food to be wholesome, whether transaction is in all of its aspects properly classified as a sale.

Clerk who paid for and ate sandwich at store lunch counter and suffered food poisoning, could maintain action on implied warranty of wholesomeness without showing proprietor's negligence in selection or preparation of food.

In action for food poisoning, verdict for exact amount of damages claimed in petition did not necessarily indicate jury's bias or prejudice.

1. Plaintiff went into defendant's restaurant and ordered and paid for a ham salad sandwich, which defendant delivered to her. Held, the transaction was a sale.

2. One who, for compensation, sells or provides food for immediate consumption to another impliedly warrants the food to be wholesome. This is true whether the transaction is in all of its aspects properly classified as a sale.

3. One to whom, for a compensation, food is sold or provided for immediate consumption, and who suffers food poisoning as a result of consuming the food, may maintain an action upon the implied warranty of its wholesomeness without alleging or proving negligence in the selection or preparation of the food by the one who sold or provided it.

4. In an action for damages, the fact that the verdict is for the exact amount of the damages claimed in plaintiff's petition does not necessarily indicate bias or prejudice of the jury.

Appeal from District Court, Sedgwick County, Division No. 2; Robert L. NeSmith, Judge.

Action by Myrtle Stanfield, a minor, by Anna Stanfield, her mother and next friend, against the F. W. Woolworth Company. From a judgment for plaintiff, defendant appeals.

Howard T. Fleeson, Fred W. Aley, Carl G. Tebbe, and Wayne Coulson all of Wichita, for appellant.

Clarence Sowers, of Wichita, for appellee.

HARVEY Justice.

This is an action for damages for personal injuries resulting from food poisoning. Plaintiff recovered judgment for $2,900. Defendant has appealed.

The pertinent facts may be stated as follows: Plaintiff, a girl twenty years of age, was in the employ of defendant as a saleswoman in its retail store at Wichita. Among other departments of business conducted by defendant at its store was a restaurant or lunch counter. About 4:30 o'clock the afternoon of July 3, 1934, plaintiff went to defendant's lunch counter and ordered and paid for a ham salad sandwich and a glass of Coca-Cola, which were delivered to her. She ate the sandwich and drank the Coca-Cola and in about half an hour became violently ill. She was taken to a hospital, where she was found to be suffering from food poisoning. There is evidence justifying the jury in concluding the food poisoning was the result of eating the sandwich. In her petition plaintiff alleged defendant's servants and employees manufactured the sandwich by preparing and assembling the ham, relish, mayonnaise, and other ingredients which went into it; that defendant sold the ham salad sandwich to plaintiff upon the implied representation and guaranty that the same was wholesome and fit for immediate consumption that in fact it was unfit and unwholesome for immediate human consumption, the purpose for which it was sold to plaintiff.

In her evidence plaintiff made no effort to show specific acts of negligence on the part of defendant, its agents, servants, or employees in the selection of materials or in the manner it prepared and assembled them in the making of the ham salad sandwich.

Appellant's principal point in this court is that it is not liable to plaintiff on an implied warranty that the sandwich was suitable for human consumption; that it could be liable only upon the grounds of negligence in the selection of materials used and in the manner in which they were prepared and assembled, and since no such negligence was either alleged or proved, its demurrer to the evidence should have been sustained. There is authority for this view. F. W Woolworth Co. v. Wilson (C.C.A.) 74 F. (2d) 439, 98 A.L.R. 681; Kenney v. Wong Len, 81 N.H. 427, 128 A. 343; Lynch v. Hotel Bond Co., 117 Conn. 128, 167 A. 99; McCarley v. Wood Drugs, Inc., 228 Ala. 226, 153 So. 446; Rowe v. Louisville & N. R. Co., 29 Ga.App. 151, 113 S.E. 823; Bigelow v. Maine Central Railroad Company, 110 Me. 105, 85 A. 396, 43 L.R.A. (N. S.) 627; Roseberry v. Wachter 3 W.W. Harr. (33 Del.) 253, 138 A. 273; Nisky v. Childs Co., 103 N.J.Law, 464, 135 A. 805, 806, 50 A.L.R. 227.

The reasoning of these authorities may be best set forth in a quotation from Nisky v. Childs Co., supra, as follows:

"At common law, in the absence of express warranty or representation from which a warranty could be inferred, the mere sale of goods without more did not warrant the quality of the article sold (Beninger v. Corwin, 24 N.J.Law, 257), and such is the universal rule (35 Cyc. 397). When, however, the seller is informed by the buyer of the purposes for which the goods are purchased, there is an implied warranty that the thing sold is fit for the intended purpose. This also is a rule of which there is universal acceptance. 35 Cyc. 399, and cases cited.

"From the earliest times, however, a distinction has been drawn between a sale of an article and the furnishing of food at an eating house, hotel or restaurant; the latter partaking rather of the character of service, in which case the standard of liability is the failure to use that reasonable care which the circumstances require. As was said many years ago in Parker v. Flint, reported in 12 Mod. 254, 'An innkeeper *** does not sell but utters his provisions,' and by Professor Beale in his treatise on Innkeepers, § 169, '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.'

"The authorities distinguishing the transaction from a sale recognize that while the food served constitutes, of course, an essential part, yet serving it cannot be regarded as a sale of goods, and this we think the common understanding. A customer at an eating place seeks not to make a purchase but to be served with food to such reasonable extent as his present needs require. With the service go a place, more or less attractive, in which to eat it, a table, dishes, linen, silver, waiters, and sometimes music as an accompaniment, all tending to render more agreeable and palatable that which he eats. The food he obtains is then and there consumed; he does not eat the portion he can comfortably devour and place the remainder in his pockets or other receptable, to be stored away for future needs. So one who purchases a steamship ticket, or one who registers at a hotel, does not conceive the transaction as a sale of goods when, as part of his passage in the one case, and as a guest in the other, he is supplied with meals; nor does one who enters a restaurant to be supplied with a meal or any portion thereof so regard the supplying of his food. This attitude of the public mind is indicated by the familiar signs, 'Meals served here,' 'Dinners served here,' and the like."

In some of the cases holding the action must be predicated upon negligence, it is held the negligence may be shown by circumstantial evidence. Corin v. S. S. Kresge Co., 110 N.J.Law 378, 166 A. 291; Stell v. Townsends C. G. Fruits, 138 Cal.App. (Supp.) 777, 28 P.2d 1077, and cases there cited. In a few cases it is stated that the doctrine of res ipsa loquitur is applicable. Costello v. Morrison Cafeteria Co. of La., Inc., 18 La.App. 40, 135 So. 245; Gainesville Coca-Cola Bottling Co. v. Stewart, 51 Ga.App. 102, 179 S.E. 734. Some of the cases predicated upon the view that title does not pass to the food furnished because the patron does not have authority to take away with him the part not consumed, nevertheless recognize that title does pass to that portion of the food which is consumed by the patron. F. W. Woolworth Co. v. Wilson, supra. One is tempted to inquire, since the portion which is not consumed is not the portion which caused injury, if any, to the patron, why is it of any consequence whether title passed to that portion of it?

There is another line of authorities holding that one who, for compensation, supplies food to another for immediate consumption impliedly warrants that the food is wholesome and if it proves not to be, and injury results from its consumption, the person injured may maintain an action on the implied warranty, without alleging or proving negligence of defendant. Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100; Temple v. Keeler, 238 N.Y. 344, 144 N.E. 635, 35 A. L.R. 920; Greenwood v. John R. Thompson Co., 213 Ill.App. 371; Heise v. Gillette, 83 Ind.App. 551, 149 N.E. 182; Doyle v. Fuerst & Kraemer, 129 La. 838, 56 So. 906, 40 L.R.A. (N.S.) 480, Ann.Cas.1913B, 1100; Smith v. Carlos, 215 Mo.App. 488, 247 S.W. 468; S. H. Kress & Co. v. Ferguson (Tex.Civ.App.) 60 S.W.2d 817; Clark Restaurant Co. v. Simmons, 29 Ohio.App. 220, 163 N.E. 210; West v. Katsafanas, 107 Pa.Super....