Webster v. Blue Ship Tea Room, Inc.
Decision Date | 04 May 1964 |
Citation | 198 N.E.2d 309,347 Mass. 421 |
Parties | , 2 UCC Rep.Serv. 161 Priscilla D. WEBSTER v. BLUE SHIP TEA ROOM, INC. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John J. C. Herlihy, Neil L. Lynch, Boston, for defendant.
Blair L. Perry, Boston, for plaintiff.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and REARDON, JJ.
This is a case which by its nature evokes earnest study not only of the law but also of the culinary traditions of the Commonwealth which bear so heavily upon its outcome. It is an action to recover damages for personal injuries sustained by reason of a breach of implied warranty of food served by the defendant in its restaurant. An auditor, whose findings of fact were not to be final, found for the plaintiff. On a retrial in the Superior Court before a judge and jury, in which the plaintiff testified, the jury returned a verdict for her. The defendant is here on exceptions to the refusal of the judge (1) to strike certain portions of the auditor's report, (2) to direct a verdict for the defendant, and (3) to allow the defendant's motion for the entry of a verdict in its favor under leave reserved.
The jury could have found the following facts: On Saturday, April 25, 1959, about 1 P. M., the plaintiff, accompanied by her sister and her aunt, entered the Blue Ship Tea Room operated by the defendant. The group was seated at a table and supplied with menus.
This restaurant, which the plaintiff characterized as 'quaint,' was located in Boston 'on the third floor of an old building on T Wharf which overlooks the ocean.'
The plaintiff, who had been born and brought up in New England (a fact of some consequence), ordered clam chowder and crabmeat salad. Within a few minutes she received tidings to the effect that 'there was no more clam chowder,' whereupon she ordered a cup of fish chowder. Presently, there was set before her 'a small bowl of fish chowder.' She had previously enjoyed a breakfast about 9 A. M. which had given her no difficulty. (also a fact of consequence). This misadventure led to two esophagoscopies at the Massachusetts General Hospital, in the second of which, on April 27, 1959, a fish bone was found and removed. The sequence of events produced injury to the plaintiff which was not insubstantial.
We must decide whether a fish bone lurking in a fish chowder, about the ingredients of which there is no other complaint, constitutes a breach of implied warranty under applicable provisions of the Uniform Commercial Code, 1 the annotations to which are not helpful on this point. As the judge put it in his charge,
The plaintiff has vigorously reminded us of the high standards imposed by this court where the sale of food is involved (see Flynn v. First Natl. Stores Inc., 296 Mass. 521, 523, 6 N.E.2d 814) and has made reference to cases involving stones in beans (Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100), trichinae in pork (Holt v. Mann, 294 Mass. 21, 22, 200 N.E. 403), and to certain other cases, here and elsewhere, serving to bolster her contention of breach of warranty.
The defendant asserts that here was a native New Englander eating fish chowder in a 'quaint' Boston dining place where she had been before; that '[f]ish chowder, as it is served and enjoyed by New Englanders, is a hearty dish, originally designed to satisfy the appetites of our seamen and fishermen'; that '[t]his court knows well that we are not talking of some insipid broth as is customarily served to convalescents.' We are asked to rule in such fashion that no chef is forced 'to reduce the pieces of fish in the chowder to miniscule size in an effort to ascertain if they contained any pieces of bone.' 'In so ruling,' we are told (in the defendant's brief), 'the court will not only uphold its reputation for legal knowledge and acumen, but will, as loyal sons of Massachusetts, save our world-renowned fish chowder from degenerating into an insipid broth containing the mere essence of its former stature as a culinary masterpiece.' Notwithstanding these passionate entreaties we are bound to examine with detachment the nature of fish chowder and what might happen to it under varying interpretations of the Uniform Commercial Code.
Chowder is an ancient dish prexisting even 'the appetites of our seamen and fishermen.' It was perhaps the common ancestor of the 'more refined cream soups, purees, and bisques.' Berolzheimer, The American Woman's Cook Book (Publisher's Guild Inc., New York, 1941) p. 176. The word 'chowder' comes from the French 'chaudiere,' meaning a 'cauldron' or 'pot.' A New English Dictionary (MacMillan and Co., 1893) p. 386. Our literature over the years abounds in references not only to the delights of chowder but also to its manufacture. A namesake of the plaintiff, Daniel Webster, had a recipe for fish chowder which has survived into a number of modern cookbooks 2 and in which the removal of fish bones is not mentioned at all. One old time recipe recited in the New English Dictionary study defines chowder as 'A dish made of fresh fish (esp. cod) or clams, stewed with slices of pork or bacon, onions, and biscuit. 'Cider and champagne are sometimes added.'' Hawthorne, in The House...
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...contriburory negligence as such is not a defense to a breach of warranty action where privity exists. See, Webster v. Blue Ship Tea Room, Inc. (1964), 347 Mass. 421, 198 N.E.2d 309; Dallison v. Sears, Roebuck & Co., supra; Williams v. Brown Mfg. Co., 93 Ill.App.2d 334, 236 N.E.2d 125; O.S. ......
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