Wilson v. Sun Pub. Co.

• Decision Date: 18 May 1915
• Docket Number: 12126.
• Citation: 85 Wash. 503,148 P. 774
• Court: Washington Supreme Court
• Parties: WILSON et al. v. SUN PUB. CO.

148 P. 774

85 Wash. 503

WILSON et al. v. SUN PUB. CO.

No. 12126.

Supreme Court of Washington

May 18, 1915

Department 2. Appeal from Superior Court, King County; John E Humphries, Judge.

Action by Henry L. Wilson and W. A. Carle, copartners, against the Sun Publishing Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with direction to enter a judgment for the plaintiffs for nominal damages only.

John P Hartman and Arthur E. Nafe, both of Seattle, for appellant.

Tucker & Hyland, of Seattle, for respondents.

ELLIS J.

In August, 1913, the plaintiffs were, and since October, 1912 had been, copartners operating a cafeteria, known as the Epler Café, on Second avenue, in the city of Seattle. They commenced this action on August 29, 1913, to recover damages for injuries to their business which it is claimed were caused by certain articles printed and published in the Seattle Sun, a newspaper then being published by the defendant. The first publication was on August 1, 1913, and reads as follows:

'Restaurant Kitchen an Awful Place in Summer Time Says Sun Reporter after a Visit to One.

'Tour Yesterday Reveals Many Changes for Better in Seattle, but He Lands in Cafeteria Where Rotary Fan is Only Thing That Makes Life Possible.

'(By the author of 'The Confessions of a Dishwasher.')

'If it were not for the big rotary fan in the Epler Cafeteria kitchen, nothing could live there--not even a microbe. Certainly nothing could exist there without holding its nose.

'This is summer time in the kitchens. The hot sun which beats down upon the streets is not hotter than the roasting oven in the kitchen where foodstuffs spoil quickly and microbes grow fat.

'There has been a general cleaning up in most of the Seattle restaurant kitchens and dishwashing parlors since the Sun started its clean-up campaign. In some places it has been barely noticeable--the trickle of hot water sounding the first call to cleanliness, or the swish of a scrubbing brush on saturated floors. In other places, the transformation has been complete. Old saturated wooden tables, drainboards and ice boxes have been torn out, and new metal ones put in their places. Pervious floors have been ripped up to make room for clean white tile.

'Eat in More Comfort.

'I am a quick luncher and a haunter of restaurants. And I confess that I am beginning to eat my three meals a day with a greater degree of comfort.

'In my daily travels I have noticed peculiar things--such as new refuse cans with real lids on them, in the alley behind Rippe & Chapman's combination kitchen, and real steam rising from the dishwasher at the White Lunch.

'But yesterday it was hot--real hot for Seattle--and I had a real or imagined desire to find out how the living is in a hot kitchen in hot weather. A friend and I chose a kitchen at random--one to which I had not paid an extended visit before. It happened to be the Epler Cafeteria, 813 Second avenue.

'To repeat, nothing could survive there if it were not for a big rotary fan which appears to have been attached to a motor and placed in the window for the express purpose of forcing an exit for ill odors arising from food scraps which are on the first road toward disintegration.

'Ice-Box Hash.

'The floors of the kitchen were wet, slippery and littered with food scraps. Dishes covered with food from the last meal were left standing on the drainboard near the dishwashing machine. Filthy saturated wooden tables were absorbing the moisture from the latest left-overs.

'And the ice boxes--saviors of food in the summer time, but flavor mixers and microbe harbors at the Epler Cafeteria. They were old, saturated, wooden affairs, capable of absorbing anything, even the roasting heat of the kitchen.

'We opened them one by one and looked inside. There, in each one, piled together was the greatest assortment of foods which I have ever seen accumulated in a single ice box. It might have been appetizing--to one who is fond of hash.

'A Fish Box's Contents.

'There were things to eat, all the way from potatoes and hamburger steak to the latest salads and mayonaise dressings, in a fish box.

'But it was not quite so appetizing when we took a knife and scraped from the saturated wooden trays and walls of the ice box the remains of former meal preparations--generations upon generations of them, it appeared to me.

'And the refuse cans and the scraps which were spilled over make it fortunate there are not many flies in Seattle.

'Yesterday we paid a visit to other restaurants in Seattle, which is another story.

'And before long we shall visit other restaurants--other stories.'

The second article was published on August 4, 1913, and reads as follows:

'Conditions in Local Restaurants.

'It is a matter of common knowledge that many restaurant kitchens, also many hotel kitchens are carelessly conducted and in some cases are absolutely filthy.

'For years no effort was made by the city authorities of Seattle to properly supervise restaurant and hotel kitchens, and there seemed to be no escape from the uncleanly conditions for the thousands of people who patronized those places.

'It is true that there were restaurants and hotels where these bad conditions did not exist, and which were cleanly in every respect, but the good and the bad were so indiscriminately mixed together, that there seemed to be no possible way for the public to distinguish between them.

'The Seattle Sun undertook a public service in investigating these places, and to do so had men go to work in them as dishwashers, etc., for the purpose of securing information.

'As a result many facts were secured and published in the Sun and there followed a general cleaning up all along the line.

'Conditions to-day average much better than they did some months ago.

'The Sun has, however, determined to follow this matter up from time to time and see whether the reformation is progressive, rather than retrogressive.

'Last week this newspaper contained some strictures on certain cafeterias, including Epler's the kitchen of which was visited by two Sun representatives on a very hot day.

'Objections to the statements made by these men and printed in the Sun are made by Mr. Wilson, one of the proprietors, and by others who are friends of the management.

'Mr. Wilson states that immediately following the appearance of the Sun with the strictures on his kitchen he invited fifteen or more of his regular patrons to walk out in his kitchen and investigate for themselves.

'This information the Sun gives as a matter of course, and it also publishes a letter from Edward C. Kilbourne, manager of the building, who states that the kitchen is clean and sanitary. There is not the slightest desire upon the part of the Sun to misrepresent the conditions in Epler's or in any other eating place.

'The men sent out by the Sun to investigate the restaurants do not in any way alter their report, however. They were absolutely unbiased and were acting under rigid instructions to render truthful accounts of everything they discovered.

'The dishwashing arrangements in Epler's were found to be modern and in every way sufficient. The criticisms made were all directed at specific kitchen shortcomings.

'The task of bringing all local restaurants up to a general high average of cleanliness is making the Sun some enemies among proprietors and managers, and there is a loud protest from several of them, who charge loss of business, etc.

'The sensible restaurant proprietor who has been criticized will devote all his energies to immediately putting his kitchen in a condition above reproach, and will waste no breath in idle denunciations.

'He should recollect that restaurants are in reality public service institutions and that the people have a right to demand the very best service from them.'

The final article complained of was printed in the Seattle Sun on August 5, 1913, and reads as follows:

'Finds It Quite Possible to Keep Restaurant Kitchens Cool and Clean.

'Sun Reporter Visits Wing's Cafeteria, Gerald's Café and the Hofbrau--Ice Boxes may be Clean and Dry Also.

'(By the author of 'The Confessions of a Dishwasher.')

'The same afternoon last week on which 1 visited the Epler Cafeteria I made a trip also through the kitchens of Gerald's Café, 824 First avenue, Wing's Cafeteria 1409 First avenue, and the Hofbrau Café, First avenue and Madison street. These were all cleaner than the Epler kitchen.

'Soon after the Sun began to look into Seattle kitchens and dishwashing establishments, Wing's Cafeteria proceeded to rip out old floors and fixtures of its old kitchen and start in afresh with everything clean and white. All the old dishwashing things were destroyed. In place of old floors was laid white tile, while metal tables, trays and shelves took the places of old wooden ones.

'The arrangements for dishwashing in Wing's Cafeteria are entirely separated from the kitchen. The dishes have a large sunny room all to themselves--a room with plenty of air in it, with white walls and ceilings and a white tiled floor. Except for one board on which the dishes are placed after they are washed and dried, there is not an inch of wood in the place. Everything is solid, of stone or metal. Cracks and crevices and porous surfaces in which food might collect are unheard of.

'Diners may Witness.

'There are three dishwashing outfits in this white room, one for washing and rinsing plates and platters, another for washing and rinsing silver and glasses, and still a third for pans.

'Steaming hot water is running in all of them. The room enters directly into the big dining room, so that diners may have a full view of the process if they wish. It is high above the ground and through its spacious windows overlooks Elliott Bay.

'The kitchen

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