Childs Dining Hall Co. v. Swingler

This is an appeal from a judgment against Childs Dining Hall Company, a body corporate, operating a chain of restaurants in the City of Baltimore, in favor of Julia Swingler, plaintiff below and here the appellee.

The questions presented for our consideration by this appeal arise on the ruling on a demurrer to a second amended declaration, and on prayers offered at the conclusion of all the testimony. Demurrer prayers offered at the end of the plaintiff's case were refused as to Childs Dining Hall Company and granted as to Ward Baking Company, originally one of the defendants. Demurrer prayers were re-offered by the appellant at the conclusion of the testimony on both sides, and were refused. There is an exception to the granting of a prayer submitting the case on the theory of an implied warranty that the food supplied was "fit for human consumption" and that, if it was found by the jury that the food when served contained foreign substances and was unfit for human consumption and the plaintiff was injured thereby, the plaintiff was entitled to recover; and an exception to the rejection of another prayer of the defendant designed to refute the theory of an implied warranty. Thus the questions here involved are clearly presented by these rulings on the demurrer to the declaration and on the prayers.

The facts are few and simple and there is no dispute about them. The principal question for our consideration has never been passed upon in this state, and has been the subject of great controversy in numerous jurisdictions and of much diversity of opinion by learned jurists and writers throughout the country.

The plaintiff entered a restaurant of Childs Dining Hall Company. She was directed by an employee to a table and ordered a crab cake sandwich, and then proceeded to eat her lunch. When she had about finished, while eating a "small portion of bread," a piece of tin, one-eighth inch by one-half inch, was driven into her gum between her teeth, whereby she was injured. She states that: "* * * the hostess met me at the door and escorted me to a seat. The day was rather warm, and I ordered a crab-cake sandwich on rye bread and a glass of beer. I had consumed all the sandwich but a small portion. I had an appointment for half-past two, and I had plenty of time, so I just sat there, and I had a small portion of the beer left in the glass, and a small portion of the bread of the sandwich, and for some reason or other, I bit down on this object, which caused an excruciating pain and made me rather sick, and I put my hand over my mouth — I don't know whether the waitress noticed me, but I know she asked me if anything was wrong, and I told her I had something in my tooth, and I felt pretty ill and I asked for the lavatory, and she showed me to the steps, and immediately the hostess came down behind me and went with me to the lavatory. I had food in my mouth and, of course, I did not speak very plainly, and she helped me to dislodge this object."

The original declaration was laid in tort and charged the defendant, the appellant here, and Ward Baking Company, the manufacturer of the bread, with want of due care and negligence. The amended declaration changes the form of action from tort to an action of assumpsit and alleges that: "* * * the plaintiff entered the restaurant of one of the defendants herein, the Childs Dining Hall Company, sometimes known as Childs Company, a body corporate, and ordered a crab-cake sandwich, and while eating the bread, baked and manufactured by the defendant, the Ward Baking Company, a body corporate, which was served by the employees of the Childs Dining Hall Company, sometimes known as Childs Company, a body corporate, the plaintiff bit into a piece of tin, which was attached to and lodged in the bread and unseen by the plaintiff, and was thereby painfully injured about her teeth, gums, and upper roof of her mouth; that the relationship and manner of dealing with the plaintiff as a customer in the purchase and use of said sandwich justified her in the belief that it was free from hidden and dangerous articles and that said crab-cake sandwich, ordered and purchased by the plaintiff, was impliedly represented or warranted by the defendants as to quality and fitness for use, and to be non-injurious to the health of the plaintiff and free from any foreign substance and fit for human consumption; that as a result of said injuries, the plaintiff was confined to her bed and was compelled to have extracted two (2) teeth, following an abscess caused from said injuries; and the plaintiff further says that she has suffered serious and permanent injuries to her teeth and is still suffering from said injuries, and has expended considerable monies for medicines, medical and dental bills, and has lost part of her means of a livelihood in being unable to practice her profession as a nurse."

The question now presented, as conceded by both parties, is whether the restaurant keeper, in the serving of food, gives an implied warranty to the customer that its food is wholesome, free from injurious substances, of merchantable quality, and fit for human consumption. This question is so close and so greatly controverted that cases only similar in character are not helpful as precedents. To illustrate, a sharp distinction is made between the supplying of food in a restaurant, to be immediately consumed on the premises (together with those accompanying services afforded by the proprietor), and with those cases where food is sold in containers, or otherwise, to be taken away and consumed at some other time and place, or with suits against manufacturers, each class of which cases are the subject of much litigation and difference of opinion. There are numerous cases and diversity of opinion as to foreign substances or poisonous conditions of food contained in sealed cans, as well as upon the question here presented. In the State of New Jersey it has been held by the Supreme Court that a retail dealer is responsible for an injury by poisonous or unwholesome food contained in a sealed package (Griffin v. James Butler Grocery Co., 108 N.J.L. 92,156 A. 636), but that a proprietor of a restaurant is not responsible under an implied warranty for the poisonous quality and injurious condition of food that he serves for immediate consumption in his place of business. Nisky v. Childs Company,103 N.J.L. 464, 135 A. 805. The major difference of opinion arises out of the question whether in a restaurant one merely purchases a service, or enters into a contract for the sale of food or merchandise. If the sale theory of the transaction prevails, and the implied warranty in consequence thereof is given, then the restaurant keeper or inn keeper becomes, in law, practically an insurer, and the proof required for a recovery is restricted to the payment for the service, including the furnishing of the food consumed on the premises, and the injury complained of. On the other hand, if what an inn keeper or restaurant keeper does is only the supplying of a service for certain compensation, the question is one of negligence.

The measures of damages in tort and on an implied warranty in most cases are different. It is contended on the part of the defendant (appellant) in this case that the damages to be recovered on a sale are only the difference in the value of the food contracted for and the value of the food delivered, which, in a case of this kind, is negligible, however serious the consequences and the personal injury. This question was presented by a prayer of the defendant, which was refused. We conceive the rule in a case like this to be not the difference in value of a good loaf and a bad loaf, but fair compensation for the injury occasioned. Ryan v. Progressive Stores, 225 N.Y. 388,175 N.E. 105, 107, where the learned Justice (Cardozo) stated: "The argument is made that the only damage to be recovered for the breach of the warranty of merchantable quality is the price of the bread, the difference between the value of a good loaf and a bad one. The rule is not so stubborn. Undoubtedly, the difference in value supplies the ordinary measure. * * * The measure is more liberal where special circumstances are present with proof of special damage. * * * Here the dealer had notice from the nature of the transaction that the bread was to be eaten. Knowledge that it was to be eaten was knowledge that the damage would be greater than the price."

In other words, the latter view is to give to a plaintiff substantially the same measure of damages for a breach of the alleged warranty as is given in an action for negligence. These, and many kindred questions, because of the changed order of things in the distribution of food, are being constantly asserted in the courts, but on this appeal it seems to us that the single question presented is: Does the supplying of food in a restaurant constitute a sale, under the Uniform Sales Act, art. 83, sec. 36, or under the common law, carrying an implied warranty, or is it, as contended by the appellant, merely the supplying of a service incident to which is the serving of food, and that no implied warranty is given, and that the restaurant proprietor or inn keeper is only liable in case he does not exercise due care and is guilty of negligence?

Leading cases supporting the theory of an implied warranty are that of Friend v. Childs Dining Hall Co., 231 Mass. 65,120 N.E. 407, also Smith v. Gerrish, 256 Mass. 183, 152 N.E. 318, and Temple v. Keller, 238 N.Y. 344, 144 N.E. 635. These cases directly hold, and are followed by others, that, where the case is in assumpsit, there is an implied warranty, derived from the very nature of the transaction, and that the proof required is only such facts as ordinarily arise in the procuring of a meal in the usual way in a restaurant or inn, and the unwholesome condition of the food, causing injury to the plaintiff; the law foregoes further or additional proof by implying a warranty and so the case goes to the jury, and the restaurant keeper becomes, in effect, an insurer. This theory is vigorously assailed in many cases. The Uniform Sales Act does not afford any considerable aid in this matter, because this act is only declaratory of the common law. Luria Bros. Co. v. Klaff, 139 Md. 586,115 A. 849.

In a review of the cases holding to the theory of implied warranty, which makes the restaurant keeper, for the most part, an insurer of the merchantable quality and wholesome condition of his food, we find New York, Massachusetts, and other states so holding. Friend v. Childs Dining Hall Co., 231 Mass. 65,120 N.E. 407, opinion by Rugg, C.J. Crosby, J., dissented, taking the view that restaurant keepers do not so impliedly warrant, and the clean cut issue between implied warranty on the one hand, and express warranty or knowledge of the foreign substance or ingredient, or negligence, on the other hand, is there presented. In further support of the theory of implied warranty, we findLeahy v. Essex Co., 164 App. Div. 903, 148 N.Y. Supp. 1063;Rinaldi v. Mohican Co., 171 App. Div. 814, 157 N.Y. Supp. 561; also annotation to Friend case, 5 A.L.R. 1115; Temple v.Keeler, 238 N.Y. 344, 144 N.E. 635; Kress Co. v. Ferguson (Tex. Civ. App.) 60 S.W. [2nd] 817; Bernstein v. Jockey Club,222 App. Div. 191, 225 N.Y. Supp. 449; West v. Katsafanas,107 Pa. Super. 118, 162 A. 685; Cushing v. Rodman, 65 App. D.C. 258, 82 F.2d 864, 871, Stephens, J., a well considered opinion. Among the many decisions supporting this theory is the leading case of Ward v. Great Atlantic Pacific Tea Co.,231 Mass. 90, 120 N.E. 225, with numerous citations, but this case relates to the sale of canned beans in which a small pebble was found, and which injured and broke a tooth, and is easily distinguished from the one at bar. The food was not for immediate consumption on the premises, and therefore the doctrine of service instead of contract could not be applied. The sale was complete. This case is basis for an article in 34 Mich. Law Rev., p. 494.

In Sloan v. Woolworth Co., 193 Ill. App. 620, relating to the purchase of a can of herring, taken from the place of business of the seller, later eaten — the result was ptomaine poison. The court, in that case, held there was a warranty of wholesomeness by the retailer. In Griffin v. Butler Grocery Co., 108 N.J.L. 92,156 A. 636. canned peaches were sold, and were eaten at the home of the purchaser. Those who ate the peaches became ill; those who did not were not affected. It was held that the doctrine of implied warranty applied. To the same effect is the case of Bowman v. Woodway Stores, Inc., 258 Ill. App. 307.Gimenez v. Great Atlantic Pacific Tea Co., 264 N.Y. 390,191 N.E. 27, relates to the purchase of a can of crab meat from a retailer, not for consumption upon the premises. The case of Meyer v. Kerschbaum, 133 Misc. 330, 232 N.Y. Supp. 300, related to a case where there was a carpet tack in some sugar buns. The plaintiff was injured thereby, and a recovery was allowed, the court holding that there was an implied warranty, and for authority the case of Holt v.Mann (Mass.) 200 N.E. 403 was cited.

In the case of Cleary v. National Stores, 291 Mass. 172,196 N.E. 868, the doctrine of implied warranty as between immediate parties was recognized, but it was held that other parties injured by the goods sold were not entitled to recover, unless there was evidence of negligence. See, also, Flaccomio case (Flaccomio v. Eysink), 129 Md. 367, at page 379, 100 A. 510, 513. Further developing this question, it has been held that a customer entering a restaurant, eating and paying for his order, impliedly makes known to the vendor the particular purpose for which the article is required. And so this implied warranty is recognized in numerous other cases, and has been applied to almost every kind of food and to the presence of foreign substances in containers or in the food. See Rhodes v. Libby,133 Or. 128, 288 P. 207; Hubbard v. Rockaway Lunch Co., 131 Misc. 53, 225 N.Y. Supp. 638. And in early times in England the principle was thus stated: "If I go to a tavern to eat, and the taverner gives and sells me meat and it is corrupted, whereby I am made very sick, action lies against him without any express warranty for there is a warranty in law."

This doctrine of implied warranty is recognized and defined inCushman v. Rodman, supra, wherein a restaurant owner who served a roll not manufactured or baked by him, with a pebble therein, whereby a customer was injured, was held liable for breach of an implied warranty and consequential damages. The court there said: "We conclude that upon the service of food for a consideration and for immediate consumption upon the premises of the seller, but which food was not prepared by the seller but purchased elsewhere and the defect in which was not discoverable except by destroying the marketability of the article, there is an implied warranty that the food is wholesome, for breach of which an action lies for the recovery of consequential damages."

In 55 C.J. sec. 866, p. 888, it is said: "A recovery may be had for personal injuries in an action upon a breach of warranty, where such injuries are the natural and probable result of the breach, and such as were within the contemplation of the parties, and it has been further held that damages for personal injuries are recoverable, although there was no fraud in the warranty."

And so continue the authorities upon this question, as shown in the cases cited, and in many others, supporting the theory of contract and implied warranty.

Some consideration, in this opinion, should be briefly given to subsections (1) and (2) of article 83, section 36, of the Uniform Sales Act, as it relates to implied warranty. These sections read as follows:

"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.

"(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality."

It is beyond argument that the restaurant keeper knew or understood the purpose for which the food was required and that she relied upon him to supply to her food safe for human consumption and of merchantable quality. There is nothing in the Sales Act which interferes with the application of that rule, provided there is a sale within the meaning of the act. In 55C.J. sec. 733, p. 764, "Sales," it is stated that: "It is the general rule that where the sale is for immediate consumption, there is an implied warranty that the food is wholesome and fit for the purpose," and in the case of Ryan v. Progressive GroceryStores, 255 N.Y. 388, 175 N.E. 105, the eminent jurist in his opinion in that case makes numerous observations relating both to the right of recovery and to the measure of damages, upon the theory of implied warranty. This statement seems to have been predicated on the authority of the New York and Massachusetts cases.

There are many decided cases holding against the theory of an implied warranty, and adopting the principle that one merely purchases a service when he enters a restaurant or inn to obtain food or drink, to be served on the premises, with the accessories and surroundings ordinarily found in such eating places; and to enable a plaintiff to recover in cases such as this there must be an express warranty, or knowledge of the unmerchantable quality of the food, or negligence.

In support of this theory, Judge Augustus N. Hand, in Valeriv. Pullman Co. (D.C.) 218 Fed. 519, 524, stated that: "There is no well-considered authority and no public policy which afford any justification for imposing upon the defendant the absolute liability of an insurer of its food, and I deem that the only obligation of the defendant, or any keeper of a restaurant or inn, is to exercise the reasonable care of a prudent man in furnishing and serving food."

In the case of Horn etc. Baking Co. v. Lieber, (C.C.A.)25 F.2d 449, which involved a tack in strawberries served in a public restaurant, opinion by Judge Buffington, it was said: "We are clear that, under the authorities, an inn keeper is not the insurer of food, but his duty is that of exercising due care in the furnishing and serving thereof."

In Merrill v. Hodson, 88 Conn. 314, 91 A. 533, it was held that a restaurant keeper's service of food for immediate consumption was not a sale of goods, and that an implied warranty that the merchandise sold was reasonably fit for the purposes for which it was ordered would not apply. This was on the ground that, in ordering food in a restaurant, to be consumed on the premises, the patron does not become the owner of the food, but only of the privilege of consuming what he wishes of it. It would follow, therefore, unless there was negligence or an express warranty on the part of defendant or his servants, there could not be a recovery. The theory of an implied warranty could not support the action.

In the case of Woolworth Co. v. Wilson (C.C.A.) 74 F.2d 439, Judge Sibley, discussing the right of a plaintiff to recover upon an implied warranty against the defendant on a mere showing that she was injured by glass in ice cream served her at a soft drink counter, and referring to the leading cases holding such transactions to be a sale, said tort, and not implied warranty of fitness and quality, was the controlling principle, and, "We find the better reasons to be not with the decisions in Massachusetts and New York, but those refusing to follow them." Evidently the cases referred to by the learned judge were Friend v. ChildsDining Hall Co., 231 Mass. 65, 120 N.E. 407, and Temple v.Keeler, 238 N.Y. 344, 144 N.E. 635. It is well recognized and established that in New York, Massachusetts, and other states the doctrine of implied warranty has been adopted.

The contrary view, however, is supported in the cases ofHooper Cafe Co. v. Henderson, 223 Ala. 579, 137 So. 419;McCarley v. Wood Drugs, 228 Ala. 226, 153 So. 446; Stell v.Townsends etc. Fruit, 138 Cal.App. 777, 28 P.2d 1077, relating to spoiled fish; Corin v. Kresge Co., 110 N.J.L. 378,166 A. 291, relating to glass in cole slaw; Wilson v. Moore (La. App.), 159 So. 399, relating to spoiled cocoanut cream pie;Rickner v. Ritz Restaurant Co., 181 A. 398, 13 N.J. Misc. 818;Loucks v. Morley, 39 Cal.App. 570, 179 P. 529; Rowe v.Louisville Nashville R. Co., 29 Ga. App. 151, 113 S.E. 823;Sheffer v. Willoughby, 163 Ill. 518, 45 N.E. 253; Wiedeman v.Keller, 58 Ill. App. 382; Travis v. Louisville Nashville R.Co., 183 Ala. 415, 62 So. 851; Greenwood Cafe v. Lovinggood, 197 Ala., 34, 72 So. 354; Merrill v. Hodson, 88 Conn. 314, 91 A. 533; Bigelow v. Maine Cent. R. Co., 110 Me. 105, 85 A. 396; Valeri v. Pullman Co. (D.C.) 218 Fed. 519;Benjamin on Sales (4th Ed.) 671; Kenney v. Wong Len, 81 N.H. 427,128 A. 343; Horn Hardart Baking Co. v. Lieber, (C.C.A.)25 F.2d 449; Rowe v. Louisville N.R. Co.,25 Ga. App. 151, 113 S.E. 823; Lynch v. Hotel Bond Co., 117 Conn. 128,167 A. 99; Nisky v. Childs Co., 103 N.J.L. 464, 135 A. 805. See, also, dissent in Friend v. Childs Dining Hall Co., supra;Roseberry v. Wachter, 3 W.W. Harr, 253, 33 Del. 253, 138 A. 273.

And thus we see the conflict of views coming from the highest judicial authority in many states. In Maryland the precise question has never been before this court. There are two Maryland cases dealing with the liability of persons supplying foods or beverages containing foreign or injurious substances or ingredients. Both of these cases are actions in tort. Flaccomiov. Eysink, supra, was an action brought against the immediate vendor or retailer, in which he was charged with selling whisky adulterated with wood alcohol and selling it as pure whisky. The suit was instituted against both Flaccomio and Lee Sonneborn. The court, in laying down the principle governing a case of that character, said: "In the absence of some evidence that Sonneborn or his agents knew of the presence of wood alcohol, or of some evidence of fraud, deceit, or negligence on his or their part, there is no ground or principle upon which he could be held liable under the pleadings in the case for the injury the plaintiff sustained." The correctness of this statement is obviously beyond dispute. That case was an action in tort, and the right to recover, therefore, must have been predicated upon fraud, deceit, or negligence, and evidently such did not appear in the testimony.

The case of Goldman Freiman Bottling Co. v. Sindell,140 Md. 488, 117 A. 866, was an action in tort for negligence, in which the defendant was charged with negligently manufacturing and selling to a retailer a bottle of beverage called "Whistle," containing portions of glass, which cut his throat as he was drinking it, in consequence of which he became ill and suffered damages. The suit was against Goldman Freiman Bottling Company, manufacturers and distributors of the beverage. This being an action in tort against a manufacturer for negligence in manufacturing and distributing a drink for human consumption, in a sealed bottle, containing fragments of glass, the doctrine of implied warranty could not have been invoked, and the distinction between these cases and the case at bar is obvious and affords us no direct precedent in arriving at a conclusion in this appeal. But these cases, while entirely dissimilar in the form of action employed, do deal with food adulterations, injurious ingredients, and foreign substances, and they do establish the right to sue and to recover in an action of tort, where proof of negligence, knowledge of such adulterations, injurious or foreign substances, were known to the seller or manufacturer.

Further consideration of the Flaccomio and Goldman FreimanBottling Company cases shows that this court expressly adopted the language in Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S.W. 155, 157, relating to foreign substances in food or drink, injurious to health or safety, where it was said: "This liability is based on an omission of duty or act of negligence, and the way should be left open for the innocent to escape. However exacting the duty or high the degree of care to furnish pure foods, beverages, and medicines, we believe with Judge Cooley, as expressed in Brown v. Marshall, supra, (47 Mich. 576, 11 N.W. 392), that negligence is a necessary element in the right of action, and the better authorities have not gone so far as to dispense with actual negligence as a prerequisite to the liability. In fact, there is no logical basis of liability for personal injury without some negligent act or omission."

This doctrine that a manufacturer of goods is not an insurer was restated in the opinion of the learned judge in Goldman Freiman Bottling Co. v. Sindell, supra, 140 Md. 488, at page 497, 117 A. 866, 869, where it was stated that: "The inquiry therefore is whether the presence of broken glass in the bottle at the time it was sold by the appellant was evidence of that negligence. In our judgment it was, and the law applicable to the facts of the case was clearly, accurately, and fully stated in the defendant's granted prayers, which devolved upon the jury the duty of determining from that and all the other evidence in the case whether the defendant had been guilty of the negligence charged in the narr."

Neither the above cases, nor the form of action employed in them, are the same as the case at bar, but these cases show the decided tendency in our state in dealing with cases of this character, not under the theory of contract, implied warranty and insurer, but under the theory of the want of due care and negligence. We hold that an action in tort in such cases as this affords to the injured person a convenient and adequate remedy, and disposes of the contention that the adoption of the negligence theory, rather than that of an implied warranty, would amount to a practical denial to those injured in cases from food adulteration, foreign substances or unmerchantable quality. The theory of implied warranty, as previously pointed out, denies to the restaurant keeper an adequate defense; for, where it can be shown that he has served unwholesome food upon his premises, the obligation of an insurer is imposed upon him regardless of the care and prudence he may have exercised.

In 5 A.L.R. 1115, 35 A.L.R. 922, 98 A.L.R. 687, 104A.L.R. 1033, there is a summing up of the weight and effect of many cases, and the conclusion is reached and the position taken that the weight of authority, "judicially, at least, is to the effect that in the absence of statute, one serving food to be immediately consumed on the premises is neither an insurer of the fitness or wholesomeness of the food served nor liable upon an implied warranty."

In view of what we have said and of the judicial weight of authority as it appears to us, we have concluded that there should be a reversal in this case.

A new trial will be awarded in order that the plaintiff may, if so advised, apply for leave to file an amended declaration, suing on the ground of negligence in the defendant, and proceed further on that theory.

Judgment reversed and new trial awarded, with costs.