Bishop v. Weber, 139 Mass. 411

Bishop v. Weber

139 Mass. 411 | Mass. | 1885

C. Allen, J.

If one who holds himself out to the public as a caterer, skilled in providing and preparing food for entertainments, is employed as such, by those who arrange for an entertainment, to furnish food and drink for all who may attend it, and if he undertakes to perform the service accordingly, he stands in such a relation of duty, towards a person who lawfully attends the entertainment, and partakes of the food furnished by him, as to be liable to an action of tort for negligence in furnishing unwholesome food, whereby such person is injured. This liability does not rest so much upon an implied contract, as upon a violated or neglected duty voluntarily assumed. Indeed, where the guests are entertained without pay,' it would be hard to establish an implied contract with each individual. The duty, however, arises from the relation of the caterer to the guests. The latter have a right to assume that he will furnish for their consumption provisions which are not unwholesome and injurious through any neglect on his part. The furnishing of provisions which endanger human life or health stands clearly upon the same ground as the administering of improper medicines, from which a liability springs irrespective of any question of privity of contract between the parties. Norton v. Sewall, 106 Mass. 143. Longmeid v. Holliday, 6 Exch. 761. Pippin v. Sheppard, 11 Price, 400.

The plaintiff’s action was originally entitled “ in an action of tort.” The plaintiff obtained leave to amend by adding the words “ or contract, the plaintiff being doubtful to which class of actions this action belongs.” This amendment was unnecessary, and may be disregarded, all the amended counts upon which the plaintiff relies being in tort. It is not necessary to sustain the demurrer on account of this lack of literal precision in entitling the action.

The defendant relies on several other extremely fine points of objection, but, without dwelling on them in detail, it may be said, in general terms, that the several counts sufficiently set forth the facts from which the duty of the defendant towards *418the plaintiff sprung, and it is not necessary to state formally and in terms that the defendant occupied such a relation towards the plaintiff that the law cast upon him the duty; they also sufficiently aver that the defendant neglected that duty, and that the plaintiff was injured by reason thereof. It is not necessary to aver that the defendant knew of the injurious quality of the food. It is sufficient if it appears that he ought to have known of it, and was negligent in furnishing unwholesome food, by reason whereof the plaintiff was injured.

Judgment reversed.