Landfield v. Albiani Lunch Co., 268 Mass. 528

Landfield v. Albiani Lunch Co.

268 Mass. 528 | Mass. | 1929

Wait, J.

The plaintiff sues in contract for breach of the implied warranty of a keeper of a restaurant that the food served therein is wholesome. Friend v. Childs Dining *530Hall Co. 231 Mass. 65. He testified that he noticed a peculiar taste in beans served him on August 16, 1928, and that within a few hours after eating them he became ill. There was contradictory evidence on the issue whether the illness arose from eating unwholesome food. Evidence that no complaints were made by any other customer with regard to beans served in the restaurant on either August 15 or 16, 1928, offered by the defendant, was admitted against the plaintiff’s exception. After a finding for the defendant, the case was reported to the Appellate Division of the Municipal Court of the City of Boston which dismissed the report. The only question presented on this appeal is the propriety of the ruling on evidence.

• The fact that others than the plaintiff ate of the food complained of without ill effects is competent evidence .that it was not unwholesome. See Gracey v. Waldorf System, Inc. 251 Mass. 76. There is a reasonable inference based on common experience that one who ate and suffered as he believed in consequence would make complaint. There is a further reasonable inference, based on logic, that if no one complained no one suffered. Obviously, the latter conclusion is not convincing that the food was wholesome, unless one is satisfied that both plaintiff and others ate of it. Evidence of no complaint is too remote and should not be admitted unless, in addition to the fact that no complaints were made, there is evidence of circumstances indicating that others similarly situated ate and had opportunity for complaining. The report states that all material evidence is reported. It discloses no direct testimony of the number of customers served daily or that beans were served to any one except the plaintiff. There was, however, evidence that beans were cooked daily and sent to the restaurant; that any remaining from the pot sent on August 15 were kept separate from beans sent on August 16; and that a pot contains about forty full orders which, with side and full orders, will serve about one hundred persons. Although the defendant’s witnesses failed to, testify that any persons were served with beans, and one of them, the manager, testified that he did not know how *531much of the' nfew pot was used before the plaintiff was served, or whether there were any orders left over from the pot of the day before, or how many orders for beans were served on August 15 or 16, the language of the questions objected to might well imply that many were served. No objection was taken to the form of the questions. The judge, who- saw the witnesses and heard the questions and answers, may well have inferred from the usual supply furnished daily and the number of orders in each supply that many customers were fed from the pots of August 15 and 16. His statement in his report that he gave considerable weight to the testimony justifies the .belief that he understood from the evidence that many were served in circumstances similar to those affecting the plaintiff. His ruling was correct, if that understanding was justified. While the question is close, we think that in the exercise of his discretion he could properly admit the evidence, and that no abuse of his discretion appears.

Order dismissing report affirmed.