179 P. 529 | Cal. Ct. App. | 1919
Lead Opinion
This is an action brought to recover damages for the breach of an implied warranty, under section 1775 of the Civil Code of the state of California, for alleged poisoning of plaintiff by reason of his having eaten rice pudding as a part of his meal at the restaurant of defendant, and because of the sickness caused thereby, and his subsequent inability for a long period to practice his profession as an attorney at law.
From the record in this case it appears that on the fourteenth day of August, 1911, plaintiff went to the restaurant of said defendant, at about noon of said day, and became the *571 guest of said defendant at said restaurant, and then and there, as such guest, bought and paid for and ate his noonday meal, which consisted of one order each of ham and egg sandwich, rice pudding, and tea. That said meal was furnished to said plaintiff by said defendant as a guest at said restaurant, and not otherwise. That about six and one-half hours after plaintiff had eaten his said meal, as aforesaid, he became ill, at said time being taken with cramps and an attack of dysentery, which was followed by a continuation of said illness, accompanied by vomiting. That the plaintiff was thereafter seriously ill for a period of thirty days, during which time he was wholly incapacitated for work, or attending to the duties of his profession; and that thereafter, as the result of said illness, he was partially incapacitated for a period of about six months, during which time he was intermittently able to attend to his duties about one-third of the time. That since the expiration of said six months plaintiff has at times suffered from the effects of said illness, by reason of nervousness and at times loss of memory. It is not alleged or shown that plaintiff made his home at the restaurant, or that he was aught but a casual customer for this one instance only. Defendant contends that section 1775 of the Civil Code does not apply here; that his legal obligation to plaintiff and to the public generally was fully observed by his use of ordinary care in the business. In other words, he says that he was not guilty of negligence.
So far as material here, it is alleged in the complaint, and denied in the answer, that "said defendant did then and there impliedly warrant that all the food, provisions, and meals served at said restaurant and lunchroom were pure, sound and wholesome." The record here consists only of the transcript and appellant's opening brief. The court found, among other things, as follows: "That the illness of said plaintiff was caused by eating the said rice pudding, and because of some deleterious condition of said pudding, the nature of which this court is unable to find, from the evidence in this case." The court further found as follows: "That the defendant did not, at said place, at said or any time, sell provisions or food or meals except only in the regular course of his restaurant business, and to the guests of the restaurant, same being used as meals for the consumption of the guests as such in said restaurant. That the defendant did not sell *572 provisions for human consumption except and only as above stated; that the defendant did not, then and there, or at any other time or place, impliedly, or otherwise, warrant that all or any of the food, provisions and meals served in said restaurant and lunchroom were pure, sound and wholesome. That said defendant exercised great care in the preparation of the meals to be served to his guests at said restaurant, and particularly . . . in the selection of the ingredients from which the food served to his guests at said restaurant, as aforesaid, was made up and compounded; . . . in the keeping of said restaurant clean, and in all respects fit and proper as a place for the preparation of, keeping and serving of meals to guests in a restaurant; . . . in the selection of ingredients from which the rice pudding referred to in plaintiff's complaint was made; that said rice pudding was made from rice, milk, eggs, and corn starch, all of which were of the best quality. That after the said ingredients were put together, the said pudding was boiled and cooked in a very hot oven, the heat being more than sufficient to destroy any and all germs or bacteria from which ptomaine poisoning could or might result; that immediately after being cooked the said rice pudding was taken and put in a closed, tight, clean refrigerating-box where the temperature of same was reduced to a very low degree, said pudding remaining in said box at all times up to and within not to exceed twenty minutes of the time when same was served to the guests of the restaurant, including plaintiff. That the room in which all meals were kept, served, and consumed was thoroughly ventilated, the air being withdrawn therefrom by powerful fans, and expelled outside the building; and that in so far as it was possible so to do, the said air was kept pure and wholesome, and that at no time was the temperature of said room allowed to become sufficiently high to permit of the propagation, breeding, or spreading of ptomaine bacteria or germs, or such as would produce ptomaine poisoning. That said defendant was not negligent in any respect in the conduct, management, or operation of his said restaurant, or in the selection of or the preparation of food to be served to his guests; and particularly in the selection of the ingredients from which said rice pudding was compounded; and was not negligent in the preparing, cooking, keeping, or serving of said rice pudding." *573
The said findings are fully sustained by the evidence. It is apparent from the record that defendant's restaurant was clean and sanitary, and that defendant here was absolutely free from any negligence. There was no lack of ordinary care whatever in the handling or sale of the said meal so sold, or any portion thereof. We are, therefore, confronted with the question — and indeed, the appellant here so contends — as to whether the sale of the said meal by defendant to plaintiff, under these circumstances, would carry with it an implied warranty of fitness, under section 1775 of the Civil Code. If there is such an implied warranty, it is obvious that there is no legal requirement on the part of plaintiff either to allege or prove negligence; and, indeed, in this case there is no allegation or pretended proof of either an express warranty of quality or of knowledge on the part of defendant of the unwholesome or deleterious character of the said rice pudding so served, or of any of its ingredients, or, as has already been stated, of defendant's negligence in the premises.
It would seem, from an examination of the authorities in this state, that we are treading virgin soil, for, apparently, no case involving the issues here presented has ever reached an appellate tribunal in California. While quite a number of common-law cases will be found wherein it is held that a dealer in foods, selling directly to consumers for family use in their own homes, is liable on an implied warranty, as, for instance, butchers selling meat to customers for consumption at home — of which cases Wideman v. Keller,
There are many cases, some of which are cited by appellant here, that have grown out of the sale of provisions by a dealer engaged in selling food for family use, such as butchers, pastry venders, and the like; but these cases are clearly not in point. Of the common-law cases, wherein it is held that, in the absence of negligence, a restaurant-keeper is not liable for ill health resulting from the unwholesomeness of food furnished by him, Sheffer v. Willoughby, supra, is perhaps the leading case. In discussing that case the court uses the following language: "In the first of the cited cases the obligations of a *575
restaurant-keeper are discussed, and a statement made of the law which very plainly means, and has been generally understood to mean, that the only remedy for the consequences of eating unwholesome food, supplied by an innkeeper or restaurant-keeper in the regular course of his business, is one for lack of due care." Plaintiff here cites a well-considered Massachusetts case, viz., Farrell v. Manhattan Market Co.,
A restaurant has been defined as "a public eating place." In the same case it was held that "a restaurant-keeper is not, according to ordinary usage, either a merchant or a manufacturer. The fact is that both the sale and the manufacture of foods are minor incidents to the keeping of a restaurant. . . . It cannot be denied that the eating of food by a customer at a restaurant, in the regular course of business, involves a sale of the food eaten. The price of the food alone is usually not specified, but it is included in a lump sum with the charge for service and use of dishes, chair, and table. It is, nevertheless, a sale of the food consumed, within the technical definition of that term."(San Francisco v.Larsen,
If, in the absence of any negligence whatever, a restaurant-keeper is liable on the ground of implied warranty of the fitness of food furnished by him, such liability can arise only by reason of said section 1775 Our attention has not been called to any other code section that gives the right of recovery in the absence of negligence. In some of the common-law cases it is said that where a "manufacturer" or"dealer" contracts to supply an article for a particular purpose, there is an implied warranty that the article is reasonably fit for that purpose. Under the principle as thus stated, it has been held by the English courts, and by courts of certain sister states, that a dealer engaged in the business of selling food for family consumption is liable if the food be not reasonably fit for that purpose. (In this connection see the English cases cited in Farrell v. Manhattan Market Co.,
This brings us to the real question in the case: What is the scope and meaning of section 1775? As we have shown, it was held in the Merrill and Valeri cases (
Appellant has cited certain decisions of the New York supreme court, criticised by Judge Hand in Valeri v. Pullman Co.,supra. These are not decisions by a court of last resort, and we agree with all that Judge Hand says of them. Of the decisions of courts of last resort, cited by appellant, some will be found to be cases where the plaintiff relied upon and alleged negligence, as, for instance, Doyle v. Fuerst Kraemer, supra, where the court said of defendants' evidence that it "falls short of showing even ordinary care"; others are cases where the defendant sold food to the plaintiff for family or domestic use, as Parks v. Yost Pie Co.,
There is, however, another aspect to this case which has not been touched, so far as the record in this case discloses, but which, in view of what we believe to be the importance of this decision, we feel should be touched upon, and that is, that the plaintiff here having elected to rely upon an alleged implied warranty under section 1775 of the Civil Code, that we are confronted, therefore, with the question: "What is the measure of damages in such case?" This question is answered by section 3313 of the Civil Code. The court found "that prior to the time of being taken ill, as aforesaid, plaintiff's average gross income from his profession as an attorney at law was four hundred ($400) dollars per month; that no evidence whatsoever was introduced or offered as to what his average, or any, income was after the fourteenth day of August, 1911; and this court is not able to find what amount, if anything, plaintiff was able to and did earn in his profession *579 subsequent to the fourteenth day of August, 1914." The court further found that, "no evidence whatsoever was offered or introduced of the value of said rice pudding at the time at which plaintiff bought his said meal, or of its actual value at said time, or at any time; and no evidence whatsoever was introduced showing, or tending to show, the difference or excess, if any, of the value of said rice pudding over what it would have been at said time had the same been absolutely pure, wholesome, and not deleterious; and no evidence whatsoever was introduced of any loss or damage incurred in any effort, in good faith, to use said pudding for the purposes for which it was purchased; and no evidence whatsoever was introduced of what would or might be a fair or any compensation for any loss incurred by the plaintiff in any effort whatsoever to use said pudding for the purposes for which the same was sold to him." The court further found as a fact "that plaintiff was not damaged by defendant in any sum whatsoever."
Assuming — although in this case we hold to the contrary — that there is an implied warranty on the part of a restaurant-keeper, under the exact state of facts presented here, still, in the absence of evidence, as disclosed by the findings just quoted, from which the trial court could arrive at any conclusion as to the measure of damages, we are of the opinion that the trial court was helpless to do anything other than to enter judgment in favor of defendant, as was done in this case:
Judgment and order affirmed.
Concurrence Opinion
We concur in the judgment for the reason that, in the absence of any showing of negligence, the only ground upon which defendant can possibly be held liable is that of an implied warranty of the purity and quality of the food dispensed by it. The only implied warranty that might be invoked as applicable to the transaction, under the law of California, is that declared in section 1775 of the Civil Code, which applies alone to "one who makes a business of selling provisions for domestic use." The complaint does not allege, and the facts do not show, that the defendant was engaged in the business of selling provisions for "domestic use," or that the transaction in question was a sale for "domestic use." The defendant *580 is a restaurant-keeper, who dispenses food to be consumed by customers in his place of business, and such was the transaction here complained of. Under a strict and accurate definition, the term "domestic use" does not apply to such sales.
The statute in question, as well as the common-law doctrine on which it is based, lays down a severe rule, which makes the dealer responsible for the consequence of any deleterious quality in his wares, no matter how free from negligence or fault he may be. It ought not to be extended, by judicial implication or construction, beyond its strict legal meaning. If it be said that it is unreasonable to distinguish between a sale of food by a restaurant-keeper to be consumed on his own premises and the sale of food by a dealer to be taken home and eaten in the domestic environment of the purchaser, the answer must be found in the maxim ita lex scripta est; and one shown to be free from negligence, as was the case here, ought not to be held liable on an implied warranty, unless he is clearly within the letter and meaning of the law as written.
