Prinsen v. Russos
215 N.W. 905
Wis.
1927
Check Treatment
Eschweiler, J.

Thе evidence discloses that plaintiff, her husband, and their friends Mrs. and Miss Talbert, while on an automobile tour, entered defendant’s restaurant. As they were leaving, their attention was attracted by a ham there displayed, and suggestion was made about obtaining some sandwiches with the ham to be consumed on their way. Plaintiff’s husband declined to take any. Miss Talbert was somewhat insistent, and plaintiff then said that she, plaintiff, was not hungry but would not be the one to say not to have it or break up the party. Plaintiff’s husband then offеred to pay for the sandwiches, but Miss Talbert refused to permit that and made the purchase of three ham sandwiches. That the plaintiff, Mrs. and Miss Talbert ate of the sаndwichés and later that same night all three became violently ill. The condition of plaintiff was much the severest and she suffered greatly and was ill for a long time thereafter.

Uncontradicted medical testimony disclosed that the plaintiff contracted the disease of trichinosis and that such could not have been from anything othеr than infected pork.

The testimony on behalf of defendant was to the effect that the ham in question was properly and thoroughly cooked, and it was undisputed that trichinae-infected pork, when properly cooked or thoroughly subjected to 137 degrees Fahrenheit or more, will be sterilized and the parasites killed. *145The case was submitted to the jury, without protest in that regard by the plaintiff, upon the theory of possible negligence by defendant in preparing the ham for ‍‌​​‌‌​‌​​​​‌​‌​‌‌‌​‌​‌​‌‌​‌‌‌‌‌​​‌​‌‌​​‌​‌​‌‌‌‌​‍human consumption and in permitting it to be delivered to the plaintiff and her party in an unwholesome condition. Upon such theory the action is one in tort.

The ground here asserted as a basis for recovery by plaintiff, conceding for the present that the question can be now entertained, is upon the theory that there was, by the sale оf the sandwiches in question, an implied warranty by the defendant, as seller, that such were wholesome and fit for human consumption. This is contended for either upon general common-law doctrine or in reliance upon the Uniform Sales Law, sub. (1), sec. 121.15, Stats., providing that where the seller knows of the particular purpose for whiсh goods are required and it appears the buyer relies upon the seller’s skill and judgment, there is raised an implied warranty that the goods shall be reasonably fit for such purpose.

To assert a right, however, based upon a breach of warranty, express or implied, it is necessary that the required elements of a contrаct be present. The express language of the statute above cited and here invoked by plaintiff makes the rule there declared applicablе as between buyer and seller, and manifestly is not intended to create a liability of the seller towards any person outside of such so defined and limited contractual relatiоnship. The words “buyer” and “seller” connote a relationship and obligations created by contract, as distinguished from obligations imposed by law. Unless there be privity of contract the general rule is that there is no liability for a breach of the contract to outsiders. Peterson v. Gales, 191 Wis. 137, 142, 210 N. W. 407, so holding as to an abstract of title. So it is held in a line ‍‌​​‌‌​‌​​​​‌​‌​‌‌‌​‌​‌​‌‌​‌‌‌‌‌​​‌​‌‌​​‌​‌​‌‌‌‌​‍of сases, particularly applicable and controlling here, such as Pelletier v. Dupont, 124 Me. 269, 128 Atl. 186, 39 A. L. R. *146972, a sale of bread in which was found a pin, the holding being that there can be no liability of the manufacturer to the remote consumer in such a situation; that there can be no implied warranty without privity of contract; and that warranties as to such pеrsonal property do not run.with the article sold; and Newhall v. Ward Baking Co. 240 Mass. 434, 134 N. E. 625, where a piece of a nail was found in a loaf of bread purchased by the plaintiff from the retail dealer who purchased from defendant, the manufacturer, the court saying that as there was no contract between plaintiff and defendant there could bе no liability based, on any implied warranty. Page 436.

There is to be found a sharp conflict in the recent authorities on the proposition whether or not such prоvision of the Uniform Sales Law above quoted, or the general common-law doctrine concerning the subject matter of sales, applies to that which comes under the general name of food for immediate consumption, and we shall refer to but a few of such cases in view of the disposition made of this prеsent case and which makes it unnecessary for us to now determine or declare which line of such authorities we shall adopt and follow.

In Smith v. Gerrish, 256 Mass. 183 (May, 1926), 152 N. E. 318, the plaintiff, who pаid for the meal, was furnished with tainted cold-storage mackerel and the action was expressly brought for breach of an implied warranty, and it was held that the prоvision of the Uniform Sales Act, similar to our statute above quoted, ‍‌​​‌‌​‌​​​​‌​‌​‌‌‌​‌​‌​‌‌​‌‌‌‌‌​​‌​‌‌​​‌​‌​‌‌‌‌​‍applied, that service of food for immediate consumption on the premises is a salе and carries an implied warranty of fitness for consumption. It was likewise so held in an action between a retailer and a wholesale dealer of milk árid crеam in Graustein v. Wyman, 250 Mass. 290, 296, 145 N. E. 450, and in Barringer v. Ocean S. S. Co. 240 Mass. 405, 134 N. E. 265, in which an action was brought on the contract between plaint*147iff, a passenger, and the defendant steamship company where he was made sick by diseased food served on the vessel.

In the oft cited case of Friend v. Childs Dining Hall Co. 231 Mass. 65, 70, 120 N. E. 407, 5 A. L. R. 1100, there is a full discussion of the subject, and it held that under the common law of England there was an implied condition of the contract that a guest should be furnished wholesome food by the proprietor of a public eating house. In Temple v. Keeler, 238 N. Y. 344, 144 N. E. 635, 35 A. L. R. 920, action was brought upon contract by a customer reсeiving and paying for food at a restaurant where unwholesome fish ‍‌​​‌‌​‌​​​​‌​‌​‌‌‌​‌​‌​‌‌​‌‌‌‌‌​​‌​‌‌​​‌​‌​‌‌‌‌​‍was served, and such a situation was held to be within the scope of such a statute and that there was a sale rather than service.

In Heise v. Gillette, 83 Ind. App. 551, 149 N. E. 182, there was a purchase and consumption by the plaintiff of a chicken sandwich containing unwholesome ingredients, and thеre it was also held that such was a sale and carried with it an implied warranty. So, also, in Greenwood v. John R. Thompson Co. 213 Ill. App. 371.

But the other view is taken in Kenney v. Wong Len, 81 N. H. 427, 128 Atl. 343 (January, 1925), an action brought to recover for sickness and nervous shock rеsulting from the plaintiff customer at defendant’s restaurant being served with chicken, the dressing whereof was garnished with the corpse of a mouse, and it was held, after full.discussion of many authorities, that the relationship between restaurant keeper and customer is one of service and not of sale and there is therefore no implied warranty, and that recovery can be had in such situation only upon a showing of negligence. So, also, in Nisky v. Childs Co. (N. J., January, 1927) 135 Atl. 805, where a restaurant patron was made ill from bеing served with a tainted oyster, it was held that neither under the common-law doctrine nor by the Uniform Sales Act was there, as to such transaction, a sale or any *148implied warranty, and that liability in such cases ‍‌​​‌‌​‌​​​​‌​‌​‌‌‌​‌​‌​‌‌​‌‌‌‌‌​​‌​‌‌​​‌​‌​‌‌‌‌​‍could be predicated upon negligence alone.

Under the testimony here there was no sale to plaintiff by defendаnt of the food in question. There could, therefore, no liability arise on the doctrine of implied warranty in such a transaction if that doctrine were to be held the law here.

The case was properly submitted to the jury on the theory of negligence and in line with such negligence as that involving the sale of diseased sausagе in Haley v. Swift Co. 152 Wis. 570, 140 N. W. 293, note in 17 A. L. R. p. 688, where privity of contract need not exist. The jury having found against the plaintiff, no contention is made here that such finding can be properly overthrоwn. The situation presented by the record here was one where it could not be said as a matter of law either that the defendant was or was not negligent. It prеsented a case for the weighing by the jurors of the testimony on behalf of plaintiff tending to exclude all other possible sources of the infection which she reсeived and that for the defendant as to due care and attention, and is similar to that in Gracey v. Waldorf System, Inc. 251 Mass. 76, 146 N. E. 232. See, also, reported case and note in 47 A. L. R. 146, 148, where will be found an interesting collection of such cases involving the finding of foreign substances in food, including such as cockroaches, mice, centipedes, and suspender straps in beverages, a snake and a fragment of a human toe in chewing tobacco, etc.

By the Court. — Judgment affirmed.