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Court of Appeal, First District, Division 4, California.

MEXICALI ROSE et al., Petitioners, v. The SUPERIOR COURT of the State of California and County of Alameda, Respondent; Jack CLARK, Real Party in Interest.

No. A046104.

Decided: September 25, 1989

John Caudle, Scott Bovee, Kincaid, Gianunzio, Caudle & Hubert, Oakland, for petitioners. William L. Berg, Oakland, for real party in interest.

Petitioners seek a writ of mandate to require respondent court to sustain their demurrer.   We conclude that the demurrer should have been sustained.

The complaint against petitioners alleges in relevant substance as follows:  Petitioners own and operate a Mexican restaurant.   One of the items they serve is chicken enchiladas which are prepared by removing the chicken bones, rolling the chicken filling in a tortilla and covering the dish with sauce.   The chicken enchilada which real party ate in petitioners' restaurant contained a one-inch chicken bone which petitioners had negligently left in the food.   Plaintiff Jack Clark, real party in interest herein, did not know the chicken bone was in the enchilada or that chicken bones were ever in enchiladas.   He was seriously injured when the bone lodged in his throat.

Based on the above allegations, real party filed an action for damages based on theories of strict liability, negligence and breach of implied warranty.   In addition, he sought punitive damages based on petitioners' response to the emergency occasioned when the bone lodged in his throat.   Petitioners demurred to the complaint citing Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674, 59 P.2d 144 in which our Supreme Court held that a plaintiff who swallowed a chicken bone concealed in a chicken pie could not recover on either a theory of negligence or a theory of breach of implied warranty.   At the hearing on the demurrer, respondent court stated that the Mix case, which is over 50 years old, does not express the state of the law at this time.   The demurrer was overruled and the instant petition followed.   Compelled by stare decisis, we agree with petitioners that their demurrer should have been sustained.

In Mix, the first issue considered by the Supreme Court was whether the doctrine of implied warranty attaches in a transaction between a restaurant keeper and a guest.   The court held unequivocally that “there exists an implied warranty which imposes upon the restaurant keeper the obligation to furnish to patrons food ‘reasonably fit’ for human consumption, and that if a patron suffer injury as a result of eating food which is not reasonably fit for human consumption, the restaurant keeper is liable in damages therefor.”   (Mix v. Ingersoll Candy Co., supra, 6 Cal.2d at p. 680, 59 P.2d 144.)   In another case decided the same day, the court held that under the doctrine of implied warranty a restaurant patron could recover when injured by glass in an order of chow mein.  (Goetten v. Owl Drug Co. (1936) 6 Cal.2d 683, 59 P.2d 142.)   However, in the Mix case the court held that a food which contains a bone natural to the type of meat served cannot be considered defective under this doctrine:  “Although it may frequently be a question for a jury as the trier of facts to determine whether or not the particular defect alleged rendered the food not reasonably fit for human consumption, yet certain cases present facts from which the court itself may say as a matter of law that the alleged defect does not fall within the terms of the statute.   It is insisted that the court may so determine herein only if it is empowered to take judicial notice of the alleged fact that chicken pies usually contain chicken bones.   It is not necessary to go so far as to hold that chicken pies usually contain chicken bones.   It is sufficient if it may be said that as a matter of common knowledge chicken pies occasionally contain chicken bones.   We have no hesitancy in so holding, and we are of the opinion that despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption.   Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones.   At least he cannot hold the restaurant keeper whose representation implied by law is that the meat dish is reasonably fit for human consumption, liable for any injury occurring as a result of the presence of a chicken bone in such chicken pie.   In the case of Goetten v. Owl Drug Co., L.A. No. 15624 (post, p. 683 [59 Pac. (2d) 142] ), this day decided, we held that the application of the rule of implied warranty might impose a heavy burden upon the keeper of restaurants and lunch counters, but that considerations of public policy and public health and safety are of such importance as to demand that such obligation be imposed.   This is true, but we do not believe that the onerous rule should be carried to absurd limits.   Certainly no liability would attach to a restaurant keeper for the serving of a T-bone steak, or a beef stew, which contained a bone natural to the type of meat served, or if a fish dish should contain a fish bone, or if a cherry pie should contain a cherry stone—although it be admitted that an ideal cherry pie would be stoneless.   The case of a chicken bone in a chicken pie is, in our opinion, analogous to the cited examples, and the facts set forth in the first count of the complaint do not state a cause of action.”  (Mix v. Ingersoll Candy Co., supra, 6 Cal.2d at pp. 681–682, 59 P.2d 144.)

The court then went on to discuss the cause of action based upon negligence and explained:  “With reference to the count based upon negligence, the same logic and reasoning apply.   The facts pleaded do not establish a lack of due care on the part of the restaurant keeper.   We do not believe it is a question of contributory negligence on the part of the customer, but a question of whether or not a restaurant keeper in the exercise of due care is required to serve in every instance a perfect chicken pie, in that all bones are entirely eliminated.   If the customer has no right to expect such a perfect product, and we think he is not so entitled, then it cannot be said that it was negligence on the part of the restaurant keeper to fail to furnish an entirely boneless chicken pie.   The facts set forth in the second count do not, therefore, state a cause of action.”  (Mix v. Ingersoll Candy Co., supra, at pp. 682–683, 59 P.2d 144.)

The Mix case was applied in Silva v. F.W. Woolworth Co. (1938) 28 Cal.App.2d 649, 83 P.2d 76.   In that case, the plaintiff was injured when a small bone lodged in her throat when she ate a plate of roast turkey with dressing and vegetables despite the fact that the bone was concealed in the dressing.   Similarly, the court in Shapiro v. Hotel Statler Corporation (S.D.Cal.1955) 132 F.Supp. 891, 893, applied Mix to a situation in which a patron was injured by a fish bone in a dish of seafood mornay.  (See also Lamb v. Hill (1952) 112 Cal.App.2d 41, 245 P.2d 316.)

Real party first attempts to distinguish his case from Mix on the facts.   He points out that the chicken bone causing his injuries was substantially larger than the bone in Mix, that the damages he suffered were greater, that a chicken enchilada is a foreign meal.   In addition, he points out that unlike the Mix plaintiff, he pled that petitioners attempted to remove all chicken bones from their enchiladas, that it is not common knowledge that chicken bones are in chicken enchiladas and that he did not know there were ever chicken bones in enchiladas.   None of these differences affect the application of stare decisis in this case.   The rule of the Mix case is that a dish containing a bone natural to the food served is not a defective dish regardless of whether negligence was used in its preparation and irrespective of the size of the bone or the damages it caused.

Next real party contends that decisions of the Supreme Court subsequent to Mix reveal significant changes in the law—changes affecting resolution of a case involving a bone natural to the food in question.   Real party cites Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, to support his argument that subsequent case law would dictate a different decision in Mix today.   In Rowland, the Supreme Court discarded the trespasser-licensee-invitee classification to determine the duty owed by landowners and held that all negligence actions by these groups should be evaluated under the fundamental principle that a person is liable for injuries caused by his failure to exercise reasonable care.  “A departure from this fundamental principle involves the balancing of a number of considerations;  the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”   (Id., at pp. 112–113, 70 Cal.Rptr. 97, 443 P.2d 561.)

It is possible the Mix case with its general rule regarding food containing a bone natural to the dish was a departure from the fundamental negligence principles that would no longer be countenanced by the Supreme Court or, as discussed below, is inconsistent with the developing principles of strict liability.   However, trial courts and lower appellate courts in California are bound to follow the decisions of the California Supreme Court.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455–456, 20 Cal.Rptr. 321, 369 P.2d 937.)   This is true even where there is tension between the rationale of a Supreme Court case and subsequent case law.  (Kiick v. Levias (1980) 113 Cal.App.3d 399, 406, 169 Cal.Rptr. 859.)

We note that our colleagues in the Second District in Evart v. Suli (1989) 211 Cal.App.3d 605, 259 Cal.Rptr. 535 have recently distinguished Mix in a situation where a plaintiff broke a tooth when she bit into a piece of bone in a hamburger.   The Evart court interpreted Mix as applying only in situations where it can be said that it is a matter of common knowledge that the food in question occasionally contains the substance which caused injury.   The court then explained that it was not “prepared to state that it is a matter of common knowledge that hamburgers contain pieces of beef bone large enough to cause injury to a consumer.”  (Id., at p. 611, 259 Cal.Rptr. 535.)   The court then went on to distinguish the facts of Mix and those in the examples therein cited on the basis that none involved food products put through a grinder.

We question the Evart court's narrow reading of Mix.1  Although the Mix court explained its holding by referring to the common knowledge that “chicken pies occasionally contain chicken bones,” the rule it appears to announce is that a dish is not defective if it contains bones which are natural to the type of meat served.2  In any event, our case is not distinguishable on its facts from Mix.

Let a peremptory writ issue directing respondent court to vacate its order overruling petitioners' demurrer and to enter a new order sustaining that demurrer.

I concur fully but I write separately to stress my concern with the present state of the chicken bone law.   In the recently decided case of Evart v. Suli (1989) 211 Cal.App.3d 605, 259 Cal.Rptr. 535, which our Supreme Court has declined to hear or alternatively to depublish (FO11269, petn. for review den. Aug. 31, 1989) my colleagues in the second district have valiantly preserved a cause of action for a consumer injured by a piece of beef bone inside a hamburger patty.   They have done so by reading Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674, 59 P.2d 144, to impose a two-prong test for liability.   As the Evart court reads Mix the injured consumer who bites into prepared food and encounters a substance natural to that food can state a cause of action only if he can also show that it was not common knowledge that such prepared food might contain such an item and that it was an injury which he could not have reasonably guarded against.  (Evart v. Suli, supra, 211 Cal.App.3d at pp. 611, 613, 259 Cal.Rptr. 535.)

We might have attempted to follow the lead of the Evart decision and inquire here whether it is a matter of common knowledge that chicken enchiladas might contain bones.   Then we would also have been required to pose the additional question of whether bones in chicken enchiladas are a risk against which the enchilada consumer can reasonably guard.   To do so, following the lead of Evart, we then inquire if enchiladas are normally eaten out of hand or with a knife and fork.  (Presumably, armed with these implements, the prudent consumer is expected to dissect all prepared food so that he can “reasonably guard” against injury from hidden bones.)

Apart from the intellectual thrill of chasing an analysis over such legal fences to achieve the laudable goal of capturing a cause of action for the injured eater, such analysis is silly.   There is no sensible distinction to be drawn between chicken bones in chicken enchiladas and chicken bones in chicken pies, unless we begin speculating on whether the reasonable man expects chicken in one to be shredded and chicken in the other to be cut.   The problem here is not a lack of distinguishing facts.   The problem is that Mix is wrongly decided in light of the modern law of products liability.   That case is ripe for reconsideration by our Supreme Court.   Until and unless that occurs I will explain to my luncheon companions why for sound legal reasons they should order a hamburger and pass up the chicken enchiladas.


1.   We concede that the Supreme Court's refusal to grant review and/or to order Evart depublished does lend support to appellants' position that the holding of Mix is, indeed, narrower than explained therein.

2.   Mix has generally been perceived as announcing a “foreign-natural” test.   This test is not applied in all jurisdictions.   Other jurisdictions apply a “reasonable expectations” test.  (See, e.g., Zabner v. Howard Johnson's Incorporated (Fla.1967) 201 So.2d 824;  Morrison's Cafeteria of Montgomery v. Haddox (Ala.Civ.App.1983) 431 So.2d 979.)   The court in Matthews v. Campbell Soup Company (S.D.Tex.1974) 380 F.Supp. 1061, 1063, described the Mix case as “apparently” the case in which the “foreign-natural” doctrine “first emerged.”   The court viewed the Mix rationale as probably the majority view but concluded that the “reasonable expectations” test is more compatible and consistent with the Restatement definition of “reasonably dangerous” in section 402A than is the “foreign-natural” test.  (Id., at p. 1065;  see Rest.2d Torts, § 402A.)   The pivotal issue in the “reasonable expectations” test is whether the consumer can reasonably expect the object to be present in the food as served, not what might be natural to the ingredients of the product prior to preparation.   Naturalness of the object is important only in determining whether a consumer should reasonably expect to find such a object in the particular food product.  (See Zabner v. Howard Johnson's Incorporated, supra, 201 So.2d 824, 826.)

ANDERSON, Presiding Justice.

PERLEY, J., concurs.