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District Court of Appeal, Fourth District, California.


Civ. 1180.

Decided: September 27, 1935

Fred A. Steiner and W. W. B. Seymour, both of San Diego, for appellant. Sanders & Jacques, of San Diego, for respondents.

This is an appeal from a judgment entered after the trial court had sustained a general and special demurrer without leave to amend. The complaint is in two counts, and the sole question necessary for our consideration is whether either or both of these counts state a cause of action.

We may summarize the allegations of the first cause of action as follows: That the Ingersoll Candy Company was and is a corporation, and that at all times material to this action the defendant Beck was its manager, agent, and employee and operated for the corporation a confectionery shop and restaurant for the general public; that on December 17, 1934, plaintiff entered this restaurant, seated himself at a table, purchased and paid for an article of food known as chicken pie; that it was served to him by an employee of defendants and there eaten by plaintiff; that the chicken pie was not fit for human consumption as it contained, concealed therein, a sharp-pointed fragment of chicken bone; that this fact should have been known to defendants; that in eating the chicken pie plaintiff unknowingly swallowed the fragment of chicken bone; that in serving and delivering the chicken pie to plaintiff defendants represented and warranted to him that it was fit and proper for human consumption and free from harmful, dangerous, or injurious substances; that this warranty was breached in the manner already indicated. Plaintiff sought to recover general damages in the sum of $10,000 and special damages for medical and surgical services and hospital treatment and care in the sum of $565.

The facts alleged in the second cause of action closely follow those of the first, except that the allegation that defendants represented and warranted the chicken pie to be fit for human consumption and free from harmful, dangerous, or injurious substances, is omitted and in its place is substituted an allegation in general terms of the negligence of defendants in preparing the chicken pie and placing therein the sharp fragment of chicken bone which lodged in plaintiff's throat and caused his injury and the resulting damage.

It is evident that the first count attempts to state a cause of action for breach of the implied warranty established by the following portion of section 1735 of the Civil Code as enacted in 1931 (St. 1931, p. 2239, § 1): “Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.”

In determining whether the provisions just quoted apply to the facts pleaded in the first cause of action, two principal questions present themselves: (1) Was there a sale of the chicken pie by defendants to plaintiff? (2) Did the plaintiff, by implication (it not being alleged that he expressly did so), make known to the defendants the particular purpose for which the chicken pie was required, and did he rely on their skill and judgment?

In support of the theory that a restaurant keeper does not sell the food which he serves his customer, defendants cite, among others, the following cases: Nisky v. Childs Co., 103 N. J. Law, 464, 135 A. 805, 806, 50 A. L. R. 227; Merrill v. Hodson, 88 Conn. 314, 91 A. 533, L. R. A. 1915B, 481, Ann. Cas. 1916D, 917; Travis v. Louisville & N. R. Co., 183 Ala. 415, 62 So. 851; Roseberry v. Wachter, 3 W. W. Harr. (Del.) 253, 138 A. 273; Kenney v. Wong Len, 81 N. H. 427, 128 A. 343; Bigelow v. Maine Cent. R. Co., 110 Me. 105, 85 A. 396, 43 L. R. A. (N. S.) 627. An examination of these cases will disclose that two of them are actions in tort and not in contract. It must be admitted, however, that there are many other cases supporting the contention of defendants.

The reason for the rule prevailing in those jurisdictions which refuse to recognize the furnishing of a meal to a customer in a restaurant as a sale, is set forth in Nisky v. Childs Co., supra, as follows: “From the earliest times, however, a distinction has been drawn between a sale of an article and the furnishing of food at an eating house, hotel or restaurant; the latter partaking rather of the character of service, in which case the standard of liability is the failure to use that reasonable care which the circumstances require. As was said many years ago in Parker v. Flint, reported in 12 Mod. 1303, ‘An innkeeper * * * does not sell but utters his provisions,’ and by Professor Beale in his treatise on Innkeepers, § 169, ‘As an innkeeper does not lease his room, he does not sell the food he supplies to his guests. It is his duty to supply such food as the guest needs, and the corresponding right of the guest to consume the food he needs and to take no more. Having finished his meal he has no right to take food from the table, even the uneaten portion of the food supplied him. Nor can he claim a certain portion of the food as his own to be handed over to another in case he chooses not to consume it himself.’

“The authorities distinguishing the transaction from a sale recognize that while the food served constitutes, of course, an essential part, yet serving it cannot be regarded as a sale of goods, and this we think the common understanding. A customer at an eating place seeks not to make a purchase but to be served with food to such reasonable extent as his present needs require. With the service go a place, more or less attractive, in which to eat it, a table, dishes, linen, silver, waiters, and sometimes music as an accompaniment, all tending to render more agreeable and palatable that which he eats. The food he obtains is then and there consumed; he does not eat the portion he can comfortably devour and place the remainder in his pockets or other receptacle, to be stored away for future needs. So one who purchases a steamship ticket, or one who registers at a hotel, does not conceive the transaction as a sale of goods when, as part of his passage in the one case, and as a guest in the other, he is supplied with meals; nor does one who enters a restaurant to be supplied with a meal or any portion thereof so regard the supplying of his food. This attitude of the public mind is indicated by the familiar signs, ‘Meals served here,’ ‘Dinners served here,’ and the like.”

One of the first cases holding that an action on an implied warranty may be maintained against the keeper of a restaurant by a customer who orders a meal for immediate consumption on the premises and finds it unfit for consumption is Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N. E. 407, 5 A. L. R. 1100. That court reached the conclusion that a sale of the food was consummated by the restaurateur, a dealer, and that, under the Massachusetts Sales Act (Stats. 1908, c. 237, § 15 (1), similar to section 1735, Civ. Code of Calif.), there is an implied warranty of the fitness of the food for human consumption. Authorities from many jurisdictions are cited, and the conclusion of the court seems to be based on sound reasoning. To the same effect are Barringer v. Ocean S. S. Co., 240 Mass. 405, 134 N. E. 265, and Smith v. Gerrish, 256 Mass. 183, 152 N. E. 318.

In New York the rule is the same. In Temple v. Keeler, 238 N. Y. 344, 144 N. E. 635, 35 A. L. R. 920, it is said: “We hold that, where a customer enters a restaurant, receives, eats, and pays for food, delivered to him on his order, the transaction is the purchase of goods. We hold also that under such circumstances the buyer does by implication make known to the vendor the particular purpose for which the article is required, and, where the buyer may assume that the vendor has had an opportunity to examine the article sold, it appears conclusively that he relies upon the latter's skill or judgment. Rinaldi v. Mohican Co., 225 N. Y. 70, 121 N. E. 471. Consequently there is an implied warranty that the food is reasonably fit for consumption.” See, also, Race v. Krum, 222 N. Y. 410, 118 N. E. 853, L. R. A. 1918F, 1172; Muller v. Childs Co., 185 App. Div. 881, 171 N. Y. S. 541, and Barrington v. Hotel Astor, 184 App. Div. 317, 171 N. Y. S. 840. The same rule prevails in Illinois, Greenwood v. John R. Thompson Co., 213 Ill. App. 371; in Missouri, Smith v. Carlos (Mo. App.) 247 S. W. 468; and in Indiana, Heise v. Gillette, 83 Ind. App. 551, 149 N. E. 182.

It has been held that serving certain articles of prohibited food or drink by a hotel or restaurant keeper to his guest as a part of a meal constitutes a sale. Intoxicating liquors, Commonwealth v. Worcester, 126 Mass. 256; State v. Lotti, 72 Vt. 115, 47 A. 392; poor quality milk, Commonwealth v. Warren, 160 Mass. 533, 36 N. E. 308; partridges out of season, People v. Clair, 221 N. Y. 108, 116 N. E. 868, L. R. A. 1917F, 766; quail, Commonwealth v. Phœnix Hotel Co., 157 Ky. 180, 162 S. W. 823; oleomargarine, Commonwealth v. Miller, 131 Pa. 118, 18 A. 938, 6 L. R. A. 633. Similar illustrations might be continued, but the foregoing sufficiently illustrate the point. If the delivery to a customer of certain articles of food or drink for immediate consumption as a part of a meal constitutes a sale of such articles, it is difficult to understand why the delivery of all of the articles of food and drink constituting a meal is not a sale.

Defendants maintain that it has been held and is the established law in California that when the owner of a restaurant furnishes food to a customer for a consideration he does not sell the food but merely furnishes service of which the food is a part. They cite Loucks v. Morley, 39 Cal. App. 570, 179 P. 529, 533, and Stell v. Townsends, etc., Inc., 138 Cal. App. (Supp.) 777, 28 P.(2d) 1077, in support of this contention.

In the main opinion in Loucks v. Morley, supra, written by Mr. Justice Thomas, the foregoing rule is stated. But it should be observed that the two associates of the learned author of the opinion only concurred in the judgment and clearly stated their reasons for so doing as follows: “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 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.” In the main opinion Mr. Justice Thomas reached the same conclusion for the reason that “domestic use” must be construed as use in the home. This single ground furnishes an ample and sound reason for the judgment of the court. As the opinion of the two justices concurring in the judgment set forth their reasons for so doing, this had the effect of withholding their approval to the other reasons for the affirmance of the judgment as set forth in the main opinion. Therefore, the argument of Mr. Justice Thomas that a restaurant owner does not sell the food comprising a meal consumed on the premises becomes, not only dicta, but the mere personal opinion of that eminent jurist in which his two colleagues declined to concur. Therefore, and for the further reason that section 1775 of the Civil Code was repealed (St. 1931, p. 2234) before the cause of action in the instant case arose, the portion of the opinion relied upon by defendants can have no controlling weight here.

The case of Stell v. Townsends, etc., Inc., supra, was decided by the appellate department of the superior court of the city and county of San Francisco. The action was in tort to recover damages suffered by plaintiff by reason of unwholesome food served her in the restaurant of defendant and consumed there. The appeal was from a judgment entered after the trial court granted defendant's motion for nonsuit. We agree with that court on the negligence phase of the case and believe the judgment was properly reversed. However, that court proceeded to consider the question of an implied warranty and reached the conclusion that the rule in this state is that “one serving food to be immediately consumed on the premises is not an insurer of the fitness or wholesomeness of the food served, nor is he chargeable with an implied covenant of warranty.” This conclusion was reached on what was said by Mr. Justice Thomas in the case of Loucks v. Morley, supra, but which was not concurred in by two of the justices of the District Court of Appeal. It is evident that the conclusion in the Stell Case is dicta and is not supported by the holding of a majority of the members of the court in the Loucks Case.

The remaining California case to which our attention has been called as bearing on the subject we are considering is San Francisco v. Larsen, 165 Cal. 179, 131 P. 366, 367. That action was for the recovery of a license tax imposed on defendant under an ordinance. The city charter then in effect exempted from paying a license tax “any person who at any fixed place of business in the city and county, sells or manufactures goods, wares or merchandise.” The Supreme Court said: “When we speak of a place where the business of selling or manufacturing goods, wares, or merchandise is carried on, we do not usually think of restaurants in that connection. One who mixes and cooks foodstuffs is engaged in the business of manufacturing goods, if we use the words according to their literal meaning, but, if we mention manufacturers, we should scarcely expect to be understood to refer to the keepers of restaurants. 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 food are mere minor incidents to the keeping of a restaurant. A restaurant is, primarily, a public eating place. It is not, primarily, or according to the ordinary habit of speech, a place where the business of manufacturing or selling goods, wares, or merchandise is carried on.” While the Supreme Court reached the conclusion that the place of business of a restaurant keeper was not exempt from the levy of a license tax under the charter provisions, it made the following pertinent remarks: “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.”

It is held without important exception that where foodstuffs are delivered by a dealer to a customer to be consumed away from the dealer's premises he may be held for a breach of an implied warranty that the food is reasonably fit for human consumption. It has also been held that one who consumes a dish of ice cream at a fountain may hold the proprietor for damages if it is unfit for human consumption. Numerous cases hold that if the same kind of ice cream is consumed as a part of a meal no recovery can be had. In his dissenting opinion in the case of Lynch v. Hotel Bond Co., 117 Conn. 128, 167 A. 99, 101, in discussing such a situation, Mr. Justice Haines made the following pertinent remarks: “It would seem that the reason for the ancient rule has passed with the conditions which brought it into existence. The citizen may well wonder at the intricacies of the law when told that he is protected in the purchase of ice cream at a drug store which he consumes upon the premises, using the facilities there provided, but may be poisoned and denied a remedy when he does exactly the same thing in a restaurant. He has just cause for doubting that ‘law is founded on reason.”’

We are of the opinion that the more logical rule governing this case and which should be adopted in California is that where the keeper of a restaurant, for a consideration, furnishes a meal to a customer to be consumed upon the premises, a sale of the food served is made and, under the provisions of section 1735 of the Civil Code which we have quoted, there is an implied warranty that the food is reasonably fit for human consumption. That the plaintiff made known to defendants, by implication, the purpose for which the chicken pie was required and that he relied upon their skill or judgment in preparing it, cannot be denied. In the recent case of Gindraux v. Maurice Mercantile Co. (Cal. Sup.) 47 P.(2d) 708, it was said: “The sale of the salami was made in the ordinary course of trade and business by a dealer in foodstuffs to the plaintiff for human consumption. The defendant therefore knew by implication the particular purpose for which the salami was required. From that fact there arose an implied warranty that the commodity was reasonably fit for such purpose. Civ. Code, § 1735, subd. 1; Consolidated Pipe Co. v. Gunn, 140 Cal. App. 412, 415, 35 P. (2d) 350.”

Defendants urge many other reasons why the first count does not state facts sufficient to constitute a cause of action against them. We have studied them all and do not consider it necessary to discuss any of them except one which properly falls under the second cause of action.

The second cause of action pleads negligence in general terms. This is all that is required under the law of this state. While it is not specifically alleged that the injuries of plaintiff were proximately caused by the negligence of defendants, this is necessarily implied from the facts alleged.

In Means v. Southern California Ry. Co., 144 Cal. 473, 77 P. 1001, 1002, 1 Ann. Cas. 206, it is said: “In order to constitute actionable negligence, there must exist three essential elements, namely, a duty or obligation which the defendant is under to protect the plaintiff from injury, a failure to discharge that duty, and injury resulting from the failure.”

When measured by this test, we are of the opinion that the second cause of action is a sufficient pleading. It cannot be doubted that a duty rests upon a keeper of a restaurant to serve his patrons wholesome food fit for human consumption and free from foreign substances that may cause injury to those consuming it. Stell v. Townsends, etc., Inc., 138 Cal. App. (Supp.) 777, 28 P.(2d) 1077, and cases cited. We have been cited to no cases to the contrary and defendants do not dispute the correctness of this rule. The failure to discharge this duty is sufficiently alleged or necessarily implied from the alleged facts. The resulting injury and damages sustained are also sufficiently alleged.

Defendants attack both causes of action upon grounds set forth in a portion of the opinion of the trial court which they quote as follows: “My stand has been definitely made in defense of the ‘chicken pie’, that it is a dish served with chicken bones, and that it is not negligence to serve it with chicken bones any more than it would be to serve beef stew with beef bones. A bone is an incident to the serving of most meats. The liability depends not upon the service under such circumstances, but the case turns upon the negligence in the consumer.”

Defendants maintain that we must take judicial notice that chicken pie contains chicken bones; that one eating a chicken pie must be held to know that it contains chicken bones and therefore must assume the risk of injury from a chicken bone; that it is contributory negligence for one to swallow a mouthful of chicken pie without first determining that it is free from dangerous slivers of chicken bone.

The writer of this opinion has partaken of chicken pie for upwards of fifty years. He has many times partaken of that succulent product of culinary perfection when no bones at all were encased within its crusts. Whether the presence of chicken bones in chicken pies is demanded by the recipes of the cookbooks I do not know. Of that of which I know nothing, I cannot take judicial notice. Bates v. Escondido Union High School District, 133 Cal. App. 725, 24 P.(2d) 884.

If we assume that the text and authority which govern the master of the kitchen require that he retain within the chicken pie the chicken bone, still we cannot assume that custom, rule, or duty requires him to have so well concealed within the chicken's meat a fragment of bone so sharp and jagged and detached from the original members that it would slip unknown into the throat of the unsuspecting consumer and there bury itself in those tender tissues to cause pain and suffering and damage of great degree.

It is presumed “that a person takes ordinary care of his own concerns.” Section 1963, Code Civ. Proc. It is therefore the duty of a court, in the absence of contrary pleading or proof, to assume that the consumer of a chicken pie took care to determine that there were no hidden and dangerous substances in that which he consumed; that he sufficiently masticated each mouthful of the food to satisfy himself as an ordinarily prudent person would do that it was safe to let it enter the inner orifices of his body. We cannot presume the plaintiff guilty of contributory negligence without the support of either pleading or proof.

The liability of defendant Beck under either or both of the counts, as distinguished from the liability of the defendant Ingersoll Candy Company, has not been considered in the briefs and seemingly was not presented to the trial court. This question has not been considered by us and should it be presented at a future time in a proper manner, nothing we have said should be construed as bearing on that question.

The judgment is reversed, with directions to the trial court to overrule the demurrer of defendants and permit them to answer within reasonable time.

MARKS, Justice.

We concur: BARNARD, P. J.; JENNINGS, J.

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