The complaint alleges that the defendant operates a hotel and dining room, that it served the plaintiff with food in its dining room which it impliedly warranted to be wholesome and fit for human consumption, that in fact the food was not wholesome and the plaintiff became ill as a result of eating it. The defendant demurred to the complaint upon the ground, in substance, that the furnishing of food to the plaintiff did not involve a sale of the food, and that there was no implied warranty by the defendant that it was fit for human consumption. The court sustained the demurrer, and the correctness of that ruling is the sole question upon this appeal.
This precise question was before us in the case ofMerrill v. Hodson, 88 Conn. 314, 91 A. 533, in which we held that the furnishing of food by a restaurant keeper to a guest for immediate consumption upon the premises did not involve a sale of the food so furnished, and that there was no implied warranty that it was fit and wholesome. The plaintiff earnestly urges upon us a reexamination of the question in the light of more recent decisions, some of which have declined to follow the reasoning in that case.
As was stated in the Merrill case, we know of no case prior to that in which an attempt had been made to recover for the harmful consequences resulting from unwholesome food or drink, supplied by the keeper of an inn or restaurant, upon the strength of an implied *Page 130 warranty of quality. Such occurrences are not uncommon, and it is perhaps not without significance that recovery was uniformly sought in actions sounding in tort. That recovery can be had based upon negligence in the preparation and service of food and drink in a hotel or restaurant is not questioned. In such an action it has generally been held that the duty of the keeper of a hotel or restaurant is to exercise the same degree of care in the selection and preparation of food as would be exercised by a reasonably prudent man skilled in such art. He is not an insurer of the quality of the food served by him, but is liable only if he has failed to exercise the degree of care required of him in its preparation and service. Sheffer v. Willoughby,163 Ill. 518, 45 N.E. 253; Travis v. Louisville N. R. Co., 183 Ala. 415, 62 So. 851; Ash v. ChildsDining Hall Co., 231 Mass. 86, 120 N.E. 396; Horn Hardart Baking Co. v. Lieber, 25 F.2d 449; Beale, Innkeepers, §§ 169, 302; 26 C. J. 786; 11 Rawle C. L. 1119.
It is the contention of the plaintiff that in addition to the liability in tort there exists in such cases a liability in contract arising out of an implied warranty of the wholesomeness of the food furnished, which in effect constitutes the defendant an insurer of the quality of the food. This contention is based primarily upon the assumption that the transaction constitutes a sale of the food supplied, and the well recognized rule that, in the case of the sale of food for immediate domestic uses, there arises, as between dealer and the buyer-consumer, an implied warranty of wholesomeness and fitness to be eaten. Burkhardt v. Armour Co., 115 Conn. 249, 259, 161 A. 385; General Statutes, § 4635.
There is no occasion to elaborate upon the discussion in the well reasoned opinion of CHIEF JUSTICE PRENTICE *Page 131 in Merrill v. Hodson. The opinion clearly draws the distinction between a sale of personal property which contemplates a transfer of title to a specific article, and the furnishing of food and drink in a restaurant when the "essence of the transaction is service in the satisfaction of a human need or desire." The business of a hotel or restaurant is not that of a dealer in commodities. The food in the ice box is not kept there for sale, but to be cooked, if required, and served to the guests of the establishment as ordered. The only thing that is "sold" is the personal service rendered in the preparation and presentation of the food, the various essentials to its comfortable consumption or other facilities provided, and the privilege of consuming so much of the meal ordered as the guest may desire. Service is the predominant feature of the transaction. If there is a transfer of title to the food actually consumed, it is merely incidental and does not constitute a sale of goods within the contemplation of the Sales Act, and there is therefore no implied warranty of its quality under the law of sales. Kenney v.Wong Len, 81 N. H. 427, 128 A. 343; Nisky v. ChildsCo., 103 N.J.L. 464, 135 A. 805; Loucks v. Morley,39 Cal. App. 570, 179 P. 529; Valeri v. Pullman Co., 218 F. 519. See annotations in 5 A. L. R. 1115; 35 A. L. R. 921; 50 A. L. R. 231, and cases there cited.
There are no doubt instances where food is furnished to be eaten upon the premises in which the business of the establishment is not that of an innkeeper or restaurant where the transaction partakes of the nature of a sale, as when a drug store sells sandwiches, or other articles of food, which may be either taken away or eaten on the premises. In Race v. Krum, 222 N.Y. 410,118 N.E. 853, the plaintiff became ill after eating ice cream served in defendant's drug store, and brought suit for breach of an implied warranty that the ice *Page 132 cream was fit for consumption. The court pointed out that the case was not one involving the liability of the keeper of a hotel or restaurant, and held the defendant liable under the rule that in sales by a retail dealer of articles of food for immediate use there is an implied warranty of wholesomeness. In the later case ofTemple v. Keeler, 238 N.Y. 344, 144 N.E. 635, the court, in a brief opinion, extended the doctrine of Race v. Krum to a case in which the plaintiff became ill after eating fish served in defendant's restaurant, stating that it could not logically differentiate the facts in the two cases. A similar conclusion was reached in Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, in which it was held by a divided court that there was no distinction between the liability of a retail dealer in meat for immediate consumption and of a victualer who serves food to guests to be eaten forthwith at his own table. Conceding, in that case, that the larger number of decisions hold that the liability of a restaurant keeper for furnishing deleterious food rests upon negligence, the Massachusetts court on the same day handed down the decision in Ash v. Childs Dining HallCo., supra, an action in tort against the same defendant, in which it held that the duty resting upon the keeper of a restaurant or other eating place was "to use due care to furnish wholesome food, fit to eat." The fundamental question is the extent of the duty owed by the restaurant keeper to his guest — whether it is to use due care to furnish wholesome food, as has always been held in actions in tort, or is practically that of an insurer, as the New York and Massachusetts cases hold when the action is in contract, upon the theory that the transaction is a sale. It would seem that the legal obligation ought not to vary with the form of action adopted. The innkeeper's duty to use due care to furnish wholesome food to his guests should *Page 133 not be extended to that of an insurer upon the theory, contrary to the fact, that the business in which he is engaged is that of selling meats, vegetables and other foods within the terms of the Sales Act.
Regardless of whether or not the transaction is a sale, it is said that, upon grounds of public policy, courts should hold the innkeeper and the restaurant keeper to warrant the wholesomeness of the food which they serve — that his opportunity to discover and provide against deleterious food is as ample as is that of a retail dealer in food stuffs, and that he should be held to the same liability. We are not prepared to say that the protection of the public requires the imposition upon the innkeeper of absolute liability for the quality of the food served by him, contrary to the long-established rule that his obligation is limited to the exercise of due care in the preparation and service of the food furnished to his guests.
There is no error.
In this opinion MALTBIE, C. J., HINMAN and AVERY, Js., concurred.