Mrs. Julia Swingler, on the afternoon of May 30, 1936, ordered a crab sandwich and a glass of beer in a restaurant operated by the Childs Dining Hall Company at Charles and Fayette Streets, Baltimore, Maryland, which were served at a table in the restaurant. She had eaten all of the sandwich but a small piece of bread but, when she attempted to eat that, she bit down on a piece of tin an eighth of an inch wide and three-eighths or a half an inch long, which was imbedded in it. When she bit down on it, it became wedged between two of her teeth, it was removed with difficulty, an abcessed condition developed, and the tooth was extracted. In consequence of the injury she suffered considerably from pain and shock. To recover for those injuries she brought this action. The trial resulted in a verdict and judgment in her favor, and from that judgment the defendant appealed.
The original declaration sounded in tort and was based on the defendant's negligence. Later an amended declaration alleging an express warranty was filed, and at the trial, to meet the proof, a second amended declaration alleging an implied warranty was filed. Demurrers to both amended declarations were overruled.
At the conclusion of the whole case the defendant offered this demurrer prayer: "The Court instructs the jury that on the whole case there is no legally sufficient evidence to entitle the plaintiff to recover against the defendant and the verdict of the jury must, therefore, be for the defendant," which was refused. It also asked the court to instruct the jury by its D prayer that furnishing food to a customer by a restaurant keeper is not a sale, and that there is no implied warranty as to the "quality of the food," and by its 1 prayer that in such a case there is no implied warranty of either the quality or the fitness of the food. By its 2 prayer, also refused, it asked for an instruction that the burden of proof was upon the plaintiff to prove by a preponderance of the *Page 507 evidence "any warranty" respecting the "quality or fitness" of the food served. Its Z prayer also refused related to the measure of damages.
Plaintiff's first and only granted prayer was based upon the hypothesis that when defendant sold the sandwich to the plaintiff it "impliedly warranted" that it was fit for human consumption.
The only exception found in the record relates to these rulings and to the court's instruction as to the measure of damages.
Defendant's 1 and 2 prayers were properly refused because they prescribed too high a standard of proof. Its Z, or damage, prayer was also properly refused because it limited the recoverable damages too narrowly. Code, art. 83, sec. 90, subsec. (6). The substantial question in the case is whether one who conducts a public eating place impliedly warrants to customers to whom he sells food to be consumed on the premises that it is fit to eat, or whether he merely furnishes services and is answerable only for a failure to exercise reasonable care in the performance of that service. That question is raised by the refusal of defendant's D prayer and the granting of plaintiff's first prayer.
Defendant's demurrer prayer made no reference to the pleadings, so that, if the evidence was legally sufficient to permit a recovery on any ground irrespective of the pleadings, it was properly refused, Brady v. Brady, 110 Md. 656, 659, 73 A. 567;Brager v. Friedenwald, 128 Md. 8, 29, 97 A. 515; Balto. O.R.Co. v. Walsh, 142 Md. 230, 237, 120 A. 715; Maryland ApartmentHouse Co. v. Glenn, 108 Md. 377, 385, 70 A. 216. So that the question which it raises is whether upon all the evidence in the case the plaintiff was entitled to recover, either for a breach of warranty or for negligence.
There are therefore two questions in the case, one, whether a restaurant keeper who furnishes for profit food to a patron to be consumed on the premises is liable for harm caused to the patron by some noxious quality or defect in the food, on the theory that the transaction *Page 508 constituted a sale with an implied warranty of fitness, or on the theory that such a transaction is not a sale of goods but a hiring of service, and that the restaurant keeper is only liable for a failure to exercise ordinary care to see that the food is fit to eat. The second question is, whether, if the transaction was one of service, negligence may be inferred from the fact that the food was noxious or otherwise dangerous to human health, in other words, whether the doctrine of res ipsa loquitur is applicable.
The consideration of both theories has to some extent been affected by a humane solicitude for the plight of that legendary person, the poor boarding house keeper, who might be financially ruined by the fortuitous appearance in food furnished a patron of matter in which the processes of decay have gone too far, or of some alien substance such as broken glass, or a shell, a pebble, a splinter of wood, or a button.
Consequently the authorities are not at all in harmony as to whether the transaction is a sale or a hiring. The cases which hold that it is a sale for the most part emphasize the protection of the public, those which hold that it is a service emphasize the protection of the boarding house or restaurant keeper. And, while that distinction is a late flowering of the ancient judicial device of assuming a fiction as a predicate to escape the harshness of a literal application of the common law, it has this practical effect. If the transaction is a sale, then under the Uniform Sales Act the restaurant keeper who knows that the food is sold to be eaten impliedly warrants that it is fit to eat. If it is not fit to eat and harm is caused thereby, he is liable, so that in such a case the plaintiff need only prove the sale, the noxious or harmful character of the food, and that he suffered harm thereby. The literal application of that principle would in effect make the restaurant keeper a guarantor of the wholesomeness of the food he sells, and some judges and some courts have felt that it imposes too severe a burden on one who has exercised reasonable care and prudence and *Page 509 diligence in the selection and preparation of the food he sells. It is true that he could avoid liability by giving notice to patrons that he did not warrant the quality of the food sold. But, if he announced that "The management makes no representation as to the fitness or wholesomeness of the food sold in this restaurant and patrons will consume the same at their risk," while the announcement would truly state the rule approved by the majority, it might and probably would have a depressing effect on his business, and the remedy might prove to be quite as bad as the disease.
On the other hand, if the transaction is held to be one of service, the patron who does not buy the raw material, and happily knows nothing of its preparation, manifestly could rarely if ever prove what he must prove to recover for harm caused by the bad food, that the restaurant keeper or his employees were guilty of negligence in inspecting, purchasing, or preparing it, unless negligence may be inferred from the mere fact that the food is dangerous to human health.
In truth, the transaction embraces elements both of sale and service, just as countless other transactions involving the furnishing of goods do. In so far as the actual goods are concerned it would seem to be a sale, since the patron may wholly consume the food which he orders. In so far as setting the table, cooking the food, and placing it on the table in appropriate dishes, it is one of service. If one buys an oil burner, or a radio, or a kitchen range, to be installed, it could not well be denied that the transaction is a sale, although service furnished by the vendor makes the goods sold available for use. So, if one buys a sandwich to be taken out of a restaurant, it seems well settled that the transaction is a sale, but, if he buys it to eat at a table in a restaurant, there are cases which hold that it is not a sale but a service. In other words, under that theory, if one is poisoned by bad food which he takes out of the restaurant, he may recover because he may rely upon the implied assurance that it is fit to eat, but, if he is poisoned *Page 510 by bad food that he buys in a cafeteria and carries to a table himself in dishes which he has in part selected, it is not a sale and he may be poisoned with impunity. That distinction seems to me too filmy and tenuous for the rough usage of actual life in a practical world. A sale is defined in the Uniform Sales Act, Code, art. 83, sec. 22, as "an agreement whereby the seller transfers the property in goods to the buyer for a consideration."
Whether a transaction in which a victualler furnishes food to a patron is a sale within that definition is differently answered by two of the leading legal compendiums. By one it is said: "Food served in eating house. There is also held to arise an implied warranty of fitness for human consumption in the cases of food served to a guest in an eating house, although the food served has been kept in air-tight casings, but other jurisdictions refuse to apply this rule, especially in the case of canned goods, founded historically on the notion that an inn keeper does not sell but utters provisions, and that it is the service that is predominant while the passing of title is merely incidental so that there is no sale." 55 C.J. 766. On the other hand, it is stated in 23 R.C.L. 1203: "The common transaction between an inn keeper or a restaurant keeper and his customer under which the latter is furnished with food to consume on the premises is not a sale."
One of the earliest expressions on the subject is found inParker v. Flint, 12 Mod. 255, 88 Eng. Rep. 1303, in a remark by Wright, Serjeant, that an "inn keeper does not sell but utters provisions." That thesis was elaborated in Merrill v. Hodson,88 Conn. 314, 91 A. 533, where, by a highly artificial process of reasoning, the court reached the conclusion that the sale of food by a restaurant keeper is not a sale of goods at all, that the patron gets no title to the food until he has eaten it, because, it is said, the customer pays not for food but for the right to satisfy his appetite. The English court in Parker v. Flint,supra, used the expression quoted in determining whether a statute directing that constables *Page 511 should quarter soldiers "upon inn keepers * * *" applied to one who kept merely a boarding house, and was, as pointed out inFriend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 409, not regarded in England as inconsistent with the rule that an inn keeper warrants that food furnished his customers is wholesome.
It is true that in many cases the statement is loosely made that the customer does not become the owner of the food served him in a restaurant, 23 R.C.L. 1203, note 5; Ann. Cas. 1916 D, 917; L.R.A. 1915 B, 481, but that statement appears to lack substance and reality.
Where an inn keeper furnishes food merely as an incident of a general contract to board and lodge, the food which the patron does not consume may well be said to belong to the inn keeper, because his contract is only to supply the patron with such food as he needs or desires, but, where the patron orders specific articles of food and pays for them, it is inconsistent with both common sense and the realities of the situation to say that he does not own them. Professor Williston throws doubt on the analogy of the two cases when he says: "Whether this analogy holds good in a restaurant where a customer pays not for a meal, but for a definite portion of food, may perhaps be questioned. May not one who secures and pays for a piece of pie at an `automat' or luncheon spa take it from the plate and walk off with it without wrong? Whether or not because the transaction has been held not to be a sale, it has generally been assumed that the liability of a restaurant keeper is based only on willful fault or negligence, and many cases have been brought on this assumption. In most of them no contention was made by the plaintiff that the defendant was absolutely liable as a warrantor, but in a few recent cases the claim was made on behalf of the plaintiff and denied by the court. The Massachusetts Supreme Court and the Appellate Division of the New York Supreme Court, however, have recently upheld such a claim, and with good reason." Williston on Sales, sec. 242 b. See also, Vold onSales, ch. 6, sec. 153, p. 477. It would seem incredible that one *Page 512 who ordered in a restaurant a sandwich to be served at a table, but after it was served changed his mind and took it away with him, could be convicted of larceny, if he had in fact paid for it, and yet, if he did not own it, that would be the logical result.
In Friend v. Childs Dining Hall Co., supra, Chief Justice Rugg, speaking for the court in holding that such a transaction amounted to a sale and warranty, said: "It would be an incongruity in the law amounting at least to an inconsistency to hold with reference to many keepers of restaurants who conduct the business both of supplying food to guests and of putting up lunches to be carried elsewhere and not eaten on the premises, that, in case of want of wholesomeness, there is liability to the purchaser of a lunch to be carried away founded on an implied condition of the contract, but that liability to the guest who eats a lunch at a table on the premises rests solely on negligence. The guest of a keeper of an eating house or inn keeper is quite as helpless to protect himself against deleterious food or drink as is the purchaser of a fowl of a provision dealer. The opportunity for the inn keeper or restaurant keeper, who prepares and serves food to his guest, to discover and provide against deleterious food, is at least as ample as is that of the retail dealer in foodstuffs. The evil consequences in the one case are of the same general character as in the other. Both concern the health and physical comfort and safety of human beings. On principle and on authority it seems to us that the liability of the proprietor of an eating house to his guest for serving bad food rests on an implied term of the contract and does not sound exclusively in tort, although of course he may be held for negligence if that is proved. * * * Even if there were no common law authority (which there is, as already pointed out), it would not be practicable to establish a distinction upon this point which could be supported in reason, 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. *Page 513 Every argument which supports liability of the former tends to sustain liability of the latter with at least equal cogency. They appear to us to rest upon the same footing in principle."
And in the course of the same opinion it is said:
"It is ancient law that when one resorts to a tavern, inn or eating place, there for a consideration to be served with food for immediate consumption, and is received as a guest by the keeper, a duty is implied that the food shall be fit to eat. It has been said that: `If a man goes into a tavern for refreshment, and corrupt drink or meat is there sold to him, which occasions his sickness, an action clearly lies against the tavern keeper; * * * an action lies against him without express warranty for it is a warranty in law.' Keilw. 91, [72 Eng. Reprint, 254]; Burnby v.Bollett, 16 M. W. 644, 646, 647, 654 [153 Eng. Reprint, 1348], where are the references to numerous older cases. `A taverner or vintner was bound as such to sell wholesome food and drink.'Ames, Lectures on Legal History, p. 137, citing also cases from the Year Books. `If a man sells victuals which is corrupt without warranty an action lies, because it is against the Commonwealth.Rosevel v. Vaughan, Cro. Jac. 196, 197 [79 Eng. Reprint, 171]. To the same effect in substance, are 1 Rolle, Abr. 95, 1Fitzherbert's Natura Brevium, 94 C, note, supposed to be by Lord Chief Justice Hale, 1 Blackstone's Com. 430, and 3Blackstone's Com. 166. See Williston on Sales, sec. 241, note 82; Farrell v. Manhattan Market Co., 198 Mass. 271,84 N.E. 481. The relation between guest and host in a public house is one of contract. It seemingly is the result of those early authorities that it was an implied term or condition of that contract that the food and drink furnished should not be harmful, but appropriate for eating. * * * The historical review, the principles discussed and the ground of decision in Frost v.Aylesbury Dairy Co. (1905) 1 K.B. 608, 613, 614, (although that case arose under the Sales of Goods Act), affords basis for the conclusion that it has continued to be the law of England to the present. At *Page 514 all events there is nothing to indicate that this common law rule was changed in England before the emigration of our ancestors to the new world."
In Temple v. Keeler, 238 N.Y. 344, 144 N.E. 635, 35 A.L.R. 920, it was said: "We have not before held that the owner of a restaurant sells the food which he provides for his guests. Indeed, in Race v. Krum, 222 N.Y. 410, 118 N.E. 853, we refused to pass upon the precise question as not then before us. Yet we cannot logically differentiate the facts there involved from those in the case at bar. Miss Temple enters a restaurant, orders a portion of fish which the jury might find was unwholesome, receives it, eats it, pays for it, and later becomes ill, it may be inferred, as the result. Mr. Race enters a drug store, orders a portion of ice cream which was unwholesome, receives it, eats it, pays for it, and later becomes ill as a result. This, we said, was a sale. * * * Apart, however, from Race v. Krum, we would still be compelled to reach the same result by an authoritative decision. Even in construing a criminal statute we have held that a hotel keeper who places before his guests at dinner partridge sells the birds, although the guests paid a total sum for board and lodging. People v. Clair, 221 N.Y. 108,116 N.E. 868."
In Cushing v. Rodman, (1936) 65 App. D.C. 258, 82 F.2d 864, 868, 104 A.L.R. 1028, the Court of Appeals of the District of Columbia, in an exhaustive review of the decisions adopting the contract theory of liability, as well as those supporting the tort theory, announced that: "As to the general question, we think the better view is that which bases liability upon breach of an implied warranty, rather than upon negligence only. At the outset we think it unnecessary to rest the choice on the answer to the somewhat narrow question whether or not there can be said to be, in the technical sense, a sale of the food. As has been well said in 1 Williston on Sales, (2nd Ed. 1924), sec. 242b, p. 486: `Even though the transaction is not a sale, every argument for implying a warranty in the sale of food is applicable with even greater force to the *Page 515 serving of food to a guest or customer at an inn or restaurant. The basis of implied warranty is justifiable reliance on the judgment or skill of the warrantor, and to charge the seller of an unopened can of food for the consequences of the inferiority of the contents of the can, and to hold free from liability a restaurant keeper who opens the can on his premises and serves its contents to a customer, would be a strange inconsistency. A sale is not the only transaction in which a warranty may be implied.'" Other cases in point are collected in the annotations to the cases reported in the volumes of the A.L.R. citedsupra, and in 50 A.L.R. 231, 98 A.L.R. 687.
In Stanfield v. Woolworth Co., (1936) 143 Kan. 117, 53 P.2d 878, 881, the court, in adopting the warrantial theory of liability after an elaborate review of the English, Irish, and American cases, pointed out that it had been repeatedly held that a restaurant keeper who furnished liquor to patrons with their meals, the price of the meal covering the cost of the liquor, violated a statute prohibiting the sale of liquor (State v.Lotti, 72 Vt. 115, 47 A. 392; State v. Wenzel, 72 N.H. 396,56 A. 918; Lauer v. District of Columbia, 11 App. D.C. 453), that furnishing filthy, decomposed, or adulterated food at meals violated a statute forbidding the sale of such food (State v.Grays Harbor Commercial Co., 124 Wn. 227, 214 P. 13), that furnishing oleomargerine as a substitute for butter at a meal in a public restaurant was a sale (Comm. v. Miller, 131 Pa. 118, 18 A. 938), that serving quail to patrons of an eating place was an "exposing for sale" in violation of a statute forbidding the sale of quail. Comm. v. Phoenix Hotel Co., 157 Ky. 180, 162 S.W. 823. Commenting on these cases, the court added: "By what reason can it be said that furnishing, as a part of a meal, articles the sale of which is prohibited constitutes a sale of such articles, but other articles furnished as a part of the meal were not sold?"
In Koplin v. Liggett Co. (1935) 119 Pa. Super. 529,181 A. 381, an action for injuries resulting from serving *Page 516 to a patron in a restaurant soup containing a centipede, the court said, referring to Nock v. Coca Cola Bottling Works,102 Pa. Super. 515, 156 A. 537: "The action was of a mixed character, containing elements of tort and contract, wherein we said: `We think the sounder reasoning is in support of the theory that a sale of food or beverage impliedly warrants that it shall be free of a foreign matter which may be injurious to the well-being of the consumer. Nor do we see any just reason, from a public policy standpoint, as the health or human life may be involved, why a sale of food or beverage intended for human consumption should not carry with it an implied warranty that it is suitable and wholesome.'" See, also, Schuler v. Union News Co., Mass.,4 N.E.2d 465; Goetten v. Owl Drug Co., 6 Cal.2d 683,59 P.2d 142.
There are no doubt many cases opposed to the warrantial theory of liability, in perhaps a majority of American jurisdictions, although that is by no means clear, but the reasoning in those cases which support that theory rests upon what seems to be a firmer and sounder basis, are more consistent with natural reason, more in accord with the requirements of any rational public policy, and more consonant with the historical development of the remedy than the reasoning in those cases which deny that theory.
To say that a restaurant keeper who delivers a sandwich, or some other similar portion of food, to a patron who pays for it, when the restaurant keeper knows that the purchaser intends to eat it, makes no representation that it is fit to eat, if it is to be eaten in the restaurant, but does make such a representation if it is to be taken out of the restaurant, seems absurd. The very fact that the restaurant keeper is in business is in itself a representation that he offers for sale food that is fit to eat. He has it in his power to see that the food is fit to eat, he buys the raw material, he employs the servants who prepare it, he selects the place in which it is prepared, he supervises and controls all the steps, instrumentalities, and agents employed in supplying the customer's demand *Page 517 for wholesome food. The customer neither knows nor can know anything of the food or its preparation until it is before him, and in many cases not then until he eats it.
For those reasons the plaintiff's first prayer was in my judgment properly granted, the defendant's C and D prayers properly refused, and the demurrer to the second amended declaration overruled.
In addition to the facts stated above, there was testimony offered by the defendant that the bread served the plaintiff was bought from the Ward Baking Company, wrapped and sliced, and served as received. It did not appear that there was any particular inspection of it.
Assuming that the remedy was in tort, the fact that a piece of tin one-eighth of an inch wide and one-half an inch long was found in a slice of bread furnished the customer was evidence of negligence in the preparation of the sandwich sufficient to take the case to a jury. The docrine of res ipsa loquitur would seem to have no application to such a case, for that doctrine only applies where harm is caused by the aberration or condition of some object which could not have occurred but for the abnormal or irregular functioning of some agency or instrumentality within the exclusive control of the defendant, but where the particular abnormality or defect which caused the aberration is unknown. In this case defendant used and handled the bread to prepare the sandwich. Tin is no more palatable, and no safer, in bread than pins were in Ryan v. Progressive Grocery Stores, 255 N.Y. 388,175 N.E. 105. The defendant selected the bread for the sandwich, and it may reasonably be inferred that had it exercised reasonable care in handling and inspecting it, that it would have discovered the tin. The tin caused the harm. So that the cause of the harm and the reason for it are known; that is, it is known how it occurred and why it occurred.
Therefore there was evidence of negligence, and, as defendant's demurrer prayer went to the whole case and did not refer to the pleadings, it was properly refused, whether defendant's liability was in tort or in contract. *Page 518
A majority of the court have, however, taken the position that defendant's liability is in tort and not in contract, and, since the plaintiff's prayer was based upon the warrantial theory, logically they have decided that the judgment must be reversed. I have been unable to accept that conclusion, and have filed this memorandum to explain the reason for my dissent, and I am authorized to say that Judge Urner concurs in the view here expressed.