The appellee's evidence discloses that in July, 1944, she and a companion entered the "White House Cafe" owned and operated by the appellant, and ordered a meal consisting of two hamburgers each. The waitress who accepted *Page 582 this order then placed a glass of water at each of their places on the table at which they were seated. On drinking the water from her glass the appellee received therefrom and swallowed a piece of broken glass and an examination of the glass from which she drank disclosed that a broken piece of it was missing therefrom. On complaint being made by the appellee to the waitress the glass was removed and another containing water was substituted therefor. The appellee immediately consulted a physician who prescrbed for her the eating of certain foods, the purpose of which was to aid her in passing the glass. She passed the glass about a week thereafter, suffering in the meantime much pain; and blood attended the passing of the glass. The extent of the injury she received from swallowing this glass is not here material, for the reason that the amount of damages awarded her is not challenged by the appellant.
The only one of the appellant's assignments of error that requires a response from us is the one challenging an instruction for the appellee which charged the jury in appropriate language to find for her if they believed that she swallowed a piece of glass on the occasion and under the circumstances hereinbefore set forth "which was in or on said glass of water." The appellant's sole objection to this instruction is that he is liable to the appellee, if at all, solely on the ground of negligence. With this we are unable to concur. All of the authorities hold that the keeper of a public eating place must use due care to see that the food he serves his guests is fit for human consumption, and some of them, though a minority in number, hold further that he warrants the fitness for human consumption of the food and drink served by him for his guests. This conflict and the cases pro and con will appear from 36 C.J.S., Food, Sec. 61, p. 1109, and the authorities there cited; and 22 Am. Jur., Food, Section 101, and authorities there cited. The cases holding that there is no such implied warranty are based on the theory that the supplying of food to a guest for immediate consumption, by the keeper *Page 583 of a restaurant or inn does not constitute a sale thereof, or so much thereof as the guest appropriates, but that the whole transaction simply constitutes a service rendered by the keeper of the restaurant or inn to his guest. The cases holding the contrary are said by Mr. Williston to have been decided "with good reason" for "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 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." 2d Ed., Williston on Sales, vol. 1, Sec. 242b. With this we agree.
It is not clear from the evidence whether this broken glass was loose in the water when it was placed on the table by the waitress, or came from the broken place in the glass in which the water was served after it was placed on the table and either before or while the water was being drunk by the appellee, for in either case the result here would be the same. The basis of the implied warranty here under consideration is the justifiable reliance by the guest to whom the keeper of a restaurant serves food for immediate consumption, on his judgment or skill in preparing and serving the food. In order to enable the guest to conveniently consume this food on his premises the keeper of the restaurant of necessity, and in accordance with universal custom, must furnish his guest with tableware from and with which to eat and drink. All of the reasons which justify reliance by the guest on the quality of the food apply with equal force to a justification for reliance by him on the freedom of this tableware from deleterious substances that would get into his mouth while *Page 584 eating and drinking. To hold otherwise would result in an inconsistency and the application of a line of demarcation so shadowy in principle as not to be apparent to the mental vision.
This note of warning should probably be sounded. The appellee was not injured by something that was in and a part of the water in its natural state, but by a foreign substance swallowed by her when drinking the water; therefore, whether or not this implied warranty covers impure water in its natural state is not here presented, and no opinion is expressed thereon.
Affirmed.