The majority opinion is a clear and undoubtedly sound statement of the law in this State, as laid down in Merrill v. Hodson, supra. A conviction, however, that the principle underlying that decision should be reexamined and tested by modern conditions and the requirements of a sound public policy, prompts the following suggestions. That was the first case in this State where the question presented by this appeal was squarely raised, as was Friend v.Childs Dining Hall Co., in Massachusetts,231 Mass. 65, 120 N.E. 407. This court held that the furnishing of food by a restaurant keeper to a customer was an *Page 134 act of service only and not a sale of the food, any liability therefor sounding only in tort and not in contract, while the Massachusetts court held the contrary.
The principle adopted in the Merrill case was based upon the old English conception of the status of an inn or tavern keeper who furnished his guest with stabling, food and care for his horse, and rooms, bed, food and drink for the guest while he remained such. It was logical to treat this as service in its entirety, and to impose upon the innkeeper the obligation only of due care in rendering it, and he was generally paid a stipulated sum for such entertainment. The justification for the view that food and drink thus served was not sold, would seem to have largely disappeared with the radically changed conditions of modern life in this country.
One of the impressive trends of present day legislation is in the direction of protecting the consumer of food and drink, reflected in numerous laws heretofore nonexistent, requiring the dispenser to see to it that the articles he furnishes are not adulterated, deleterious or unwholesome. The consumer has little opportunity to protect himself and if one or the other is to suffer from the unwholesome character of the article dispensed, it should not be the consumer. He has requested and paid for a wholesome article and common fairness requires that he who receives the consideration should assume the risk, especially as the latter and not the consumer has the opportunity to determine the quality of the article.
This is the sound principle which underlies such cases as that of Burkhardt v. Armour Co., 115 Conn. 249,161 A. 385, where a grocer was so held in selling corned beef to a person to be used for food, even though the beef was in a sealed can when sold. Yet the Merrill case would require us to say that where *Page 135 corned beef was sold by a hotel or restaurant keeper for food, he does not guarantee its wholesomeness at all even though he have full opportunity to first inspect it to determine its quality. Such is the inconsistency and incongruity in the law which is brought about by adherence to a technical legal definition which makes this act of the hotel keeper a service while the act of the grocer is a sale. Thus a purchaser of ice cream at a drug store is protected by the dispenser's guaranty that the cream is wholesome, while in a purchase of ice cream at the restaurant next door, he obtains no guaranty of wholesomeness.
Many courts of last resort in this country have recognized that modern conditions and a sound public policy call for a rejection of this distinction. 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 find nowhere a better statement of what we conceive to be the modern doctrine than that in Friend v.Childs Dining Hall Co., supra, wherein that court, speaking by Chief Justice Rugg, says (p. 73): "The guest of the keeper of an eating house or of an innkeeper is quite as helpless to protect himself against deleterious food or drink as is the purchaser of a fowl from a provision dealer. The opportunity for an innkeeper or a 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 *Page 136 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. Every argument which supports liability of the former tends to sustain the liability of the latter with at least equal cogency. They appear to us to rest upon the same footing in principle."
This conclusion is consistently adhered to in Massachusetts and some other States, and is looked upon with favor in others. Friend v. Childs Dining Hall Co.,231 Mass. 65, 120 N.E. 407; Barringer v. Ocean S. S. Co.,240 Mass. 405, 134 N.E. 265; Gracey v. Waldorf System,Inc., 251 Mass. 76, 146 N.E. 232; Smith v. Gerrish,256 Mass. 183, 152 N.E. 318; Race v. Krum,222 N.Y. 410, 118 N.E. 853; Leahy v. Essex Co., 164 A.D. 903,148 N.Y.S. 1063; Muller v. Childs Co.,185 A.D. 881, 171 N.Y.S. 541; Temple v. Keeler,238 N.Y. 344, 144 N.E. 635; Barrington v. Hotel Astor,184 A.D. 317, 171 N.Y.S. 840; Greenwood v.Thompson Co., 213 Ill. App. 371; Heise v. Gillette,83 Ind. App. 551, 149 N.E. 182; Bark v. Dixson,115 Minn. 172, 131 N.W. 1078; Doyle v. Fuerst Kraemer, Ltd., 129 La. 838, 846, 56 So. 906; ClarkRestaurant Co. v. Simmons, 29 Ohio App. 220,163 N.E. 210. In Smith v. Carlos, 215 Mo. App. 488, 490, *Page 137 247 S.W. 468, it is said: "The trend of the times is to require eating houses to be as sanitary as possible, and to protect the public as far as can be by inspections, tests, etc. The importance of pure food to the public, and the inability of a guest to see or examine his food prior to its preparation and cooking, of necessity requires that one who holds himself out as a public furnisher of food and an expert in producing and preparing the same be held as an insurer against injury occasioned by a failure to furnish wholesome and pure food to eat."
"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 customers, would be a strange inconsistency." 1 Williston, Sales (2d Ed.) p. 485, § 242b. Similar reasoning is employed in an article in the Yale Law Journal, Vol. 27, p. 1068. This is precisely the position in which our contrasting decisions in Merrill v. Hodson and in Burkhardt v. Armour Co. leave the matter. For these reasons, it is my conviction that Merrill v. Hodson should be overruled and that the present decision should conform to the better reasoning and sounder public policy reflected in the authorities above cited. *Page 138