Page:Harvard Law Review Volume 32.djvu/107

73 NOTES 73 tion by the plaintiff of the defendant's absolute liability was made, but in a few recent cases the contention was made and denied.^* The Massachusetts Supreme Court,^^ and the Appellate Division of the New York Supreme Court ^^ however, have recently upheld it, and with good reason. 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. The facts of the Massachusetts case suggest the inquiry, how far does the obviousness of the injurious character of food affect the de- fendant's liability. The plaintiff ordered baked 'beans. When the food was served, she noticed two or three dark or black objects almost as big as beans. She thought they were hard baked beans, without prelimi- nary testing she "bit down hard on them" and broke two teeth. It is evident that recoverable damages for breach of warranty cannot in- clude consequences that reasonably should have been avoided,^'' and whether the observed peculiarities of food served or purchased are such as to make consiunption of it unreasonable may present a question of fact to be decided by the jury.^^ An interesting decision to compare with the Massachusetts case just referred to, was handed down by the same court on the same day,^^ deciding adversely to the plaintiff an action of tort alleging negligence. It appeared that a small tack in a piece of blueberry pie served by the defendant had lodged in the throat of the plaintiff, but because of her inability to prove that the defendant was negligent, the decision of the lower court in favor of the plaintiff was set aside. The principle of res ipsa loquitur was held inapplicable, the tack being so small that it " Valeri V. Pullman Co., 218 Fed. 519 (1914); Merrill v. Hodson, 88 Conn. 314, 91 Atl. 533 (1914); Travis v. Louisville, etc. R. Co., 183 Ala. 415, 62 So. 851 (1913); Sheffer v. WiUoughby, 163 111. 518, 45 N. E. 253 (1896). 1* Friend v. Child's Dining Hall Co. (Sup. Jud. Ct. Mass., October, 1918). ler V. Child's Co., 171 N. Y. Supp. 541 (1918); Barrington v. Hotel Astor, 171 N. Y. Supp. 840 (1918). The first of these cases was decided before the determination by the Court of Appeals of Race v. Krum, 222 N. Y. 410, 118 N. E. 853 (1918). That case involved the liability of a druggist for serving bad ice cream of his own manufacture, and the court, without intimating what its decision would be in case of an innkeeper or restaurant-keeper who did not "make or prepare" the food in question, expressly stated that its decision did not necessarily control such a case. In the later decisions of the Appellate Division, however, a restaurant-keeper and an innkeeper were held liable. In Muller v. Child's Co., the qualification in Race v. Krum was not noted, and in Barrington v. Hotel Astor, it was said that the hotel "prepared" the dish of kidney saute which was in question. " WiLLisTON, Sales, § 614, note 31. '* The Massachusetts decision admits that the question is one of fact. See also Sloan V. F. W. Woolworth Co., 193 111. App. 620, 625 (1915). " Ash V. Child's Dining Hall Co. (Sup. Jud. Ct. Mass., October, 1918).
 * ® Leahy v. Essex Co., 164 N. Y. App. Div. 903, 148 N. Y. Supp. 1063 (1914); Mid-