6 Div. 759.
October 29, 1931. Rehearing Denied November 19, 1931.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
B. F. Smith, of Birmingham, for appellant.
Proof by one eating unwholesome food at a public restaurant of the fact of eating the food and of subsequent sickness is not sufficient to make a prima facie case in his favor against the restaurant keeper, nor to shift the burden upon the latter to establish due care. It was therefore error to refuse the affirmative charge requested by appellant. Sheffer v. Willoughby, 163 Ill. 518, 45 N.E. 253, 34 L.R.A. 464, 54 Am. St. Rep. 483. Mere speculation and conjecture will not support a verdict. Charges 8, 9, and 3 should have been given at appellant's request. American Cast Iron Pipe Co. v. Landrum, 183 Ala. 132, 62 So. 757; Golson v. W. F. Covington Mfg. Co., 205 Ala. 226, 87 So. 439, 442; Gadsden Gen. Hospital v. Bishop, 209 Ala. 272, 96 So. 145; Ætna Exp. Co. v. Schaeffer, 209 Ala. 77, 95 So. 351; Birmingham Elec. Co. v. Guess, 222 Ala. 280, 131 So. 883. The proprietor of a restaurant is not required to buy the most expensive or latest model equipment in the operation of his business, when that in use is reasonably safe and suitable for the purposes used. Appellant's charges "h" and "k" should have been given. Caldwell-Watson F. M. Co. v. Watson, 183 Ala. 326, 62 So. 859; Prattville C. M. Co. v. McKinney, 178 Ala. 554, 59 So. 498; Richmond D. R. Co. v. Weems, 97 Ala. 270, 12 So. 186; Wiita v. Interstate Iron Co., 103 Minn. 303, 115 N.W. 169, 16 L.R.A. (N.S.) 133; Louisville N. R. Co. v. Allen's Adm'r, 78 Ala. 494; Propst v. Ga. Pac. R. Co., 83 Ala. 518, 3 So. 764; Herren v. Tuscaloosa Waterworks Co. (Ala. Sup.) 40 So. 55. Appellant was entitled, on cross-examination of appellee's witness Little, to question the witness regarding the way in which appellant's restaurant had been conducted at and prior to the time complained of. Stoudemire v. Davis, 208 Ala. 495, 94 So. 498; American Nat. Ins. Co. v. Rains, 215 Ala. 378, 110 So. 606; Sovereign Camp, W. O. W. v. Hutchinson, 217 Ala. 71, 114 So. 684. It was error to allow questions as to the working of negroes in appellant's kitchen, being a matter calculated to engender race prejudice. Loeb v. Webster, 213 Ala. 99, 104 So. 25; Tannehill v. State, 159 Ala. 51, 48 So. 662. Where counsel indulges in statements not in evidence, calculated to engender passion, prejudice, and bias in the minds of the jury, the same are grounds for a new trial, when the action of the court is lacking in import to purge the minds of the jury of such passion. prejudice, and bias so engendered. Birmingham Ry., L. P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann. Cas. 1914C, 1037; Wolffe v. Minnis, 74 Ala. 386; Sullivan v. State, 66 Ala. 48; Cross v. State, 68 Ala. 476; Florence Cotton Iron Co. v. Field, 104 Ala. 471. 16 So. 538; Tannehill v. State, 159 Ala. 51. 48 So. 662; Berry v. State, 10 Ga. 511; East Tennessee, V. G. v. Carloss, 77 Ala. 443; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Anderson v. State, 209 Ala. 36, 95 So. 171; Ala. I. F. Co. v. Benenante, 11 Ala. App. 644, 66 So. 942; Scott v. State, 110 Ala. 48, 20 So. 468; Craven v. State, 22 Ala. App. 39, 111 So. 767; Moulton v. State, 199 Ala. 411, 74 So. 454.
Altman Koenig, of Birmingham, for appellee.
The operator of a public restaurant is under the duty to use due care to see that the food served his guests is fit and may be eaten without causing sickness on account of its unwholesomeness, and he is liable for any damages proximately resulting to a guest by reason of his negligence to observe such duty. Travis v. L. N. R. Co., 183 Ala. 415, 62 So. 851; Pantaze v. West, 7 Ala. App. 599, 61 So. 42; George's Restaurant v. Dukes, 216 Ala. 239, 113 So. 53. Where there is evidence to support plaintiff's cause of action, the question is for the jury. Southern States Fire Ins. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63; Allen v. Fincher, 187 Ala. 599, 65 So. 946; Birmingham Belt R. Co. v. Nelson, 216 Ala. 149, 112 So. 422. Even though defendant be willing to have a charge stated in terms less favorable than is due, it is not the business of the court to give to the jury any instruction except in the correct and appropriate terms of the law. Birmingham Belt R. Co. v. Nelson, supra; Cain v. Skillin, 219 Ala. 228, 121 So. 521, 64 A.L.R. 1022; Hammond Motor Co. v. Acker, 219 Ala. 291, 122 So. 173. Improper statements of counsel which were provoked or produced by statements or remarks by opposing counsel are not grounds for reversal. Tea Java Coffee Co. v. Saxon China Co., 207 Ala. 33, 91 So. 885; Hanners v. State, 147 Ala. 27, 41 So. 973; Hauger Co. v. Abramson, 215 Ala. 174, 110 So. 152; Clark-Pratt C. M. Co. v. Bailey, 201 Ala. 333, 77 So. 995. A mere objection to already spoken words does not reach the evil aimed at; the court must be appealed to to exclude the statements from consideration of the jury, failing which there is nothing presented for review. Kansas City, M. B. R. Co. v. Webb, 97 Ala. 157, 11 So. 888; Lunsford v. Dietrich, 93 Ala. 565, 9 So. 308, 30 Am. St. Rep. 79; Birmingham Ry., Light Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann. Cas. 1916A, 543; Nashville, C. St. L. R. Co. v. Crosby, 183 Ala. 237, 62 So. 889.
The action is to recover damages for personal injuries for alleged negligence of the proprietors of a public café, or their employees, acting within the line and scope of employment, in serving to a customer food unfit for human consumption, from which plaintiff was made sick.
The first insistence of appellant is that a case of negligence was not made out; that defendant was due the affirmative charge.
In some jurisdictions it is declared that in serving food at a public eating house there is an implied warranty that it is fit for the uses for which it is prepared and sold. This is but the adoption of the general rule in the sale of articles for definite uses. In other jurisdictions the doctrine of implied warranty is not applied. 26 C. J. p. 786, § 95.
In this state a limited warranty is recognized, viz.: That the food served is of the class generally accepted as fit for human consumption, and that in the selection and preparation of same the keeper has exercised the degree of care enjoined by law.
This degree of care is defined in the following carefully chosen words: "The law requires that, in the selection of the food for his restaurant and in cooking it for his customers, he shall exercise that same degree of care which a reasonably prudent man, skilled in the art of selecting and preparing food for human consumption, would be expected to exercise in the selection and preparation of food for his own private table." Travis v. L. N. R. Co., 183 Ala. 415, 424, 62 So. 851, 854; Id., 192 Ala. 453, 68 So. 342.
Negligence in actions of tort is the failure to observe this degree of care. Travis v. L. N. R. Co., supra.
In Sheffer v. Willoughby, 163 Ill. 518, 45 N.E. 253, 34 L.R.A. 464, 54 Am. St. Rep. 483, cited as authority in the Travis Case above, proof that plaintiff ate the food and in consequence became sick was held not to make out a prima facie case of negligence, nor shift the burden to defendant.
In view of the many things, other than unfitness of the food, such as time, place, quantity, state of health, feelings, physical or mental, personal idiosyncrasy or intolerance to particular foods, etc., which may cause sickness in consequence of the eating, we are not disposed to question the rule so stated. Negligence, or breach of duty, is not to be presumed.
The fact that sickness followed and circumstances tending to show it was the result of taking the food supplied are elements of the case proper to be proven. Greenwood Café v. Lovinggood, supra.
In the case before us, evidence for plaintiff tended to show she was served an order including fish, fried red snapper; that she ate a portion; that ill effects were felt promptly, and developed into a sickness having the symptoms of ptomaine poisoning, and so diagnosed by the attending physician who testifies as a professional witness. Her testimony is to the further effect that the fish did not taste right, and, after taking some three bites, she desisted eating, and discovered the fish had an unpleasant odor. Some discoloration is also indicated in her testimony. Other evidence negatived any idiosyncrasy as to fish.
There is evidence that spoiled fish may be readily detected by the senses of sight, touch, and smell. Fish, it appears, degenerates quickly, especially when taken out of refrigeration. Spoiled fish, it further appears, is the more hazardous as food because of the danger of ptomaine poison therefrom.
Reasonable care in the preservation and preparation of fish as a food takes into account all these factors.
Suffice to say the evidence made a case for the jury on the issue of negligence and injury as a proximate consequence.
Defendant's evidence tended to show due care in the procurement, preservation, and preparation of fish served as food. With much detail the method of handling red snapper fish from the time they are taken in the waters of the Gulf to the time they are served in the café was gone into.
Beginning, for present purposes, with the purchase of the day's supply in question from a responsible dealer after inspection by the health authorities, and their further inspection when received by defendant, it appears the fish were kept in an ice box packed in ice, until called for in the kitchen. Plaintiff, in the course of cross-examination, raised the question of the fitness of this ice box as compared with a "modern" mechanical refrigeration plant. It appeared this metal lined ice box had been in use for more than five years.
Defendant's refused charge (h) reads: "The Court charges the jury that it is not negligence as a matter of law for the operator of a restaurant to use a refrigerator or ice-box for a period of more than five years, if said refrigerator or ice-box is reasonably safe and suitable for the purpose for which it is used."
This charge was correct.
The court, however, gave charge (j) as follows: "The Court charges the jury that reasonable care in the conduct of his business imposed by law on the operator of a restaurant, does not require that he purchase and install the latest model of machinery and equipment, his duty in that respect being performed by the installment and use of equipment reasonably safe for the conduct of his business."
This and other similar given charges covered the principle of charge (h), and it was refused without error.
But refused charge (k) goes further. It reads: "The Court charges the jury that it was not negligence on the part of the defendant, that he failed to purchase and install in the operation of his business a mechanical refrigeration plant."
This is in effect an affirmative instruction. If correct, it would eliminate the use of the ice box as an issue on the question of negligence vel non.
We find no evidence that the ice box was not suitable and safe for the keeping of fish for daily use in the restaurant. To the contrary, without conflict, it is shown to be the method generally used and approved by the health authorities of the city; that fish packed in ice in this way will keep for days; that shipments are made in barrels packed with ice, etc.
Defendant was entitled to have the suitableness of the ice box and of the necessity to install a mechanical refrigerator eliminated as an issue before the jury. Refusal of charge (k) was error.
Defendant's charges 8, 9, and 3 were properly refused. That plaintiff's illness "could" have resulted from other causes than fish poisoning was not the issue. "Could" in such connection may import a mere possibility.
Did the evidence reasonably satisfy the jury that the sickness in fact resulted from fish poisoning? was the inquiry on this point.
The offer of defendant to show by the witness Little his observations with reference to food at this place on prior occasions was refused without error. Greenwood Café v. Lovinggood, supra.
The plaintiff was entitled to call out evidence touching the personnel of employees having to do with keeping and cooking of fish, the character of their labor or service. In this connection, if it appeared negroes were employed in positions requiring vigilance and care for the safety of customers, this was subject to comment by counsel in argument.
But we do not approve the argument of counsel made the basis of ground 69 of the motion for a new trial. Although challenged by opposing counsel to point out wherein there was negligence, this did not warrant going out of the record to refer to unemployed white people; to refer to white girls wanting to work as waiters; and to say they were being employed all over the country. The criticism directed at defendant in this way is of the class often condemned, and needs no further comment.
The objection to the argument was sustained, and defendant made no motion to have it withdrawn, nor to have the jury properly admonished and instructed by the court. A party who invokes no further action by the court, thereby indicating his satisfaction, cannot complain of the court's failure to do what he was not asked to do. Whether this case is within the exception to the above rule, namely, a case calling for a new trial on the ground of ineradicable injury, the necessities of the case do not require us to decide. We have thus written by way of caution to attorneys in the conduct of causes.
Several rulings presented by appellant may not recur on another trial. Some are obviously without merit. None seem to involve other than well-defined rules of law, and the opinion need not be further extended.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.