329 Mass. 641

December 1, 1952 - January 6, 1953

Suffolk County


Certain medical and other evidence warranted a finding of liability of the proprietor of a restaurant to a customer, who became ill about two hours after buying and eating an apple dumpling at the restaurant, for breach of an implied warranty under G. L. (Ter. Ed.) c. 106, Section 17 (1), that the dumpling was fit for human consumption, although there was no evidence that it looked or smelled or tasted bad.

CONTRACT OR TORT. Writ in the Municipal Court of the City of Boston dated April 27, 1951

The action was heard by Lewiton, J.

Michael Bloom, for the plaintiff.

Walter I. Badger, Jr., for the defendant.

LUMMUS, J. In a District Court the judge found for the plaintiff on a count for personal injury to the plaintiff resulting from eating an apple dumpling purchased from the defendant at its restaurant, which apple dumpling the defendant warranted to be fit for human consumption but which was unfit therefor. A physician who attended the plaintiff testified that she was suffering from food poisoning, caused by eating something within three hours before she became ill about half past two on the afternoon of October 3, 1950. She had eaten the apple dumpling shortly after half past twelve that afternoon. A man who boarded with the plaintiff testified that he had eaten with the plaintiff on the evening of October 2 and the morning of October 3, partaking of the same food consumed by the plaintiff, and had no ill effects. The physician testified that the food eaten by the plaintiff on or before the morning of October 3 could not have caused her illness. The judge denied a request by the defendant for a ruling that there was no evidence of breach of warranty by the defendant. The Appellate Division

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vacated the finding for the plaintiff, and ordered judgment for the defendant. The plaintiff appealed.

It was agreed that due notice of breach of warranty was given to the defendant within a reasonable time. G. L. (Ter. Ed.) c. 106, Section 38. Schuler v. Union News Co. 295 Mass. 350 , 354. By Section 17 (1) of that chapter "Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose." Under that section the service of food for immediate consumption on the premises is a sale and carries with it an implied warranty of fitness for consumption. Friend v. Childs Dining Hall Co. 231 Mass. 65 . Smith v. Gerrish, 256 Mass. 183 . Schuler v. Union News Co. 295 Mass. 350 , 353.

In many of the cases of implied warranty of the fitness of food for human consumption there was evidence that the food looked or smelt or tasted bad. That was true in the cases relied on by the Appellate Division in its opinion. Barringer v. Ocean Steamship Co. of Savannah, 240 Mass. 405 . Smith v. Gerrish, 256 Mass. 183 . Landfield v. Albiani Lunch Co. 268 Mass. 528 . Schuler v. Union News Co. 295 Mass. 350 . Flynn v. Growers Outlet, Inc. 307 Mass. 373 . But such evidence is not essential to recovery. In this case there was evidence that another, who ate what the plaintiff ate except for the apple dumpling, had no ill effects. That pointed to the apple dumpling as the cause of the plaintiff's illness. The evidence of the physician warranted a finding of poisoning from food eaten at about the time the dumpling was eaten. The judge could infer that both the plaintiff and the boarder were normal in respect to the effect of food. Payne v. R. H. White Co. 314 Mass. 63 . Epstein v. Boston Housing Authority, 317 Mass. 297 , 301. We think that on the evidence the judge was warranted in finding for the plaintiff.

Order of Appellate Division reversed.

Judgment for the plaintiff on the finding.