Goetten v. Owl Drug Co.

California Supreme Court Jun 30, 1936 No. L. A. 15624Published

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Holding. The court held that a restaurant keeper is subject to an implied warranty that food served to patrons is wholesome and free from dangerous foreign substances, regardless of whether the restaurant was negligent. Consequently, the trial court correctly granted a new trial because the jury was erroneously instructed to decide the case solely on the theory of negligence.

Issues

Whether the serving of food by a restaurant constitutes a sale subject to an implied warranty of fitness and wholesomeness.
Whether a restaurant keeper is liable for injuries caused by foreign substances in food only upon proof of negligence.
Whether the trial court erred in granting a new trial after instructing the jury only on a negligence theory.

Disposition. affirmed

Quotations verified verbatim against the opinion

“there is an implied warranty under the provisions of section 1735 that the food delivered is wholesome.”

“The application of the rule of implied warranty to cases such as that before us may impose a heavy burden upon the keepers of restaurants and lunch counters, but considerations of public policy and public health and safety are of such importance”

“This error in excluding from the consideration of the jury the question of implied warranty—a warranty which existed regardless of whether the glass entered the food before or after it came into appellants’ possession—amply justified the trial court”

THE COURT.

Upon further consideration, we are satisfied that the conclusion reached and the views expressed in the opinion of the District Court of Appeal, Second Appellate District, Division Two, written by Fricke, J.,

pro tempore,

are correct and we therefore adopt that opinion as the decision of this court. It is as follows:

“Appeal by defendants Owl Drug Company and its manager, R. Thomasen, from an order granting a motion for new trial.

“On November 18, 1933, respondent Hattie G. Goetten and her husband, John P. Goetten, went into appellants’ place of business and ordered some chow mein at the lunch counter. In eating the same she noticed what seemed to be

[685]

sand, and near the conclusion of the meal she choked and discovered and removed from her mouth a piece of broken glass about a quarter of an inch wide and somewhat longer. She at the same time swallowed a similar piece of glass and her mouth and throat were cut by the broken glass. There was evidence that the glass splinter removed from her mouth was green in color and appeared to be the same kind of glass as that of which the water glasses and other glassware used by appellants was made. The incident was immediately reported to the manager of the store and he in turn questioned the waiter, who informed him-that there was glass in the food. In addition to the cuts in her throat and mouth, Mrs. Goetten suffered pains in her abdomen and nausea, was under medical care for a number of months, lost weight and otherwise suffered ill health, while prior to the incident she had enjoyed good health. The foregoing facts do not appear to be controverted, with the exception that appellants in their brief assert that ‘Hattie Goetten never suffered any ill effects due to glass being swallowed’. The latter statement is made in connection with a statement that her condition, other than the cuts in her mouth and throat, was produced not as a proximate result of swallowing any broken glass but was the result of a mental obsession, not supported by the facts, that she had swallowed and retained in her system a quantity of broken glass. It was stipulated, however, that she was not malingering. The medical bills and expenses were stipulated to be in the amount of $1,160.

Goetten v. Owl Drug Co.

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THE COURT.

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