
    Carol ROSENSTINE, Plaintiff vs. MOON GLOW RESTAURANT, INC. d/b/a CHINA MOON RESTAURANT, Defendant
    No. 8697
    District Court Division Appellate Division, Northern District Trial Court of the Commonwealth of Massachusetts
    December 22, 1981
    John D. McEhliney, Es q., counsel for plaintiff.
    F.J. McDonald, Esq., coi msel for defendant.
   OPINION

Banks, I.

This is an action i in contract for breach of warranty where! n the plaintiff seeks to recover for pers lonal injuries allegedly sustained as a resu. It of ingesting food purchased from the dej wtment and which was allegedly unfit for human consumption.

The plaintiff and her sisiter testified that at about 11:00 p.m. onJuily23, 1979, they purchased a joint order of food at defendant’s, restaurant and tha t they consumed the meal over the next half hour. The plaintiff and her sister testified that among the itpms ordered was a serving of chicken wings which, according to the report, both testified “tasted drj' and sour and smelled funny.” The plaintiiff’s sister refrained from eating the chicheen after one bite; the plaintiff, however , did eat them. The plaintiff’s further evidence was that she retired to bed at 1:00 a.m. on July 24, 1979, on the night of the imeal, and awoke at 3:00 a.m. with a sick stomach, vomiting and diarrhea whiicli led to her admission to Choate Memorial Hlospital at 4:00 a.m. on that morning of J uly 24, 1979. There she remained until her discharge on July 27, 1979.-' Pl'aintiff entered into evidence the records of the hospital, which suggested gastroen teritis as the most likely cause of plaintiff’s condition while admitting of the possibil ity of other causes. The plaintiff’s fu.rther evidence was her testimony that ini the time period preceding her. attack at 3:00 a.m. on July ÍÍ4, 1979, she had eaten nothing since breakfast at 8:30 a.m. on July 23, 1979, except the food purchased at defendant’s restaurant,‘nor had'she eaten anything / following the meal.-

The trial c.ourt made a finding' for plaintiff from' which the defendant has appealed, citi ng the denial of each of the following req uests for rulings of law: •

1. Conside ring all the evidence in a light me jst favorable to the plaintiff,' there is insufficient evidence to warrant a f inding that the food consumed by ■ the plaintiff was unfit for ’ humar i comsumption.' 1
2. There is insufficient evidence to warra ht a finding that the plaintiff’'s ‘ injury > is causally related to any act of ne/gligence or breach of Of th<P. íWpnHant ' ? 1 f’ '5 of th< e defendant
3. The i mere: ingestion of Chinese food,, followed by sickness within three hours, is insufficient evidence-"to wari rant á finding that the food ingest ed was unfit for consumption.
4. A findirig for defendaftt' is ' war-',f ran ted. ' ' - -:
5. A f inding; for defendant is required.

The claim of appéal must be allowed1' and the order vacated. "

In hi;s findings of fact.tfje trial,judgp...,, sets fort th the f.acts reported above and his , finding of a causal relationship between , the def endant’s food and the plaintiff’s ill- . ness. S .uch a finding appears to be clearly warrai ited and. the denial of defendant’s ,, requests numb ers (1), (2) arid (5) was certainly proper. The denial of the defendant’s; request number (3), however, and , particularly request number (4) was er- , ror. 3 fhe deniall of those requests was tan-, tamo unt to a d etermination that a finding ., for tl tie plaintiflt was required, there beirig no e vidence upion which a finding for thedefe ndant was possible. The report mak ;es it abundantly clear that no such abs< olute certainty existed in this case. To . . , cite: only one example of the uncertain-. ' ties, in the matter, we need look no fur-the r than the medical record, which cites thr ee possible causes for plaintiff’s illness, of which gastroenteritis was merely .recorded as most likely. The dangers of the “warranted” request have been dealt with very extensively by Mr. Justice Quirico in DeGesse v. Columbia Pontiac et al, 369 Mass. 99, and this court will not .seek to add to that explication. Suffice it that the denial of the two requests in this matter without more leaves open the question of whether the trial court applied the correct law in arriving at its -decision. In the DiGesse case the findings of fact and qualified nature of the denial ,of certain “warranted” requests were upheld because, taken as a whole, they could be seen as no<¿ indicating an incorrect application of the law by that trial ’ court. Such is not the case here, and in this matter the decision of the trial court vacated and the matter is hereby -remanded for a new trial.

So ordered.

EUiot T. Cowdrey, P.I.

James B. Tiffany, J.

Richard L. Banks, J.

This certifieis that this is the opinion of the Appellate, Division in this cause.

Charles R. Jannino Clerk, Appellate Division  