
    Clark Restaurant Co. v. Simmons.
    (Decided December 19, 1927.)
    
      Messrs. Mooney, Háhn, Loeser d Keough, for plaintiff in error.
    
      Mr. William 8. FitsCerald and Mr. Fred C. Coleman, for defendant in error.
   Vickery, J.

This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county. In the court below, plaintiff, Arthur Simmons, brought an action against the Clark Restaurant Company to recover damages for having been sold a piece of pie which contained a piece of glass, some three-fourths inch in length by one-half inch in width, claiming that he was damaged thereby, and he recovered a judgment for $2,000. It is to reverse that judgment that error proceedings are prosecuted here.

Several errors are urged why this judgment should be reversed.

It is claimed that there is no evidence in the record which shows negligence on the part of the Clark Restaurant Company; that, as it was an action in negligence, the burden of proof was upon the plaintiff to prove negligence; that, even if the doctrine of res ipsa loquitur was applied, it would simply mean a rule of evidence, the burden being upon the defendant to explain away what seemed to be negligence, and that the doctrine of res ipsa loquitur was not urged in this case and was not applicable; and that in any event, as already stated, inasmuch as there, was no negligence in either respect that was made the basis of the action of the petition, the court should have granted a motion to direct a verdict, and its action in not doing so, was erroneous.

We have gone over this record, heard the arguments of the counsel, and familiarized ourselves with the briefs, and we cannot say that a good cause of action is not stated in the petition, and the proof warrants the verdict that was returned.

It is true it is urged that this is an action of negligence only, and that before a recovery can be had proof must be adduced showing the want of ordinary care under the circumstances; in other words, that the' action is based upon the common-law rule. of negligence. Under the present status of the law in Ohio, we wonder whether that is so.

The case of Portage Markets Co. v. George, 111 Ohio St., 775, 146 N. E., 283, went up from Akron. The Supreme Court of Ohio construed to a certain extent Section 12760, General Code, which provides against the selling of deleterious or adulterated food, and held the market company responsible for damages resulting in injuries by reason of the sale of such unwholesome food. In that case the court expressly withheld any opinion as to whether that statute applied to hotels or restaurant keepers.

In a recent unreported case in which no opinion was written, Harry C. Long v. Cleveland Hotel Co., decided by this court, it was held that the Cleveland Hotel Company was responsible in damages resulting from the sale to one of its patrons of certain unwholesome meat, which resulted in injuries to the patron of the hotel, holding in effect that the statute applied to all sales of food, whether they were made by the hotel company or by a dealer in food products alone. The Supreme Court, in refusing to certify the case, affirmed in effect the judgment of this court.

Now if the Supreme Court was right in construing the statute in the Akron case, and if this court was right in the Long v. Cleveland Hotel case, the statute created another and different rule of liability for those dealing in food products and selling them to their patrons, either over the counter, as in the market house, or over a dinner table, as in a hotel, and consequently over the counter or table in a restaurant.

The instant case is much clearer than the Long v. Cleveland Hotel Co. case, for in that case it was necessary to get the testimony of experts, not only bearing upon the question whether the meat was diseased or not, bnt upon the question whether the injury resulted from that diseased condition, and in that case it was fairly submitted to the jury, and this court held a liability.

In the instant case there is no question but that plaintiff went into the restaurant and asked for a piece of rhubarb pie, and that in that pie was this adulterating substance, to wit, a piece of glass three-fourths inch by one-half inch, and that in getting that glass into his mouth he broke his- teeth and cut his mouth and got some of the broken glass into his stomach and intestines, which resulted in damages by keeping him from his employment for a period of .more than 100 days, and otherwise injuring him.

It is argued, both in the Cleveland Hotel case and the instant case, that there was no sale of the product to the patron, because the sale mentioned in the statute refers only to the market man or the wholesaler, and that this is only service of the hotel to its patron, and not a sale.

Let us see how this would sound. A saloon keeper, or one dealing in liquor, buys it from some source, and he serves to his patron over the counter, or over the bar, or over the table, a single glass of alcoholic liquor to be drunk on the premises, for which he receives money. The books are filled with cases where men and women have been convicted of a sale in violation of law, when only a single glass of liquor has been served to a patron. If a glass of whisky or other liquor served to a patron is a sale, why should not a beefsteak or a piece of pie served likewise for money be a sale ?

We are not captivated by the argument in this respect that there was no sale. When this plaintiff went into the restaurant to get a piece of pie, they sold him a piece of pie, and that piece of pie had an adulterous substance in it, which caused the injury resulting in the suit, and led to the damages recovered therein.

' It is argued in this case by the plaintiff in error that only the rule of common-law negligence applies, and, as the restaurant keeper did not make the pies, he is not legally responsible. The record is silent on the subject as to whether the Clark Restaurant made this pie or not, but we apprehend there cannot be one rule of liability applicable to a restaurant keeper or a hotel keeper that makes his own pies and another rule applicable to a restaurant keeper or a hotel keeper who goes out and buys pies. It is hardly conceivable that a patron, before he can safely eat in a restaurant or hotel, must first inquire whether or not it makes its own pastries. If it does, the patron may be safe in eating it. If it does not, he may not be safe in eating it. We say we hardly think that a rule of law that involves such absurdities could be argued, for we think that public policy demands that those who cater to the public should be liable to their patrons for the deleterious effect of supplies which they sell to them. The patron is absolutely without any fault, without any means of knowing anything about supplies that are furnished him, and must rely wholly upon the standing and the reputation of the hotel or restaurant at which he dines.

Nor can this be said to be a hardship upon the hotel keeper or restaurant keeper, for he must know where he procures his supplies, and, if he is mulcted in damages by selling to his patron improper food, deleterious to the health, and is compelled to pay damages by reason thereof, he would at once have a right of action over against the person that sold him the supplies. Perhaps he might be subrogated to the rights of the party to recover against the party who sold to him, so we can see no hardship- in holding the restaurant keeper strictly responsible for whatever damage naturally results from the sale of adulterated food or improper food, or food mixed with unpalatable objects which caused the damage, and we think that the statute above cited changes and makes more stringent the rule governing those who sell food and food supplies, whether it be in the market, in the hotel, or in the restaurant. In other words, the statute practically makes them an insurer of the wholesomeness of the food which they vend.

It is urged in this case that this verdict is excessive. "We do not think so. Plaving reviewed the entire case, we can see no error that would warrant us in disturbing the judgment, and it will therefore be affirmed'.

Judgment affirmed.

Sullivan, P. J., and Levine, J., concur.  