
    No. 905
    Southern Suffolk, ss.
    SUMMERFIELD v. H. J. SEILER CO.
    (Fowler, Bauer &? Kenney)
    (William Doyle, Edward V.. Cashin)
    From the Municipal Court of West Roxbury
    Deland, J.
    Argued April 10, 1941
    Opinion Filed May 20, 1941
   BRIGGS, J.

(Sanborn, P.J., & Estes, J.)—This is an action of tort and contract for personal injuries sustained by the plaintiff from eating an oyster at a collation served by the defendant. The declaration is in three counts.

The court could warrantably find from the evidence presented that the plaintiff was a member of an organization and attended a meeting thereof at which a collation was served by the defendant, a caterer of thirty years of experience, in ac' cordance with previous arrangements.

The plaintiff, proceeding around the table from which the collation was served, first went to the oyster section, extended his plate, and the waiter filled it with oysters. He ate two and started to eat a third. In swallowing, it lodged in his throat, making it difficult to breathe. He was taken to the Haymarket Relief Station and later sent to the Massachusetts Eye and Ear Infirmary, where an X'ray was taken, he was given a pill to swallow, his throat cocained, and preparations made to etherise him. Later he felt a large mass with a sharp edge pass down his throat to his stomach. An X'ray demonstrated a linear area of increased density, about one'half an inch long, with definite indications of a foreign body.

It could further be found that the oysters were purchased “shucked" from a reputable dealer and delivered in tin cans from which they were poured into pitchers, and then they were poured into hollowed ice blocks for serving. No inspec' tian of the “shucked" oysters was made.

The defendant admitted that it was in the catering bush ness and held itself out as skilled therein.

The court made the finding of fact that the oyster was rem dered unfit for consumption by the presence of a foreign sub' stance, and found for the plaintiff on Count 1, in tort, for negligence. Requests for rulings of law were duly presented by both parties hereto. The defendant now alleges error in the denial of its request numbered 8: “The evidence does not war' rant a finding for the plaintiff," and to the granting of the plaintiff’s requests numbered 6, 10, and 13.

No error appears in the denial of the defendant’s "request numbered 8. There was evidence warranting the finding for the plaintiff. While decisive on matters of pleading the case of Bishop v. Weber, 139 Mass. 411, has defined the obligations of a caterer toward guests as follows: “If one who holds him' self out to the public as a caterer, skilled in providing and preparing food for entertainments, is employed as such, by those who arrange for an entertainment, to furnish food and drink for all who may attend it, and if he undertakes to per' form the service accordingly, he stands in such a relation of duty toward a person who lawfully attends the entertainment, and partakes of the food furnished by him as to be liable to an action of tort for negligence in furnishing unwholesome food whereby such person is injured.”

This liability does not rest so much upon an implied con' tract as upon a violated or neglected duty voluntarily assumed. The duty, however, arises from the relation of the caterer to the guests. The latter have the right to assume that he will furnish for their consumption provisions which are not urn wholesome and injurious through any neglect on his part.

It is not necessary to aver that the defendant knew of the injurious quality of the food. It is sufficient if it appears that he ought to have known it, and was negligent in furnishing unwholesome food, by reason whereof the plaintiff was injured. ■ The defendant did nothing to protect those who might eat the oysters it served except to buy of a reputable dealer. It made po inspection.

By the granting of the 6th request of the plaintiff the court in effect found that an inspection by the defendant would have shown the presence of a foreign body in the oysters served, and that failure to perform that duty amounted to negligence. No error is disclosed in view of the evidence. Neither is any error shown in granting the 10th and 13 th requests. The finding by the court includes a violation of duty on the part of the defendant with a resultant injury to the plaintiff, for which the defendant was responsible. Sullivan v. Manhattan Market Co. 251 Mass. 395; Cushing v. Rodamn, 82 F. (2nd) 864. Grossman v. Hotel Astor, 166 Misc. (N. Y.) 80.

Other questions raised need not be considered as the plain' tiff waived the report -claimed by him, conditioned upon this court upholding the trial court in those rulings on which a report was claimed by the defendant.

Since no error is disclosed by the action of the trial court on the plaintiff’s requests, the entry will be made:

Plaintiff’s report dismissed. Defendant’s report dismissed.  