EXCEPTIONS by defendant to rulings of the Superior Court for Suffolk County (Chase, J.) made during the trial of an action brought to recover damages for injuries due to a foreign substance in food, alleged to have been caused by defendant's negligence. Sustained. The facts are stated in the opinion Mr. Fitz-Henry Smith, Jr., for defendant: A restaurant keeper is not an insurer of the food furnished by him, and is not liable unless he knowingly or negligently furnishes bad or deleterious food. Beale, Innkeepers & Hotels, § 169; 22 Cyc. 1081; 16 Am. & Eng. Enc. Law, 2d ed. 547; Crocker v. Baltimore Dairy Lunch Co. 214 Mass. 177, 100 N. E. 1078, Ann. Cas. 1914B, 884; Sheffer v. Willoughby, 163 Ill. 518, 34 L.R.A. 464, 54 Am. St. Rep. 483, 45 N. E. 253; Travis v. Louisville & N. R. Co. 183 Ala. 415, 62 So. 851; Merrill v. Hodson, 88 Conn. 314, L.R.A.1915B, 481, 91 Atl. 533; Valeri v. Pullman Co. 218 Fed. 519; Clancy v. Barker, 69 L.R.A. 653, 66 C. C. A. 469, 131 Fed. 161, 16 Am. Neg. Rep. 664. The evidence did not warrant a finding that the defendant knew or ought to have known of the presence of the tack in the pie. Burnham v. Lincoln, 225 Mass. 408, 114 N. E. 715; Hasbrouck v. Armour & Co. 139 Wis. 367, 23 L.R.A. (N.S.) 876, 121 N. W. 157, 21 Am. Neg. Rep. 430. The evidence did not warrant a finding that the defendant was negligent. Plaintiff did not sustain the burden of proof. Crocker v. Baltimore Dairy Lunch Co. 214 Mass. 177, 100 N. E. 1078, Ann. Cas. 1914B, 884; Sheffer v. Willoughby, 163 Ill. 518, 34 L.R.A. 464, 54 Am. St. Rep. 483, 45 N. E. 253; Kusick v. Thorndike & Hix, 224 Mass. 413, 112 N. E. 1025; Travis v. Louisville & N. R. Co. 183 Ala. 415, 62 So. 851. of the court. The circumstances as to how and when the tack got into the pie, and why it was not discovered, were left entirely to conjecture. Ryan v. Fall River Iron Works Co. 200 Mass. 192, 86 N. E. 310; Bigwood v. Boston & N. Street R. Co. 209 Mass. 345, 35 L.R.A. (N.S.) 113, 95 N. E. 751. This is not a case of res ipsa loquitur. Beattie v. Boston Elev. R. Co. 201 Mass. 6, 86 N. E. 920; Minihan v. Boston Elev. R. Co. 197 Mass. 367, 83 N. E. 871; O'Neil v. Toomey, 218 Mass. 244, 105 N. E. 974; Wadsworth v. Boston Elev. R. Co. 182 Mass. 574, 66 N. E. 421; Ware v. Gay, 11 Pick. 106; Stokes v. Saltonstall, 13 Pet. 181, 10 L. ed. 115, 7 Am. Neg. Cas. 297; Sweeney v. Erving, 228 U. S. 233, 239, 240, 57 L. ed. 815, 818, 819, 33 Sup. Ct. Rep. 416, Ann. Cas. 1914D, 905; Cincinnati, N. O. & T. P. R. Co. v. South Fork Coal Co. 1 L.R.A. (N.S.) 533, 71 C. C. A. 316, 139 Fed. 533. Defendant performed its full duty to the plaintiff. Gibson v. International Trust Co. 177 Mass. 103, 52 L.R.A. 928, 58 N. E. 278; Travis v. Louisville & N. R. Co. 183 Ala. 415, 62 So. 851; Burnham v. Lincoln, 225 Mass. 408, 114 N. E. 715; Hasbrouck v. Armour & Co. 139 Wis. 366, 23 L.R.A. (N.S.) 876, 121 N. W. 157, 21 Am. Neg. Rep. 430. Mr. W. F. White also for defendant. Mr. Albert J. Connell, for plaintiff: It is not necessary for the plaintiff to prove the particular series of events which led to the injury. It is enough to prove that the probable consequence of the defendant's acts was that harm of the same character would come to others who stood in the same relations to the defendant as the plaintiff did. Ogden v. Aspinwall, 220 Mass. 100, 107 N. E. 448. The presence of a long thin tack, longer than a carpet tack, in a piece of pie, is evidence for the jury to consider in determining whether or not the pie had been properly prepared. Wilson v. J. G. & B. S. Ferguson Co. 214 Mass. 267, 101 N. E. 381; Roberts v. Anheuser Busch Brewing Asso. 211 Mass. 449, 98 N. E. 95. A restaurant keeper is liable for knowingly or negligently furnishing deleterious food. Farrell v. Manhattan Market Co. 198 Mass. 286, 15 L.R.A. (N.S.) 884, 126 Am. St. Rep. 436, 84 N. E. 481, 15 Ann. Cas. 1076, 21 Am. Neg. Rep. 142; Crocker v. Baltimore Dairy Lunch Co. 214 Mass. 179, 100 N. E. 1078, Ann. Cas. 1914B, 884; Merrill v. Hodson, 88 Conn. 314, L.R.A.1915B, 481, 91 Atl. 533; Sheffer v. Willoughby, 163 Ill. 518, 34 L.R.A. 464, 54 Am. St. Rep. 483, 45 N. E. 253. Rugg, Ch. J., delivered the opinion of the court: Evidence Food-duty as to quality. This is an action of tort. It rests solely upon allegations of negligence. The burden of proving that the proximate cause burden of proof of the plaintiff's in-injury by food. jury was the negligence of the defendant, or its servants or agents, rested on the plaintiff. It is well settled that the duty rests upon the keeper of an inn, restaurant, or other eating place to use due care to furnish wholesome food, fit to eat. Failure in this respect, resulting in injury, is foundation for an action for negligence. Bishop v. Weber, 139 Mass. 411, 417, 52 Am. Rep. 716, 1 N. E. 154; Crocker v. Baltimore Dairy Lunch Co. 214 Mass. 177, 100 N. E. 1078, Ann. Cas. 1914B, 884; Wilson v. J. G. & B. S. Ferguson Co. 214 Mass. 265, 101 N. E. 381; Tomlinson v. Armour & Co. 75 N. J. L. 748762, 19 L.R.A. (N.S.) 923, 70 Atl. 314. The testimony of the plaintiff tended to show that she received injuries from the presence of a tack in a piece of blueberry pie which she was eating while a guest of the de- than a carpet tack." It was not The pie was made by the defendant on its premises, and served as food by its waitress to the plaintiff. The manager of the defendant testified that at that time its blueberries came in ordinary quart berry baskets, made of wood, in which were tacks "hardly an eighth of an inch long, with a flat head, and that this was the first time in the eighteen years that he had been in the business that he had seen a tack in blueberries." There was other testimony to the effect that a high degree of care was exercised in the preparation of the blueberries for the pies. That is laid on one side, as it may not have been credited by the jury. But dis negligence defendant's belief of the defend- Evidence- gence. There is nothing in the record from which it can be inferred that the harm to the plaintiff resulted directly from any failure of duty on the part of the defendant. The precise cause of her injury is left to conjecture. It may as reasonably condition for be attributed to which no liability attaches to the defendant as to one for which it is Under such circumresponsible. stances, the plaintiff does not sustain the burden of fastening tortious conduct on the defendant by a fair preponder- burden of ance of all the eyi- proof-cause dence, and a verdict ought to be directed accordingly. Leavitt v. Fiberloid Co. 196 Mass. of injury. (231 Mass. 86, 120 N. E. 396.) 440, 444, 15 L.R.A. (N.S.) 855, 82 N. E. 682. The tack was very small. It was so tiny that it readily might have become embedded in a blueberry. If so, its color and shape were such that it would naturally escape the most careful scrutiny. It might as readily have stuck into a blueberry before it came to the possession of the defendant as afterward. The carelessness of some person for whom the defendant in no way was responsible might have caused its presence in the pie. The maker of the basket, some previous owner of the berry, or some other third person, is as likely to have been the direct cause of the tack being in the pie as the defendant or those for whose conduct it is liable. The facts are quite different from those disclosed in Hunt v. Rhodes Bros. Co. 207 Mass. 30, 92 N. E. 1001. These suggestions make it plain that this is not a case for the application of res ipsa loquitur. That -res ipsa loquiturtack in pie. doctrine may be invoked in the case of an unexplained accident, which, according to the common experience of mankind, would not have happened with -res ipsa loquitur-when applicable. out fault on the part of the defend It ant. St. Louis v. Bay State Street Innkeepers negligence. injury to guest The burden of proof negligence. resting upon the plaintiff to establish that fact must be sustained by evidence either direct or inferential. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 176, 53 L. ed. 453, 462, 29 Sup. Ct. Rep. 270. The case falls within the class of which Crocker v. Baltimore Dairy Lunch Co. 214 Mass. 177, 100 N. E. 1078, Thorndike & Hix, 224 Mass. 413, Ann. Cas. 1914B, 884, Kusick v. Lincoln, 225 Mass. 408, 114 N. E. 112 N. E. 1025, and Burnham v. 715, are examples. See, in this connection, Hasbrouck v. Armour & Co. 139 Wis. 357, 23 L.R.A. (N.S.) 876, 121 N. W. 157, 21 Am. Neg. Rep. 430. No question arises as to the contractual relations between the parties. In the opinion of a majority of the court, the entry must be exceptions sustained. ANNOTATION. Presumption of negligence from foreign substance in food. It is to be observed that this annotation is not concerned with the substantive question of liability on account of presence of foreign substance in food. There is a conflict of conclusions among the few cases which have passed upon the question whether or not a presumption of negligence arises from the mere fact that an injurious foreign substance is found in food or other articles prepared for human consumption, but this diversity is, in the main, the result of the application of the same principles. In the reported case (ASH v. CHILDS DINING HALL Co. ante, 1556), the court, applying the general rule that the doctrine res ipsa loquitur may be invoked in the case of an unexplained accident which, according to the common experience of mankind, would not have happened without fault on the part of the defendant, and that it does not avail where the cause of injury is just as likely to have been the fault of another, held that the mere presence of a small tack in the berry pie served by a restaurant keeper to a patron did not, under the rule res ipsa loquitur, establish negligence on the part of the victualer, although the pie was made on his premises, there being no evidence as to how the tack got into the : pie, and its size and shape being such that it might have been embedded in a berry through the fault of another, in such a way that it would escape the most careful scrutiny of the restaurant keeper. In other words, it was said that the mere fact of injury did not show negligence. So, in Jacobs v. Childs Co. (1916) 166 N. Y. Supp. 798, where a guest in defendant's restaurant was injured by biting on a nail concealed in a piece of cake which had been baked by defendant and served in waxed paper, it was held that the doctrine res ipsa loquitur did not apply, and that the mere fact of the presence of the nail was not sufficient to charge the defendant with negligence. In this case the court placed considerable stress upon the fact that nails were something in no wise connected with the preparation of the cake, and, therefore, something which the defendant was not specially bound to guard against. It was also recognized that the negligence might have been that of a third person, for it was said that the nail "apparently was dropped into the dough, carelessly or wilfully, by one of the defendant's servants or an outsider." And in Rosenswaike v. Interborough Rapid Transit Co. (1919) 175 N. Y. Supp. 828, where a restaurant patron was injured by a piece of a broken milk glass in potatoes served by the defendant, it was held that such fact authorized a finding of negligence in the preparation or service of the food, and the rendering of a verdict for plaintiff, the defendant having offered no evidence. A similar case is Ternay v. Ward Baking Co. (1917) 167 N. Y. Supp. 562, where particles of glass were embedded in bread. On the other hand, in Freeman v. Schultz Bread Co. (1916) 100 Misc. 528, 163 N. Y. Supp. 396, where one was injured by biting into a nail embedded in bread, it was held, as against the contention that the rule res ipsa loquitur did not apply, that a was established as against the baker by proof that the nail was in the bread when it left the bakery, without any proof of actual negligence on the part of the baker. So, in Chaproniere v. Mason (1905) 21 Times L. R. (Eng.) 633, where plaintiff was injured by biting on a large stone concealed in a bun manufactured by and purchased from the defendant, it was held that the doctrine res ipsa loquitur applied, and that the mere presence of the stone in the bun was prima facie evidence of negligence, and threw on the defendant the onus of giving evidence to rebut it. And in Pillars v. R. J. Reynolds Tobacco Co. (1918) 117 Miss. 490, 78 S. W. 365, it was held that one who was poisoned by chewing tobacco which contained a decomposed human toe could recover from the manufacturer, the court maintaining that, while tobacco was not a food, it was prepared for human consumption, requiring the manufacturer to exercise the greatest care to prevent a dangerous condition, and that, since the court could not imagine why, with ordinary care, human toes could not be left out of tobacco, "it seems to us that somebody has been very careless." But in connection with this case, see Liggett & M. Tobacco Co. v. Cannon (1915) 132 Tenn. 419, L.R.A.1916A, 940, 178 S. W. 1009, Ann. Cas. 1917A, 179, wherein it was held that the defendant, in the absence of proof of actual negligence upon its part, was not liable for injury to plaintiff caused by his chewing a piece of plug tobacco manufac tured by defendant, in which was embedded a bug. In Jackson Coco-Cola Bottling Co. v. Chapman (1914) 106 Miss. 864, 64 S. W. 791, where plaintiff was made sick from drinking a bottle of cocacola which contained a decomposed mouse, it was held that the bottling company was liable, although there was no evidence to show how the foreign substance got into the bottle. In this case the court does not expressly discuss the question whether or not the mere fact that the bottle contained the mouse raised a presumption of negligence against the defendant, but the plaintiff's case seemed to rest solely upon that fact, the court merely stating that the record disclosed suffi cient evidence to sustain a verdict for plaintiff, and that the defendant was under a legal duty to see that, in the process of bottling, no foreign sub- CORA E. PUFFER, Respt., V. O. B. BADLEY, Appt. Oregon Supreme Court (Dept. No. 1)-May 27, 1919. (Or., 181 Pac. 1.) Attorney knowledge imputed to client information from opposite parties. 1. A purchaser who, owing to the illness of his own attorney, accepts the services of the seller's attorney to pass upon the sufficiency of the title, is not charged with notice of knowledge as to the source of property which went into the trade which the attorney had learned from the seller. [See note on this question beginning on page 1592.] APPEAL by defendant from a judgment of the Circuit Court for Multnomah County (Gantenbein, J.) in favor of plaintiff in an action brought to recover money had and received by defendant for plaintiff's use. Affirmed |