For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Schettino. For reversal -- Justices Hall and Haneman. Schettino, J., concurring. Hall, J. (dissenting). Justice Haneman joins in this opinion.
Plaintiff, a patron of a cafeteria concession, sued to recover for injuries caused by a deleterious substance in the food he ate in appellant's cafeteria. The complaint was in two counts. The first, in negligence, was dismissed; the second, in warranty, was upheld. After a trial without a jury in the Union County District Court, judgment was entered against Denham Food Service, defendant-appellant (hereinafter "Denham"), in the sum of $135 for special damages and $250 for pain and suffering. Manhattan Provision Co., the other defendant, was not served with process. Prior to argument in the Appellate Division on Denham's appeal, we certified the cause on our own motion.
Denham operates an employee cafeteria concession in the Saks Fifth Avenue store in Springfield, New Jersey. Plaintiff was employed by Saks and on September 23, 1958, during his lunch hour, entered Denham's cafeteria, ordered, received and paid for a frankfurter on a roll and a beverage. After paying for his food the plaintiff was free to lunch at a table provided for that purpose or to take the food and drink and go wherever he pleased inside or outside the premises. He chose to take the food and
drink to a table where he began to eat. Plaintiff alleges that when he bit into the frankfurter he struck a foreign substance, a small piece of bone or gristle which broke his tooth and caused bleeding in his mouth.
The frankfurter was an ordinary frankfurter encased in a skin. Denham purchased it in this form from Manhattan and did nothing to the frankfurter, other than grilling it in the presence of the plaintiff, before placing it in the roll and handing it over to him.
The basic question presented is whether a cafeteria operator engaged in preparing, cooking, and selling food is liable to a patron upon an implied warranty that the food is fit for human consumption.
Denham argues that the rule regarding a restaurateur's liability, as set forth in Nisky v. Childs Co., 103 N.J.L. 464, 135 A. 2 d 805, 50 A.L.R. 227 (E. & A. 1927), is dispositive here. There, a plaintiff sought damages for injuries caused by eating unwholesome fried oysters prepared and served in the defendant restaurant. Recovery on a theory of implied warranty of fitness for human consumption was denied.
The court in Nisky drew an analogy between an old English inn and a modern day restaurant. According to it, the serving of food in an inn constitutes a service and not a sale of goods. In the absence of a sale the court refused to find any implied warranty and held that a restaurateur could be liable only for negligence. In so holding it relied upon a statement attributed to counsel in Parker v. Flint, 12 Mod. 254, 88 Eng. Rep. 1303 (1699), that "an innkeeper * * * does not sell but utters his provisions." Also cited was the following statement by Professor Beale in his treatise, Innkeepers and Hotels, § 169, p. 117 (1906):
"As an innkeeper does not lease his room, he does not sell the food he supplies to his guests. It is his duty to supply such food as the guest needs, and the corresponding right of the guest to consume the food he needs and to take no more. Having finished his meal he has no right to take food from the table, even the
uneaten portion of the food supplied him. Nor can he claim a certain portion of the food as his own to be handed over to another in case he chooses not to consume it himself."
It further held that our Sale of Goods Act was merely declaratory of the common law and therefore did not apply to the serving of food in a public eating place. As our Legislature had not declared such transactions to be sales, the court felt that it was not privileged to incorporate service of meals into the act by judicial ruling. Moreover, it held that any modification of the common law would have to result from legislative action. Accordingly, it refused to follow Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100 (Sup. Jud. Ct. 1918), and Temple v. Keeler, 238 N.Y. 344, 144 N.E. 635, 35 A.L.R. 920 (Ct. App. 1924), which held restaurant keepers liable for breach of implied warranty without first holding that the service of food was a "sale" of goods in the narrow sense.
Denham also contends that any change in the Nisky rule should be made by the Legislature and not by "judicial legislation" and finally that, if there is a change in the rule, the change should be given prospective effect only.
We find it unnecessary to consider the validity of Nisky. There the service of food in the conventional restaurant was identified with the service of food in the ancient inn. That identification has been much criticized. The question here is whether that holding should be extended into another factual situation in which the points of similarity, thought in Nisky to require ...