Blumberg, Allan B.

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Amended Definition of Sale to Include Food Consumed on Premises

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Maryland Law ReviewVolume 18 | Issue 4 Article 9Amended Definition of Sale to Include FoodConsumed on PremisesAllan B. BlumbergFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Commercial Law CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationAllan B. Blumberg, Amended Definition of Sale to Include Food Consumed on Premises, 18 Md. L. Rev. 343 (1958)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol18/iss4/91958] FOOD CONSUMED ON PREMISES - SALE 343him to go to the place not originally covered by his in-vitation. However, if he wanders to a place where he hadnever been before or clearly had no right to go, then itseems more likely he will be classified a licensee or perhapseven a trespasser. This question of status on implied in-vitation or custom will remain in doubt until a clearer viewis taken by the Court.ALLAN B. BLUMBERGAmended Definition Of Sale To IncludeFood Consumed On PremisesEffective June 1, 1958, a new definition of the word salewas added to the Maryland Uniform Sales Act:"'Sale' includes a bargain and sale as well as a saleand delivery and also the serving or providing of foodfor human consumption by any caterer, or by any res-taurant, hotel, boarding house, dining room or anyother eating establishment."'The effect of this addition will, it would clearly seem,result in bringing food purchased in a restaurant for im-mediate consumption under the definition of an impliedwarranty.Prior to this change in the statute, the only case present-ing the question of whether food purchased in a restaurantwas a sale or a service was Dining Hall Co. v. Swingler.2There, the plaintiff entered the defendant's restaurant andordered a sandwich. When she bit into the bread, a piece oftin lodged in her mouth causing serious injury. The Court,in reversing judgment for the plaintiff, concluded that thepurchase and eating of food on the premises was not a salewithin the meaning of the Sales Act.' The feeling wasexpressed that if a sale were found, and therefore an im-17 MD. CODE (Cum. Supp. 1958), Art. 83, §94(1). It should be noted thatthis is an amendment to the Uniform Sales Act in Maryland by the Mary-land General Assembly, and not one promulgated by the Commissioners onUniform Laws. The portion added at the end is italicized.173 Md. 490, 197 A. 105 (1938), noted, 2 Md. L. Rev. 277 (1938).8 Ibid., 503. The Court there said:"We hold that an action in tort in such cases as this affords to theInjured person a convenient and adequate remedy, and disposes of thecontention that the adoption of the negligence theory, rather than thatof an implied warranty, would amount to a practical denial to thoseinjured in cases from food adulteration, foreign substances or unmer-chantable quality."MARYLAND LAW REVIEWplied warranty as to fitness for consumption, the restaurantkeeper would be in the position of an insurer. By findingthat food served on the premises was only a service, theburden was put on the injured party to show negligence onthe part of the restaurant keeper since the action would bein tort and not in contract. Two judges dissented on thegrounds that a restaurant keeper who serves food is verywell aware of the use to which it will be put and thereforethis type of transaction should be treated as a sale andsubject to any implied warranties that are applicable.4The Maryland Court has made the distinction betweenfood purchased in a restaurant and food purchased in aretail store for consumption at some other place. In Vac-carino v. Cozzubo,5 the Court, while finding the plaintiffguilty of contributory negligence, still held that sale offood by a retail store for immediate consumption is a saleand not a service, and therefore subject to implied war-ranties.Prior to the passage of the amendment to the SalesAct,6 Maryland was in the minority regarding retail res-taurant service."The numerical minority of the jurisdictions inwhich the question has arisen adhere to the view thatone engaged in the business of serving food for im-mediate consumption on the premises does not im-pliedly warrant that the food served is wholesome orfit for human consumption but, in the absence of anexpress statute, is liable only for negligence. '7It is interesting to note that the recent Maryland amend-ment does not specifically mention drink.' Whether theomission of this word by the legislature was intentionalor not we do not know. However, on the face of the lan-guage of the amendment it might appear that anyoneIbid., 516:"To say that a restaurant keeper who delivers a sandwich, or someother similar portion of food, to a patron who pays for it, when therestaurant keeper knows that the purchaser intends to eat it, makes norepresentation that it is fit to eat, if it is to be eaten in the restaurant,but does make such a representation if it is to be taken out of therestaurant, seems absurd."181 Md. 614, 31 A. 2d 316 (1943), noted 8 Md. L. Rev. 61 (1943). Andsee 18 Md. L. Rev. 156 (1958).0 Supra, n. 1.7 A. L. R. 2d 1027, 1054, 1055, citing the Swingler case, supra, n. 2." The Proposed Uniform Cpmmercial Code (1957 Official Text) providesin §2-314 that the "serving for value of food or drink to be consumed eitheron the premises or elsewhere is a sale." (Italics supplied.)[VOL. XVIIIKEITZ v. NATIONAL PAVING CO.injured by a deleterious substance in a drink will still haveto base his suit on negligence and not on implied warranty.On the other hand, it could be argued that beverages forhuman consumption are just as much food as are solids, andthis would seem to be the more reasonable interpretation.There is some doubt as to what effect the new pro-vision will make in the practical application of the rule.Whether or not the new law will give rise to a series ofnuisance claims remains to be seen. In any event, it seemssound to give relief to one injured in a restaurant on thesame grounds as if food were taken out. The difficulty,even impossibility, of proving negligence in many casescan result in injustice.ALLAN B. BLUMBERGThe Borrowed ServantKeitz v. National Paving and Contracting Company'Lloyd Ogle was driving a dump truck on Pimlico Roadwhen he negligently drove across the center line and strucka bus, seriously injuring the driver. A suit was institutedagainst the servant Ogle, and against Elizabeth May Sud-brook and The National Paving Company, who were, re-spectively, his general and special employers.2 The lowercourt directed a verdict in favor of the special employer,and the jury found against the other two defendants. Theplaintiff appealed, seeking to hold the special employer also.The Court of Appeals awarded plaintiff a new trial againstNational. In deciding that the jury could reasonably findthat National had such a relationship to Ogle's acts that it,as well as Sudbrook, could be held liable, the Court pointedout that it is essential that a master who is to be held havethe right to control, but not that he actually exercise it.Under the usual test, when the servant causes injuryby doing an act in a negligent manner, that master is held1214 Md. 479, 134 A. 2d 296 (1957). Reargued on different points, 214Md. 496, 136 A. 2d 299.2The general employer is that individual with whom the servant isregularly employed and who was the master before the servant was bor-rowed or hired and who will continue as such after the service to thespecial employer has terminated. The special employer is that individualwho has borrowed or hired the servant from the general employer. Thereis generally a contractual relationship between the general and special em-ployers under which the servant is lent or hired to the special employer.For an illustration of this definition see: M.EHF , AGENoY (4th ed.1952) §453.19581

Amended Definition of Sale to Include Food Consumed on Premises

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