Business Law 13th Edition by Frank Cross, Kenneth Clarkson, Roger LeRoy Miller

تمرين 13

Webster v. Blue Ship Tea Room, Inc.
Supreme Judicial Court of Massachusetts, 347 Mass. 421 198 N.E.2d 309 (1964).
BACKGROUND AND FA CTS?Blue Ship Tea Room, Inc., was located in Boston in an old building overlooking the ocean. Webster, who had been born and raised in New England, went to the restaurant and ordered fish chowder. The chowder was milky in color. After three or four spoonfuls, she felt something lodged in her throat. As a result, she underwent two esophagoscopies (procedures in which a telescope-like instrument is used to look into the throat). In the second esophagoscopy, a fish bone was found and removed. Webster filed a suit against the restaurant in a Massachusetts state court for breach of the implied warranty of merchantability. The jury rendered a verdict for Webster, and the restaurant appealed to the state's highest court.
IN THE LANGUAGE OF THE COURT
REARDON, Justice.
[The plaintiff] ordered a cup of fish chowder. Presently, there was set before her "a small bowl of fish chowder." * * * After 3 or 4 [spoonfuls] she was aware that something had lodged in her throat because she "couldn't swallow and couldn't clear her throat by gulping and she could feel it." This misadventure led to two esophagoscopies at the Massachusetts General Hospital, in the second of which, on April 27, 1959, a fish bone was found and removed. The sequence of events produced injury to the plaintiff which was not insubstantial. We must decide whether a fish bone lurking in a fish chowder, about the ingredients of which there is no other complaint, constitutes a breach of implied warranty under applicable provisions of the Uniform Commercial Code * * *. As the judge put it in his charge [jury instruction], "Was the fish chowder fit to be eaten and wholesome? * * * Nobody is claiming that the fish itself wasn't wholesome. * * * But the bone of contention here-I don't mean that for a pun-but was this fish bone a foreign substance that made the fish chowder unwholesome or not fit to be eaten?"
* * * * [We think that it] is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks on a gustatory [taste-related] adventure which may entail the removal of some fish bones from his bowl as he proceeds. We are not inclined to tamper with age-old recipes by any amendment reflecting the plaintiff's view of the effect of the Uniform Commercial Code upon them. We are aware of the heavy body of case law involving foreign substances in food, but we sense a strong distinction between them and those relative to unwholesomeness of the food itself, [such as] tainted mackerel, and a fish bone in a fish chowder. * * * We consider that the joys of life in New England include the ready availability of fresh fish chowder. We should be prepared to cope with the hazards of fish bones, the occasional presence of which in chowders is, it seems to us, to be anticipated, and which, in the light of a hallowed tradition, do not impair their fitness or merchantability.
DECISION AND REMEDY The Supreme Judicial Court of Massachusetts "sympathized with a plaintiff who has suffered a peculiarly New England injury" but entered a judgment for the defendant, Blue Ship Tea Room. A fish bone in fish chowder is not a breach of the implied warranty of merchantability. IMPA CT OF THIS CASE ON TODAY'S LAW This classic case, phrased in memorable language, was an early application of the UCC's implied warranty of merchantability to food products. The case established the rule that consumers should expect to find, on occasion, elements of food products that are natural to the product (such as fish bones in fish chowder). Courts today still apply this rule. THE E-COMMERCE DIMENSION If Webster had made the chowder herself from a recipe that she had found on the Internet, could she have successfully brought an action against its author for a breach of the implied warranty of merchantability? Explain.