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This is an appeal on the judgment roll alone from a judgment in favor of defendants in an action brought against them by plaintiff for damages for personal injuries resulting from the swallowing of a fragment of chicken bone contained in a chicken pie sold and served by the defendants to plaintiff in a public restaurant conducted by them.

Two causes of action were separately alleged in plaintiff’s complaint, one for damages for injuries resulting from an alleged breach of an implied warranty, the other for personal injuries resulting from the alleged negligence of defendants and their servants in the preparation and serving of the chicken pie. A general and a special demurrer was sustained by the trial court without leave to amend, and upon motion of defendants the trial court entered its judgment of dismissal of both causes of action. The basic question, therefore, presented is whether or not either or both of the counts state a cause of action.

The facts upon which the action is based upon either theory, as alleged in the complaint, may be summarized as follows: On December 17, 1932, plaintiff entered the confectionery shop and restaurant conducted and operated by the…