Loucks

This is an action brought to recover damages for the breach of an implied warranty, under section 1775 of the Civil Code of the state of California, for alleged poisoning of plaintiff by reason of his having eaten rice, pudding as a part of his meal at the restaurant of defendant, and because of the sickness caused thereby, and his subsequent inability for a long period to practice his profession as an attorney at law.

From the record in this case it appears that on the fourteenth day of August, 1911, plaintiff went to the restaurant of said defendant, at about noon of said day, and became the guest of said defendant at said restaurant, and then and there, as such guest, bought and paid for and ate his noonday meal, which consisted of one order each of ham and egg sandwich, rice pudding, and tea. That said meal was furnished to said plaintiff by said defendant as a guest at said restaurant, and not otherwise. That about six and one-half hours after plaintiff had eaten his said meal, as aforesaid, he became ill, at said time being taken with cramps and an attack of dysentery, which was followed by a continuation of said illness, accompanied by vomiting. That the plaintiff was…

We concur in the judgment for the reason that, in the absence of any showing of negligence, the only ground upon which defendant can possibly be held liable is that of an implied warranty of the purity and quality of the food dispensed by it. The only implied warranty that might be invoked as applicable to the transaction, under the law of California, is that declared in section 1775 of the Civil Code, which applies alone to “one who makes a business of selling provisions for domestic use.” The _comiplaint does not allege, and the facts do not show, that the defendant was engaged in the business of selling provisions for “domestic use,” or that the transaction in question was a sale for “domestic use.” The defendant is a restaurant-keeper, who dispenses food to be consumed by customers in his place of business, and such was the transaction here complained of. Under a strict and accurate definition, the term “domestic use” does not apply to such sales.

The statute in question, as well as the common-law doctrine on which it is based, lays down a severe rule, which makes the dealer responsible for the consequence of any deleterious quality in his wares, no matter how free from…