A Recipe for Greatness

The previous post regarding California Judge Sill’s memorable opinion causes me to reflect on some of the more memorable opinions that form the landscape of Massachusetts jurisprudence over the years.

Perhaps one of the finest works of prose ever to constitute a legal opinion was crafted by Judge Paul Reardon, Chief Judge of the Massachusetts Supreme Judicial Court, in the case of Priscilla Webster v. Blue Ship Tea Room, 347 Mass. 421 (1964).

It seems that Ms. Webster, a native of New England (“a fact of some consequence,” noted the judge) patronized the Blue Ship Tea Room one day for a bowl of fish chowder, which contained haddock and potatoes (“in chunks (also a fact of some consequence),” noted the judge). While she was eating the chowder, a fish bone became lodged in her throat, and grievous injury ensued (the nature and extent of which were not in issue).

Ms. Webster sued the restaurant under a theory of breach of impled warranty of mercantability.

The Court determined that there was no breach of warranty, because one eating fish chowder in a restaurant on Boston Harbor ought to expect that a good chowder will have bones in it. But it is the language of Judge Reardon’s explanation that elevates the opinion to art form.

Rather than a dry recitation of legal holding suitable for a west keynote citation, Judge Reardon articulated the warranty holding in this fashion:

“No chef is forced to reduce pieces of fish in chowder to miniscule size in an effort to ascertain if they contain any pieces of bone, and a fish bone lurking in fish chowder, about the ingredients of which there is no other complaint, does not constitute a breach of implied warranty under the Uniform Commercial Code.”

After noting the defendant’s exhortation that “this court knows well that we are not talking of some insipid broth as is customarily served to convalescents” and quoting Daniel Webster’s recipe for fish chowder in a footnote, the Court observed:

“It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks upon a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds.”

Not only is the case noteworthy for its prose, but it also has been incorporated into law school contracts classes from coast to coast. Note the Google results.

The opinion is only available via subscription legal research sites, but anyone desiring a complete copy may leave a request in the comments and I will reply with atttachment. Please enjoy reading of this delightful bone of contention.

8 Comments

  • Is there any court, anywhere in America, that would find for the defendant on a case like this today?

  • “While she was eating the chowder, a fish bone became lodged in her throat…”

    But if they took the bones out, it wouldn’t be crunchy! (Stop me before I reference Monty Python again!)

  • Kent,

    Sure… which is why the lawyers will make sure to find a way to sue in a different jurisdiction.

  • According to my citing history, there are only three cases in the country that declined to follow the rule or called it into question — they are in the states of Minnesota, Delaware and Illinois.

    The Webster case applies what is called the “foreign-natural” test, which has been discussed at length in contracts classes and articles for decades. That the rule is still followed broadly is a testament to its common sense.

  • That’s bad lawyering? The Federal Food, Drug, and Cosmetic Act (Title 21 of the US Code) states that food is adulterated if it is ‘ordinarily injurious’. I think most juries would agree that fish bones are injurious.

  • Er, what’s bad lawyering Dusty? The case was decided in 1964. One would suppose that the federal government has had more than enough time to spoil a good rule since then.

    But even today I wouldn’t expect a fair minded jury to find that a bowl of fish chowder with a bone in it is “ordinarily injurious.”

  • I don’t remember much from law school back in the early 1980s’, but Professor Tom Bergin taught us to spell “minuscule” correctly.

  • Thank you for your important contribution, Tom. Plese see this.