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The principle which governs in this case is that every one ought to know the qualities, good or bad, of the things which he fabricates in the exercise of the art, craft or business of which he makes public profession, and that lack of such knowledge is imputed to him as a fault, which makes him liable to the purchasers of his fabrications for the damage resulting from the vices or defects thereof which he did not make known to them and which they were ignorant of. The principle obtains both in the civil and the common law.'

"Such principle is sound in itself, but was inapplicable to the case at bar. In Shaffer vs. Willoughby, in the Supreme Court (163 Ill., 518; 34 L. R. A., 464), it was held that in order to recover damages from the keeper of a restaurant for injuries resulting from unwholesome food served by him it must appear that there was negligence on his part, and that the mere fact of the eating of the food and the consequent sickness is not sufficient to make a prima facie case of negligence' 'against the restaurant keeper, nor to shift the burden upon the latter to establish due care.' "The notes in 34 L. R. A., 464 and 480, 40 L. R. A. (N. S.) collate what authority there is on the subject. In our judgment the Illinois court is correct in requiring in order to render a restaurant keeper liable that negligence on his part shall be established. The tendency of recent decisions has been, while holding manufacturers of articles containing concealed defects liable to the ultimate purchaser or consumer, although there be no privity of contract, to exempt an intermediary or retail dealer who is himself free from negligence from responsibility for injury (see editorial in this journal for June 14, 1912, and cases cited). This distinction was indeed practically applied to an immediate furnisher of food articles in Bigelow vs. Maine Cent. R'y, in the Supreme Judicial Court of Maine (85 Atl., 896). It was held that a carrier of passengers is not an insurer of the quality of canned goods furnished on its dining cars, and where it serves canned goods of a high brand, sold by a reliable dealer, guaranteed under the Pure Food Law (Act June 30, 1906, chap. 3915, 34 Stat., 768, U. S. Comp. St. Supp., 1911, p. 1354), and without defect discoverable to the eye, smell or taste, it is not liable for injuries to a passenger eating the goods, which are poisonous.

"In the same manner if articles purchased by a restaurant keeper have nothing in their appearance or odor to suggest impurity, it does not seem proper that he should be held liable because of occult possibilities of developing ptomaine poisoning in the customer. The mere fact of the eating of food and subsequent illness is not sufficient to make a prima facie case of negligence, because if one affected with ptomaine poisoning has patronized several restaurants during the previous forty-eight hours he should not be permitted to pick out the one which for any reason, or no reason, he suspects, and place upon its proprietor the burden of showing that his food was wholesome, or that he had not been negligent. If, however, there is an indisputable identification of food eaten in a particular place with subsequent infection, the rule res ipsa loquitur might not improperly be applied, the circumstances of the procurement of the food and any precautions observed being peculiarly and entirely within the defendant's knowledge.”

EXTERMINATION OF MOSQUITOES.

For some years past, the Department of Health has sought by the drainage of marsh lands to rid certain localities in the City's suburbs of mosquitoes. It has usually attempted to compel the owners of land in the mosquito infested districts to perform this work and to sustain the expense. This method of procedure, however, requires a great deal of time and effort, for it is often only with the greatest difficulty that the names of the owners are ascertained, and in many cases the land in question has changed ownership many times. It is less than ten years ago that the effort to exterminate mosquitoes was regarded largely as a joke. At the present time it has acquired general commendation, the only question in certain instances being its feasibility. Apart from the fact that the mosquito is a great annoyance and by its presence prevents the appreciation of property values, it is now generally understood, not only by the medical profession but by the public at large, that the mosquito transmits at least two diseases, yellow fever and malaria. In so far as yellow fever is concerned, it may be said that New York City is not especially interested, for the particular species of mosquito that transmits it does not exist at present in this vicinity. The variety responsible for the transmission of malaria is, however, moderately prevalent. In accordance with a resolution adopted by the Board of Health March 11, 1913, the Board of Aldermen were petitioned to request the Board of Estimate and Apportionment to authorize the Comptroller to issue special revenue honds in the sum of $66,400 for the purpose of enabling the Department of Health adequately to maintain and extend the work of mosquito extermination in the Boroughs of The Bronx, Brooklyn, Queens and Richmond: In the Boroughs of The Bronx

DEPARTMENT OF HEALTH.

Report for Week Ending March 22, 1913.

PROHIBITION OF THE USE OF "SOAP BARK" IN SODA WATER, ETC.

The average person who drinks soda water, sarsaparilla, cream soda, root beer and other so-called "soft" drinks, probably imagines, if he gives any thought to the matter, that the creamy, deep foam which tops his glass results naturally from the liberation of the carbonic acid gas therein contained. Such, unfortunately, is frequently not the case; the foam, especially when deep, white and creamy, being sometimes produced artificially by the addition of a substance known as "soap bark," various preparations of which are upon the market. "Soap bark" is poisonous and markedly so, its toxic principle being sapotoxin. On this account, the Department of Health has determined to prohibit its use and henceforth if the cheaper grades of soda water, etc., do not present so attractive an appearance as heretofore they will, at least, exercise no detrimental effect upon the community. On March 17, Commissioner Lederle issued the following bulletin through the press:

"It has come to the knowledge of the Department of Health that a preparation of soap bark (Saponine) is used quite commonly in this country in the preparation of soda water, in some kinds of "soft" drinks, and in fillings used by bakers. Soap bark contains a poisonous substance and this department considers the use of a soap bark extract or of commercial saponine in foods or food preparations in any quantity whatever an injurious adulteration and prohibits its use.

"The Inspectors of Food will be instructed to notify food dealers of this determination of the department and any cases of its further use will be criminally prosecuted."

This is the first of a series of official bulletins which the Commissioner plans to issue from time to time, defining the attitude of the Department of Health on specific food questions.

LIABILITY OF RESTAURANT KEEPER FOR FURNISHING DELETERIOUS FOOD.

Under this caption, the New York Law Journal of February 10, 1913, quotes some recent decisions and makes some editorial comments, as follows:

"The doctrine has been frequently laid down that a seller of provisions intended for human food impliedly warrants the soundness of the articles sold. The decisions to this effect apply the ordinary rule governing manufacture or sale for a particular purpose. On March 13, 1912, we contended that the principle so far as recognized at all should apply to the sale of articles of food for animals as well as men, although a distinction between the two classes of foodstuffs has been drawn in some cases. In Wiedeman vs. Keller (58 Ill. App., 382), a case in which recovery for damages against the vendor of pork alleged to have been affected with trichina was denied, it was said in the opinion that there are many authorities holding that when the vendor has no notice, and could not by the exercise of reasonable or ordinary care, have ascertained the existence of the unwholesome or unsound condition, there is no implied warranty of the soundness of provisions not prepared or manufactured by the seller (Benjamin on Sales, secs. 670, 671, 672, note 17, page 629, Amer. ed. of 1888; Schouler on Personal Property, sec. 348; 10 Amer. and Eng. Ency, of Law, 155; Emmerton vs. Mathews, 7 Exchequer, 585; Craft vs. Parker, 96 Mich., 245; Buckingham vs. Plymouth Water Co., 142 Penn, 221; Wright vs. Hart, 18 Wend., 464; Moses vs. Mead, 1 Denio, 378).

"Such limitation of liability should certainly be recognized with regard to restaurant keepers and it would seem that the Supreme Court of Louisiana went too far in Doyle vs. Fuerst & Kraemer (129 La., 838; 40 L. R. A., N. S., 480). It was held that the keeper of a public place where food is served is bound to know that the articles sold are fresh and fit for human consumption and is liable in damages for injury due to their vitiated and deleterious character.' The alleged injuries to plaintiff were sustained through ptomaine poisoning contracted from eating cakes and chocolate with whipped cream at defendant's confectionery establishment. In the course of the opinion it is remarked:

The principle which governs in this case is that every one ought to know the qualities, good or bad, of the things which he fabricates in the exercise of the art, craft or business of which he makes public profession, and that lack of such knowledge is imputed to him as a fault, which makes him liable to the purchasers of his fabrications for the damage resulting from the vices or defects thereof which he did not make known to them and which they were ignorant of. The principle obtains both in the civil and the common law.'

In

"Such principle is sound in itself, but was inapplicable to the case at bar. Shaffer vs. Willoughby, in the Supreme Court (163 Ill., 518; 34 L. R. A., 464), it was held that in order to recover damages from the keeper of a restaurant for injuries resulting from unwholesome food served by him it must appear that there was negligence on his part, and that the mere fact of the eating of the food and the consequent sickness is not sufficient to make a prima facie case of negligence' 'against the restaurant keeper, nor to shift the burden upon the latter to establish due care.' "The notes in 34 L. R. A., 464 and 480, 40 L. R. A. (N. S.) collate what authority there is on the subject. In our judgment the Illinois court is correct in requiring in order to render a restaurant keeper liable that negligence on his part shall be established. The tendency of recent decisions has been, while holding manufacturers of articles containing concealed defects liable to the ultimate purchaser or consumer, although there be no privity of contract, to exempt an intermediary or retail dealer who is himself free from negligence from responsibility for injury (see editorial in this journal for June 14, 1912, and cases cited). This distinction was indeed practically applied to an immediate furnisher of food articles in Bigelow vs. Maine Cent. R'y, in the Supreme Judicial Court of Maine (85 Atl., 896). It was held that a carrier of passengers is not an insurer of the quality of canned goods furnished on its dining cars, and where it serves canned goods of a high brand, sold by a reliable dealer, guaranteed under the Pure Food Law (Act June 30, 1906, chap. 3915, 34 Stat., 768, U. S. Comp. St. Supp., 1911, p. 1354), and without defect discoverable to the eye, smell or taste, it is not liable for injuries to a passenger eating the goods, which are poisonous.

"In the same manner if articles purchased by a restaurant keeper have nothing in their appearance or odor to suggest impurity, it does not seem proper that he should be held liable because of occult possibilities of developing ptomaine poisoning in the customer. The mere fact of the eating of food and subsequent illness is not sufficient to make a prima facie case of negligence, because if one affected with ptomaine poisoning has patronized several restaurants during the previous forty-eight hours he should not be permitted to pick out the one which for any reason, or no reason, he suspects, and place upon its proprietor the burden of showing that his food was wholesome, or that he had not been negligent. If, however, there is an indisputable identification of food eaten in a particular place with subsequent infection, the rule res ipsa loquitur might not improperly be applied, the circumstances of the procurement of the food and any precautions observed being peculiarly and entirely within the defendant's knowledge."

EXTERMINATION OF MOSQUITOES.

For some years past, the Department of Health has sought by the drainage of marsh lands to rid certain localities in the City's suburbs of mosquitoes. It has usually attempted to compel the owners of land in the mosquito infested districts to perform this work and to sustain the expense. This method of procedure, however, requires a great deal of time and effort, for it is often only with the greatest difficulty that the names of the owners are ascertained, and in many cases the land in question has changed ownership many times. It is less than ten years ago that the effort to exterminate mosquitoes was regarded largely as a joke. At the present time it has acquired general commendation, the only question in certain instances being its feasibility. Apart from the fact that the mosquito is a great annoyance and by its presence prevents the appreciation of property values, it is now generally understood, not only by the medical profession but by the public at large, that the mosquito transmits at least two diseases, yellow fever and malaria. In so far as yellow fever is concerned, it may be said that New York City is not especially interested, for the particular species of mosquito that transmits it does not exist at present in this vicinity. The variety responsible for the transmission of malaria is, however, moderately prevalent. In accordance with a resolution adopted by the Board of Health March 11, 1913, the Board of Aldermen were petitioned to request the Board of Estimate and Apportionment to authorize the Comptroller to issue special revenue bonds in the sum of $66.400 for the purpose of enabling the Department of Health adequately to maintain and extend the work of mosquito extermination in the Boroughs of The Bronx, Brooklyn, Queens and Richmond. In the Boroughs of The Bronx

and Queens, several parcels of land are still undrained, the most notable and most complained of, perhaps, being Pelham Bay Park in The Bronx. In the Borough of Brooklyn very little progress has been made. The work of mosquito extermination has been constantly performed in the Borough of Richmond and, at the present time, is progressing favorably, but it would be greatly accelerated by the employment of additional laborers who, divided into squads of about ten men each, could cover widely separated areas and by draining and oiling could make Staten Island virtually immune from mosquito breeding. If the appropriation requested be granted, it can be confidentially predicted that the mosquito campaign, conducted before extensive breeding has taken place, will accomplish most satisfactory results.

Application for appropriations for this work in the several boroughs was made at the time of the Budget hearings last fall, but the Budget of 1913 allowed funds only on the restricted basis of the work in 1912. Much interest has lately been manifested in the extension of the Department's activity in this field, and application has accordingly been made for a special appropriation. The Finance Committee of the Board of Aldermen will consider the request on Monday, March 24.

RELATIVE DIMINUTION IN THE REDUCTION OF INFANT MORTALITY.

During the month of January, 1913, the decrease in infant mortality did not maintain the same proportions as compared with the same month in 1912. The Babies Welfare Association has issued the following warning to the workers interested in the reduction of infant mortality:

"During the month of January there were 1,251 deaths of babies under one year of age from all causes in the Greater City, as against 1,285 in January, 1912. This is an average decrease of about eight a week as compared with last year. If this average is maintained throughout the year, there will be a little over 400 fewer infant deaths in 1913 than in 1912, only about half as great a reduction as was made in 1912, and only about one-third the record of 1911. An especial need of warning is indicated by the fact that diarrhoeal diseases, in which we formerly have made our biggest decreases, are killing more babies so far this year than last.

"It, therefore, behooves the workers everywhere to increase their activities. Every effort should be made to get more babies into the milk stations. It is most encouraging to note in this connection that there has been an increase of over a thousand in such attendance since the first of the year, and that such increase is largely among the Board of Health stations.

"Hospitals can help particularly in this direction if they will refer their convalescent baby cases to the milk stations, where they can be kept well."

MORTALITY OF THE WEEK.

There were 1,685 deaths reported during the week ending March 22, 1913, with a death rate of 16.36 per 1,000, as against 1,534 deaths with a rate of 15.47, an increase of 92 deaths, if the increase in population be taken into consideration over the cor responcing week of 1912. The increased mortality is due to the continued presence of the influenza epidemic, which has shown itself by an increased mortality since the middle of February, but the effect of which is now beginning to wane. Pneumonias, both broncho and lobar, show an increase of 42 deaths, this increase being directly due to the influenza bacillus action upon the respiratory mortality-indirectly it is probably also accountable for the increase of 35 deaths among the organic heart diseases, and 13 deaths among the organic kidney diseases. The mortality from the acute communicable diseases was about the same as during the corresponding period of 1912, with the exception of whooping cough, which showed an increase of nine deaths. The mortality among children was lower by 14 deaths, that among adults from 5 to 65 years higher by 99 deaths, and at 65 years and over higher by 66 deaths. The death rate for the first twelve weeks of 1913 was 15.78, as against 15.60 for the corresponding period of 1912, an increase of 18 of a point.

VITAL STATISTICS

Summary for Week Ending Saturday, 12 M., March 22, 1913.

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Corrected according to borough of residence.

↑ The presence of several large institutions, the great majority of whose inmates are non-residents of the city, increases considerably the death-rate of this Borough. Deaths by Principal Causes, According to Locality and Age.

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Week Ending. Dec.

Tuberculosis...

Diphtheria

Dec. Jan. Jan. Jan. Jan. Feb. Feb Feb. Feb. Mar. Mar. Mar. Mar.

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318

365 332
338

295 497 483
338 280

456

465

446 369 539

526 561

397

470

338 342 367

355 367

498 669 323 313

Measles

454 459 473

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412 298 395 551 463

283 304

268

Total...... 1,636 1,436 1,534 1,991 1,933 1,991 2,127 1,790 1,773 2,090 2,462 2,509 2,610 2,634

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