Eschew the Insipid Broth
Our last post, and Helen Ducal’s comment, reminded me of a sterling example of a judge’s literary acumen.
There was a time when many judges took great pride in the literary quality of the opinions they authored. In this opinion, Justice Reardon engages in a sort of rhetorical swordsmanship with the defendant’s lawyer that displays more than mere legal acuity.
The subject matter of the lawsuit involved a woman who choked on a fish bone in her chowder. The crux of the issue was whether a restaurant must remove all fish bones from its chowder, or should the chowder customer fend for herself?
There are the facts as stated by Justice Reardon:
On Saturday, April 25, 1959, about 1 p.m., the plaintiff, accompanied by her sister and her aunt, entered the Blue Ship Tea Room operated by the defendant. The group was seated at a table and supplied with menus.
This restaurant, which the plaintiff characterized as “quaint,” was located in Boston “on the third floor of an old building on T Wharf which overlooks the ocean.”
The plaintiff, who had been born and brought up in New England (a fact of some consequence), ordered clam chowder and crabmeat salad. Within a few minutes she received tidings to the effect that “there was no more clam chowder,” whereupon she ordered a cup of fish chowder. Presently, there was set before her “a small bowl of fish chowder.” “The fish chowder contained haddock, potatoes, milk, water and seasoning. The chowder was milky in color and not clear. The haddock and potatoes were in chunks” (also a fact of consequence). “She agitated it a little with the spoon and observed that it was a fairly full bowl . . . . It was hot when she got it, but she did not tip it with her spoon because it was hot . . . but stirred it in an up and under motion. She denied that she did this because she was looking for something, but it was rather because she wanted an even distribution of fish and potatoes.” “She started to eat it, alternating between the chowder and crackers which were on the table with . . . [some] rolls. She ate about 3 or 4 spoonfuls then stopped. She looked at the spoonfuls as she was eating. She saw equal parts of liquid, potato and fish as she spooned it into her mouth. She did not see anything unusual about it. 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.
The discreet legal issue the Court was to decide:
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.
That would seem to be a rather mundane examination in the hands of another justice. But not Reardon. He turns to the brief of the restaurant owner’s counsel, himself no oratorical slouch:
The defendant asserts that here was a native New Englander eating fish chowder in a “quaint” Boston dining place where she had been before; that “[f]ish chowder, as it is served and enjoyed by New Englanders, is a hearty dish, originally designed to satisfy the appetites of our seamen and fishermen”; that “[t]his court knows well that we are not talking of some insipid broth as is customarily served to convalescents.” We are asked to rule in such fashion that no chef is forced “to reduce the pieces of fish in the chowder to miniscule size in an effort to ascertain if they contained any pieces of bone.” “In so ruling,” we are told (in the defendant’s brief), “the court will not only uphold its reputation for legal knowledge and acumen, but will, as loyal sons of Massachusetts, save our world-renowned fish chowder from degenerating into an insipid broth containing the mere essence of its former stature as a culinary masterpiece.”
You see why I specialize in appellate brief writing? You can still get away with this sort of thing, in moderation.
Reardon appreciated the defendant’s position, extolling the long history of fish chowder up to the plaintiff’s namesake, Daniel Webster , who “had a recipe for fish chowder which has survived into a number of modern cookbooks 2 and in which the removal of fish bones is not mentioned at all.” Oh-oh, Priscilla.
After a full two pages of chowder history, citing cookbooks and other culinary treatises, Reardon reaches his zenith:
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 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….
Certain Massachusetts cooks might cavil at the ingredients contained in the chowder in this case in that it lacked the heartening lift of salt pork. In any event, 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….
Thus, while we sympathize with the plaintiff who has suffered a peculiarly New England injury, the order must be
Exceptions sustained. Judgment for the defendant.
This case was decided in 1964, when common sense still informed our courts.
Those wishing to read the entire opinion can visit Home of Goats, another aficionado of fish chowder.
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