A patron sued a deli for breach of warranty of fitness and for negligence, alleging that he was poisoned by the food he ate at the deli, causing him to be hospitalized for a period of one week and to have his stomach pumped.
As part of its defense, the deli’s counsel called the manager of the deli. The manager was asked how many bean dinners he served on the day the patron took ill. He answered, “200.” He was then asked how many complaints he received. Upon objection by the patron’s counsel, the question was excluded. After a verdict for the patron, the deli appealed, alleging error in the exclusion of the question by the trial judge.
The appellate court should:
A. Uphold the trial judge, because the question called for the hearsay opinion of the 200 diners that the beans were wholesome as shown by their failure to complain to the manager.
B. Uphold the trial judge, because of the deli’s failure to make an offer of proof.
C. Reverse the trial judge, because the offered testimony is not hearsay.
D. Uphold the trial judge, because the exclusion of the evidence, even though wrong, constituted harmless error.
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