Bailey v. F. W. Woolworth, Inc.

• Decision Date: 15 June 1962
• Docket Number: No. 39384,No. 1,39384,1
• Citation: 126 S.E.2d 686,106 Ga.App. 264
• Parties: A. L. BAILEY v. F. W. WOOLWORTH, INC
• Court: Georgia Court of Appeals

Page 686

126 S.E.2d 686

106 Ga.App. 264

A. L. BAILEY v. F. W. WOOLWORTH, INC.

No. 39384.

Court of Appeals of Georgia, Division No. 1.

June 15, 1962.

Rehearing Denied July 6, 1962.

Syllabus by the Court

1. The evidence contained in the plaintiff's deposition was not uncertain or contradictory and shows a substantial issue as to a material fact to be determined which had to be submitted to the jury. Code Ann. § 110-1203.

2. There appears in the record evidence from which the jury could find negligence on the part of the defendant.

The plaintiff's action against the defendant was brought in tort to recover for injuries sustained as a result of eating foods purchased from the defendant and consumed on its premises. The petitioner alleged that she had gone to defendant's lunch counter and had eaten pie and ice cream; that immediately after eating the last of the pie some foreign substance became lodged in her throat, causing pain, bleeding and retching to result; that the defendant was negligent in failing to maintain proper and adequate quality control; in supplying a food product in an unwholesome and dangerous condition; in failing to store the food product to prevent it from becoming mixed and contaminated by deleterious matter; in advertising, warranting and selling articles as pure and wholesome, when they were unfit for human consumption; in failing to warn the public of the dangerous condition of the product; in failing to inspect to determine the condition of the food; and in failing to maintain adequate supervision of manufacturing, mixing, baking, storing and handling of food products in violation of Code § 105-1101, which provides that the sale of unwholesome provisions by a person who knowingly or carelessly sells such, shall make the seller liable for damages for injuries where the defect is unknown to the purchaser or his family.

The defendant filed a motion for summary judgment and offered in support of the motion extracts from the plaintiff's deposition.

After hearing the trial judge granted the motion for summary judgment.

To this grant of the motion for summary judgment the plaintiff excepted.

Robert J. Duffy, John W. Hendrix, Savannah, for plaintiff in error.

Bouhan, Lawrence, Williams, Levy & McAlpin, Frank W. Seiler, Kirk McAlpin, Savannah, for defendant in error.

BELL, Judge.

1. Extracts from the plaintiff's deposition which appear in the record reveal that the plaintiff ordered, at the defendant's lunch counter, apple pie, ice cream and coffee; that as she ate the last piece of crust, and swallowed the last of the coffee together, she had a sensation of having a spasm in her throat and tried to cough; that she immediately went to the ladies room with blood squirting through her hand and the napkin she was holding to her mouth; that she was cut and choking; that she was taken to the public health hospital but the two doctors on duty there could not find anything in her throat; that she went to the Central of Georgia Hospital where the doctor made X-rays and looked in her throat; that she still had a cutting in her throat; that the doctor stated that if glass was present it would not show up on the X-ray; that she stayed in the hospital, was helped upstairs by a nurse; and when she was preparing to go to bed she vomited up a good bit of glass.

Following this detailed testimony of several pages recounting her various examinations by numerous doctors, the deposition contains this language:

'Q. Did they ever find the thing that was in your throat? A. I haven't seen anything. 2. To your knowledge you don't know if there was anything? A. No. Q. Do you know of anyone who has ever seen it? A. No.'

The answer to the first quoted question, whether the doctors found...