144 S.E.2d 468 (Ga.App. 1965), 41387, Ray v. Deas

Docket Nº:41387.
Citation:144 S.E.2d 468, 112 Ga.App. 191
Opinion Judge:FRANKUM, Judge.
Party Name:J. D. RAY v. Marguerite F. DEAS.
Attorney:[112 Ga.App. 193] Harris, Russell & Watkins, Macon, for plaintiff in error. Melton, McKenna & House, Andrew W. McKenna, Macon, for defendant in error.
Judge Panel:BELL, P. J., and HALL, J., concur.
Case Date:September 08, 1965
Court:Court of Appeals of Georgia
 
FREE EXCERPT

Page 468

144 S.E.2d 468 (Ga.App. 1965)

112 Ga.App. 191

J. D. RAY

v.

Marguerite F. DEAS.

No. 41387.

Court of Appeals of Georgia, Division No. 3.

September 8, 1965

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 582 S.E.2d 470

[112 Ga.App. 193] Harris, Russell & Watkins, Macon, for plaintiff in error.

Melton, McKenna & House, Andrew W. McKenna, Macon, for defendant in error.

Syllabus Opinion by the Court

FRANKUM, Judge.

1. 'Any person who knowingly or carelessly sells to another unwholesome provisions of any kind, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or his family, shall be liable in damages for such injury.' Code § 105-1101. It has been held, in applying the principles enunciated by this Code section, that one who negligently furnishes food or drink containing a foreign substance which causes injury or damage to the consumer thereof may be held liable therefor. Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A.,N.S., 1178; Bailey v. F. W. Woolworth, Inc., 106 Ga.App. 264, 126 S.E.2d 686. Count 1 of the petition which alleges that the plaintiff was customer of the defendant restaurateur; that the defendant served or delivered to the plaintiff a hamburger sandwich; that the plaintiff, while in the act of consuming the sandwich, sustained an injury when she bit into a hard unyielding substance contained in the sandwich which broke one of her teeth, and thereby resulted in specified damages to her; that the defendant was negligent in failing to properly inspect the ingredients of the sandwich, and that this negligence was the proximate cause of the plaintiff's injuries and damages sued for, stated a cause of action as against the defendant's

Page 469

general demurrer filed thereto. In a case of this kind actual knowledge on the part of the defendant of the presence in the food of the thing or quality which results in damage to the plaintiff is not essential, provided the plaintiff alleges and proves negligence on the part of the defendant in preparing the food. In such a case as against a general demurrer, mere general averments [112 Ga.App. 192] of negligence are sufficient. Yeo v. Pig & Whistle Sandwich Shops, 83 Ga.App. 91, 96(1), 62 S.E.2d 668. Count 1 of the petition stated a cause of action against the defendant, and the trial court did not err in...

To continue reading

FREE SIGN UP