Yeo v. Pig & Whistle Sandwich Shops

• Decision Date: 04 December 1950
• Docket Number: No. 33034,No. 2,33034,2
• Parties: YEO v. PIG & WHISTLE SANDWICH SHOPS, Inc
• Court: Georgia Court of Appeals

Page 668

62 S.E.2d 668

83 Ga.App. 91

YEO v. PIG & WHISTLE SANDWICH SHOPS, Inc.

No. 33034.

Court of Appeals of Georgia, Division No. 2.

Dec. 4, 1950.

Rehearing Denied Dec. 20, 1950.

SYLLABUS BY THE COURT.

1. Under the allegations of the petition, alleging that the defendant served the plaintiff unwholesome food which he ate and which resulted in his injury and that the defendant was negligent in serving unwholesome food, the petition set forth a cause of action as against general demurrer.

2. The allegations in the petition that the defendant knew or ought to have known of the unwholesome quality of the food were mere conclusions in the absence of any facts to show why or how the defendant knew of the unwholesome character of the food served the plaintiff.

In an action for damages brought by L. S. Yeo against The Pig and Whistle Sandwich Shops, incorporated, the material allegations of the petition were substantially as follows: 2. The defendant has damaged the plaintiff in the amount of $15,000 because of injuries inflicted upon the plaintiff in pain and suffering from food poisoning through unwholesome food negligently served the plaintiff by the defendant and $1000 in special damages inflicted upon the plaintiff. 3. The defendant is and was engaged in the restaurant business. 4. On December 7, 1948, the plaintiff entered the defendant's place of business at about six o'clock in the evening for the purpose of eating his dinner there. 5. The plaintiff ordered and ate a meal consisting of pork chops, mashed potatoes, vegetable greens and vegetable salad with dressing. He drank buttermilk. He did not eat any dessert. The food which the defendant served the plaintiff was spoiled, unwholesome, deleterious, and unfit for human consumption and by reason thereof, the plaintiff was subjected to grave illness and pain and suffering. The defendant was negligent in serving such food, and knew, or ought to have known, of its unwholesome character so as to prevent the injuries caused the plaintiff by such food. The plaintiff did not know at the time he ate said food and could not have known of its unwholesome character. 6. The plaintiff finished eating the meal at about 6:45 o'clock at the defendant's restaurant. 7. During the remainder of the day, the plaintiff ate nothing further. 8. The plaintiff had had no food or drink that day between the time of his normal noonday meal and the meal eaten at the defendant's restaurant. 9. The plaintiff's noonday meal and his breakfast prior to the meal eaten at the defendant's restaurant was eaten at the usual times and consisted of the usual foods though the plaintiff does not recall exactly of what these meals consisted. 10. The plaintiff had felt perfectly well and normal and in the best of health at all times on the day in question until after he had eaten the meal in the defendant's restaurant. 11. About 45 minutes or an hour immediately following the eating of the meal in the defendant's restaurant, the plaintiff began to feel violently ill and nauseated and the feeling became so acute that the plaintiff had to be assisted from his office to his home at about 8:00 o'clock on the evening on which he had eaten the meal in question. Paragraphs 12 through 29 consisted of allegations giving in detail a description of, and symptoms of, the illness alleged to have resulted from eating the meal in question, together with an account of the progress of the illness, the medication received, and the effects of the illness upon the plaintiff. 30. The unwholesome and deleterious food served to the plaintiff was the direct, efficient, proximate, and procuring cause of the plaintiff's suffering, illness, and injuries. 31. The defendant was negligent in serving to the plaintiff such unwholesome, deleterious and harmful food for the defendant knew or ought to have known of the conditions and the unwholesome character of such food. 32. The plaintiff has been damaged in the amount of $15,000 by the great and indescribable physical pain and suffering and mental anguish inflicted upon him by the negligence of the defendant in supplying him with the unwholesome and deleterious food which was the direct and proximate cause of his injuries and damages. 33. One thousand dollars is prayed as special damages for doctor's bills, medication, etc.

The defendant filed a general demurrer to the petition, which it withdrew in open court, and twenty grounds of special demurrer. All of the special demurrers were overruled except grounds 7 and 8, demurring to paragraph 5 of the petition, and grounds 17 and 18, demurring to paragraph 31 of the petition. These demurrers were as follows: '7. Defendant specially demurs to the allegation of paragraph 5 of the petition 'and knew, or ought to have known, of its unwholesome character as aforesaid, so as to prevent the injuries caused plaintiff by such food' on the ground that the same is a conclusion of the pleader unsupported by sufficient allegations of fact. 8. Defendant demurs to the allegation of paragraph 5 of the petition 'and knew, or ought to have known, of its unwholesome character as aforesaid, so as to prevent the injuries caused plaintiff by such food' on the ground that the same fails to set forth how or in what way defendant knew or ought to have known of the unwholesome character of the food.' Grounds 17 and 18 of the demurrer were essentially the same as the foregoing grounds and made essentially the same objections to essentially the same language in paragraph 31 of the petition. These special grounds were sustained with leave to the plaintiff to amend within twenty days in default of which paragraphs 5 and 31 were to be stricken. The plaintiff excepted pendente lite to this ruling sustaining these grounds of the demurrer; and, subsequent to the time within which the plaintiff had leave to amend, and the plaintiff having failed to amend, the defendant filed its general demurrer to the petition which was sustained, and the petition was dismissed. The exceptions here are to the sustaining of special demurrers 7, 8, 17, 18 and to the sustaining of the general demurrer and dismissal of the petition.

Miller & Head, Atlanta, for plaintiff in error.

Moise, Post & Gardner, Atlanta, for defendant in error.

MacINTYRE, Presiding Judge.

1. Let us say from the beginning that, from a consideration of the allegations of the petition, we do not construe the petition as having been brought upon the theory that negligence per se is shown by a violation of the Pure Food Law, Code, § 42-101 et seq. See in that connection, Donaldson v. Great Atlantic & Pacific Tea Co., 186 Ga. 870, 199 S.E. 213, 128 A.L.R. 456; Armour & Company v. Miller, 39 Ga.App. 228, 147 S.E. 184; Southern Grocery Stores, Inc. v. Donehoo, 59 Ga.App. 212, 200 S.E. 335. There is no allegation that the food was adulterated or made unwholesome by the addition of putrid or deleterious matter. Nor do we construe the petition as having been brought upon the theory of an implied warranty as to the wholesomeness of the food under the provisions of Code, § 96-301, for the petition expressly alleges negligence upon the part of the defendant. See in that connection Maddox Coffee Co. v. Collins, 46 Ga.App. 220, 167 S.E. 306. And, whether it is the better rule to hold a restaurateur, who furnishes unwholesome food to a person to such person's damage, liable to such person for negligence and/or for breach of an implied warranty to furnish wholesome food, as held in most of the jurisdictions today (see Cushing v. Rodman, 65 App.D.C. 258, 82 F.2d 865, 104 A.L.R. 1023; Amdal v. Woolworth, D.C., 84 F.Supp. 657, 658, for excellent discussions on the subject; and 7 A.L.R.2d 1027; 18 N.C.C.A.,N.S., 573, for complete annotations), it is settled in Georgia that a restaurateur furnishing unwholesome food to one who is injured thereby is not liable upon the theory of a breach of an implied warranty. Rowe v. Louisville & Nashville R. Co., 29 Ga.App. 151, 113 S.E. 823, 825, and see F. W. Woolworth Co. v. Wilson, 74 F.2d 439, 98 A.L.R. 681, in which Judge Sibley, speaking for the Circuit Court of Appeals (Fifth Circuit), cites and relies upon the Rowe case, supra.

In the Rowe case it is said that at common law there was no implied warranty of the quality of food furnished by a restaurant keeper to a customer for immediate consumption since the transaction was considered not to constitute a sale but the rendition of a service, but, the court went on to say, 'even conceding that under the changed conditions of the present day the owner of a restaurant * * * does sell the food which his customer orders and eats and that the...