Armour & Co. v. Gulley

• Decision Date: 26 September 1939
• Docket Number: 27560.
• Citation: 6 S.E.2d 165,61 Ga.App. 414
• Court: Georgia Court of Appeals
• Parties: ARMOUR & CO. v. GULLEY.

6 S.E.2d 165

61 Ga.App. 414

ARMOUR & CO. v. GULLEY.

No. 27560.

Court of Appeals of Georgia, Division No. 1.

September 26, 1939

Rehearing Denied Dec. 18, 1939.

Syllabus by the Court.

A S. Skelton, of Hartwell, for plaintiff in error.

J H. & Emmett Skelton and Carey Skelton, all of Hartwell for defendant in error.

GUERRY Judge.

The plaintiff, Gulley, alleged that Armour & Company were engaged in the business of manufacturing and selling a certain product known as "Armour's Potted Meat," which was packed in cans containing three and one-half ounces, and that such cans were sold to retailers to be resold by them in the original packages; that plaintiff purchased a can of said product from a retailer and that in said can was a "quantity unknown to plaintiff, of impure tainted, poisonous, deleterious and unwholesome matter which was negligently permitted by defendant manufacturer to become mixed with the contents of the can." The plaintiff alleged further that he had theretofore been in good health; that he ate the contents of said can and within an hour he became violently ill from food poisoning from the eating of such can of meat, with resultant damage; that he had no reason to suspect such food was unfit for human use and that the same tasted and appeared to be wholesome and fit to eat; and that the defendant was negligent in permitting such food to be placed on the market and in allowing such harmful ingredients to become ingredients of such food.

The evidence of the plaintiff was that before this time he had been a perfectly normal man. He had had two attacks of appendicitis, the last of which being about four years before that time. He had dysentery on the Saturday before the Sunday he ate the potted meat, "but I didn't have it bad *** I had to go out three or four times, I don't know what caused that dysentery *** I went out twice on Sunday before dinner *** I don't know whether I got completely over it or not." He stated that on Sunday morning he ate a normal breakfast and then for the noon meal he had ham, string beans and chocolate cake. About an hour before dark he ate the can of potted meat and gave a little of it to two small boys. Within an hour he became very sick, first became thirsty, and when he sat down his legs drew up under him with pains in his stomach, head, and legs. About eight o'clock he was carried to a doctor and he was still suffering. The doctor gave him some medicine and a shot in the arm. He was carried home but got no better and another doctor was sent for and he was given apa morphia in the arm and after vomiting he went to sleep. He was weak and faint for several days and did not recover fully until nearly three weeks later. The doctor who treated him last said he found his stomach distended, his legs stiffened, and his tongue coated, and apparently "poisoned or something." Paralysis of the legs is one of the symptoms of food poisoning as well as are diarrhoea and distension of the bowels.

This doctor, a witness for the plaintiff, testified that "distension of the bowls is caused by the formation of gases from eating any food that might go through a process of fermentation." A healthy man eating normal food is not likely to have a distension. He said further "It is possible if you are in a bilious condition eating any food that is prepared in a wholesome manner, free from taint and putrefaction, when taken into the stomach under those conditions would produce the same situation in which I found Mr. Gulley." He stated further that he could not say that the eating of the potted meat was a contributing factor of Mr. Gulley's condition; it was possible that a general toxic condition would have caused it. In answer to the direct question propounded by counsel for plaintiff, "If the plaintiff in this case, Mr. Gulley, ate a normal dinner at the noon hour, such as beans, meat, and some chocolate pie, and the other members of the family ate the same food, but the other members of the family did not eat any potted meat, and the other members of the family did not get sick from the noon meal, and the plaintiff, after the noon meal, ate the potted meat and got sick and was sick after the noon meal six or seven hours, which would you say caused the poisoning?" the doctor answered: "It could have been the condition of the stomach had something to do with it. You see cases in families who eat the same diet and some get sick and some do not; the condition of the patient has something to do with it. I could not say whether it was attributable in part to the noon meal or the later eating of the potted meat as the cause of the condition."

There was no evidence of anything unusual about the meat the plaintiff ate which would cause him to suspect that there was anything wrong with it; it appeared normal in every way. The grocer who sold the can to the plaintiff testified that it was a part of a case containing 48 cans which he sold to various other customers, and he and his own family consumed eight or ten cans of it, and no other complaints were made. The defendant introduced testimony which, if credible, tended to show that in the selection of the animals and their preparation into food products, such as in this case, the greatest of care was used under government inspection and supervision, and that these cans which were sold to plaintiff were, after they were sealed, cooked for one and one quarter hours under pressure at a temperature of 240 degrees Fahrenheit. An expert bacteriologist testified that no germs could live after having been subjected to such a temperature for fifteen minutes, and that if decomposition or deterioration had set in in such can before it was opened it would have evidenced itself, and that a can of meat which, when opened, appeared normal in every way, had not suffered from decomposition or disorder such as would cause sickness to a person eating the same.

In order to support a verdict in this case it is necessary that the plaintiff show that the defendant prepared and placed on the market food which when eaten would cause sickness and that as a result of his buying and eating such food he became sick. The preparation and sale of the potted meat were admitted. Defendant denied any negligence in the preparation of said food and alleged that the food was good and fit for human consumption. The evidence relied on to support the verdict is the fact that the plaintiff ate the food and became sick. It is contended that the evidence is sufficient to show that the potted ham which he ate caused his sickness, and that it caused his sickness...