Armour & Co. v. Miller
| Decision Date | 06 February 1929 |
| Docket Number | 19021. |
| Citation | 147 S.E. 184,39 Ga.App. 228 |
| Parties | ARMOUR & CO. v. MILLER. |
| Court | Georgia Court of Appeals |
Adhered to on Rehearing February 28, 1929.
Syllabus by the Court.
In a suit for damages against the manufacturer of a food product who, it is alleged, negligently permitted the food as prepared and furnished to the retail dealer to become contaminated and putrid, so that it was rendered deleterious and injurious for human consumption, and in fact injured by its consumption the plaintiff, the ultimate purchaser of the product, the provisions of what is known as the Pure Food Law (Civil Code of 1910, § 2103 (5), and of the similar federal statute, prohibiting the adulteration of food products, are not applicable, where the contention is not that the defendant had adulterated the product by adding some deleterious foreign substance to the normal constituency of the product for the purpose of selling it as a part of the product itself, but where the charge is confined to the negligence of the defendant in allowing the normal ingredients of the product to become putrid and unwholesome.
In such a suit the manufacturer is not an insurer of his product, and in an action against him the plaintiff must allege and prove either willful misconduct or negligence in allowing the product to become unwholesome.
In pleading his case the plaintiff must set forth wherein the defendant was negligent, and a mere general averment that he was negligent in furnishing an unwholesome food product will not be sufficient. While the doctrine res ipsa loquitur may in a proper case, be invoked as a rule of evidence to aid in proving the case as laid, it cannot be relied upon as an aid to defective pleadings.
The special demurrer attacking the allegations of the petition with reference to the alleged violation of the state and federal pure food laws should have been sustained. Likewise the grounds of the special demurrer complaining of the failure of the plaintiff to allege when, where, and by whom the product was sold to the retailer from whom the plaintiff purchased the portion eaten by him, and where the transaction between the plaintiff and the retailer took place, were well taken, and the plaintiff should have been required to amend to meet such objections, in order that the defendant might be enabled to exculpate itself, if it could, from the negligence complained of. The remaining grounds of the special demurrer are without merit.
In the instant case a particular act of negligence, alleged to have caused the injury, was set forth in the petition, and consequently the petition was not subject to demurrer on account of such deficiency.
Error from City Court of Albany; Clayton Jones, Judge.
Action by J. M. Miller against Armour & Co. Judgment for plaintiff and defendant brings error. Reversed.
Bennet & Peacock, of Albany, for plaintiff in error.
P. D. Rich, of Bainbridge, H. G. Rawls, of Donalsonville, and S. B. Lippitt, of Albany, for defendant in error.
JENKINS, P.J. (after stating the facts as above).
1. It does not appear that the allegations with reference to the state and federal pure food laws have any actual bearing upon the case as laid. The instant case is not one of adulteration; it is one of negligence, in the preparation and handling of food products. The purpose and intent of subsection 5 of section 2103 of the Civil Code of 1910, and of the very similar provisions of the federal statute mentioned in the petition, was to define what was meant by adulteration as prohibited by the statute, and the particular subsection 5 of the Code section refers to any "added poisonous or other added deleterious ingredient which may render such article injurious to health." As was said by Judge Sanford (who has since become a member of the Supreme Court of the United States) in the case of United States v. Forty Barrels, etc. (D. C.) 191 F. 431, in discussing the very similar provisions of the federal statute: "I am constrained to conclude that the use of the word 'added' as applied to poisonous and deleterious ingredients in articles of food other than confectionery, *** cannot be regarded as meaningless." "It was intended to provide *** that any articles of food manufactured and sold in this country in interstate commerce should not be deemed to be adulterated merely because it contained a poisonous or deleterious ingredient, except in the case of confectionery, but that all other articles of food whether simple or compound were not to be deemed adulterated on account of the presence of a poisonous or deleterious ingredient unless such ingredient was 'added' to the article of food in question, that is, was an ingredient foreign to its natural or normal constituency." In other words, considering the instant case, the defendant is not charged with selling something as sausage which was not sausage. It is not charged with adulterating sausage by adding a foreign and deleterious substance to be sold as sausage which was in fact not sausage. The charge is that the defendant was negligent in selling sausage which was in fact sausage, but which by reason of the defendant's negligence contained putrid matter such as to render the product unwholesome in the manner described.
2. The plaintiff in error insists that since a manufacturer is not an insurer of the purity and wholesomeness of his food products, the petition must show that some particular agent of the defendant knew that the product contained unwholesome matter, or must show wherein and in what particular respect the defendant was negligent. Counsel rely strongly upon the ruling of the Supreme Court in Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695, 50 S.E. 974, in which it was held:
The defendant in error relies largely upon the decisions of this court in McPherson v. Capuano, 31 Ga.App. 82, 121 S.E. 580, as followed in Copeland v. Curtis, 36 Ga.App. 255, 136 S.E. 324, and also contends that the petition is sufficient in that it alleges that the defendant was guilty of negligence per se in violating the stated sections of the state and federal pure food laws in permitting the tainted and impure substance to become mixed with the other contents of the package. It will be noted that in the McPherson Case and in the Copeland Case the question involved was not whether the petition was good as against demurrer, but whether or not the doctrine res ipsa loquitur, as a rule of evidence, could make out the case as laid. It is recognized in both of these cases that a manufacturer is not an insurer of his food products. That such is the rule is plainly indicated by the provisions of section 4460 of the Civil Code of 1910 relative to actions against one who "knowingly or carelessly" sells unwholesome food products. It is only in proving his case that a plaintiff may invoke the doctrine of res ipsa loquitur. See, also, in this connection, Rowe v. L. & N. Railroad Co., 29 Ga.App. 151, 113 S.E. 823.
3. In accordance with what has been said, the case narrows down to whether or not the petition, which is attacked both by general and special grounds of demurrer, specifically charges negligence on the part of the defendant such as would render unwholesome the food product purchased by the plaintiff. For not only is it true that a manufacturer is not an insurer of his food products, and that negligence on the defendant's part must be alleged, but, when required to do so, the plaintiff must set forth what the negligence consisted of, so that a mere general averment that the defendant was negligent in furnishing unwholesome food will not suffice. In the Hudgins Case, supra, the petition alleged merely that a bottle of Coca-Cola exploded on account of the negligence of the defendant in improperly manufacturing the Coca-Cola and putting it in a defective bottle. It was in no wise alleged wherein the bottle was defective, or why the improper manufacture of the Coca-Cola was such as to cause it to explode. If in the Hudgins Case there had been allegations setting forth the character of the bottle, such as to indicate subnormal strength, or allegations setting forth the presence in the Coca-Cola of a substance such as would supply an excessive and dangerous expansive quality, the petition would have been good. Payne v. Rome Coca Cola Bottling Co., 10...
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