Criswell Baking Co v. Milligan

• Citation: 50 S.E.2d 136
• Decision Date: 14 October 1948
• Docket Number: Nos. 32103, 32104.,s. 32103, 32104.
• Parties: CRISWELL BAKING CO. v. MILLIGAN (two cases).
• Court: Georgia Court of Appeals

50 S.E.2d 136

CRISWELL BAKING CO.

v.MILLIGAN (two cases).

Nos. 32103, 32104.

Court of Appeals of Georgia, Division Nos. 1, 2.

Oct. 14, 1948.

Rehearing Denied Nov. 11, 1948.

Syllabus by the Court.

1. These cases grew out of the same transaction, they were tried together, and the evidence is equally applicable to either case, and the fact that the same brief of evidence, that is in form and content, was used in each case does not render such brief ineffective as not being a brief of the evidence as required by law. Besides, the ground of the motion to dismiss not having been raised in the trial court, it cannot for the first time be raised in this court. Consequently, the motions to dismiss the writs of error are without merit and are denied.

2. The description of the substance contained in the pie, by the use of the language "that defendant was negligent in permitting said putrid, tainted, impure, deleterious, unwholesome, and poisonous substance to become an ingredient of said product" and similar language was sufficient to put the defendant on notice of the nature and what caused the illness of, and damage to the plaintiffs, and the assignments of error on the orders overruling the special demurrers in each case are without merit.

3. The degree of care required of the defendant under the facts in the present cases was ordinary care; and the use by the court of the words "due care" in charging the jury, instead of the words "ordinary care", was not error.

(a) Due care is defined as "that care which an ordinarily prudent person would have exercised under the circumstances."

(b) Ordinary diligence is defined as "that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances."

(c) Due care, ordinary care, and ordinary diligence are interchangeable terms.

4. The charge of the court in these cases that "where either plaintiff might establish the unwholesome quality of the food and establish-injury to the plaintiff from its consumption, and establish thatthe food as consumed by them was in the same condition as when it left the custody, possession and control of the defendant, these facts in themselves would sufficiently set forth defendant's negligence and make out a prima facie case, and * * * the burden would he upon the defendant to show that the defendant used due care in the premises" was not error against the defendant, under the pleadings and facts of these cases.

5. Special ground 4 of each of the motions for new trial is without merit.

6. No harmful error is shown by ground 5 of the motions.

7. The trial court did not err in failing to give the requests to charge as complained of in grounds 6, 7, 8, and 9 of the motions.

8. The verdict of $2000.00 in favor of W. A. Milligan was not excessive.

9. The verdict in favor of the plaintiff in each case was authorized by the evidence; no error of law appears, and the court did not err in overruling the defendant's motion for a new trial in each of these cases.

FELTON and GARDNER, JJ., dissenting in part.

Error from Superior Court, Fulton County; Frank A. Hooper, Judge.

Actions by W. A. Milligan and by Mrs. W. A. Milligan against the Criswell Baking Company to recover for injuries allegedly sustained as result of eating a pie baked by the defendant. To review judgments for the plaintiffs, the defendant brings error.

Judgments affirmed.

W. A. Milligan filed this action against the Criswell Baking Company in Fulton Superior Court, seeking to recover damages for personal injuries as a result of eating a portion of a pie prepared and baked by the defendant company, and sold by it to a retail grocer, who in turn had sold the pie to the plaintiff. Mrs. W. A. Milligan, wife of the above named plaintiff, filed a similar action against the same defendant for injuries caused by eating a portion of the same pie. The two cases were tried together in the lower court, but separate verdicts and judgments were rendered, and separate motions for new trial were filed, and the assignments of error here are identical, with the exception of one additional ground in the motion for a new trial in the case of W. A. Milligan, and they will be considered together by this court.

In both petitions it was alleged that W. A. Milligan had purchased a custard pie, covered with nuts, from Harry Barnes, a retail grocer, on May 17, 1947, and that the plaintiff in each case had eaten a portion of this pie on the following day and as a result had become immediately ill; (6) "that in purchasing said pie, he relied upon the legal duty of defendant not to impose upon the customers of its product and the general public by baking, packing and putting on the market an impure, tainted, deleterious and unwholesome article of food unfit for human consumption, and that defendant was negligent in permitting said putrid, tainted, impure, deleterious, unwholesome and poisonous substance to become an ingredient of said product and putting the same on the market for sale to the public and allowing the same to be sold to the public;" (9) "that contained in said pie packed as aforesaid was a quantity unknown to him (her) of impure, tainted, putrid, deleterious and unwholesome matter, which was negligently permitted by said defendant to become mixed with the other contents of the pie;" (10) "that defendant was negligent in permitting said putrid, tainted, impure, deleterious, unwholesome and poisonous substance to become an ingredient of its product and in putting the same on the market for sale to the public, knowing that the same was to be used for human food, and allowing the same to be sold to the public." Recovery was sought by each plaintiff for past, present, and future pain and suffering, and in addition W. A. Milligan alleged "that since being poisoned he has been unable to do any work of any kind whatsoever, and that prior to being poisoned he was earning from $40.00 to $50.00 per week as an employee of the Fulton Bag & Cotton Mills."

The defendant filed identical demurrers to each of the petitions and in the first paragraph thereof contended that the use of the language "that defendant was negligent in permitting said putrid, tainted, impure, deleterious, unwholesome, and poisonous substance to become an ingredient of said product" was (a) a conclusion of the pleader, unsupported by fact, (b) and that the substance alleged to be putrid, etc., was not named or sufficiently described, (c) and that the allegations were vague, indefinite and not specific enough to put the defendant on notice of the identity of the substance. Two other paragraphs of the demurrers were based on the same objections to similar language elsewhere in the petitions, which had been used in describing the substance contained in the pie which caused the illness, and the only other paragraphs of the demurrers were addressed to the use of the language "who has advised and believes that it will be many months, if ever, before he (she) completely recovers from the effects thereof" on the grounds that the same was not a proper subject matter of pleading, being merely a recital of what a physician believes and had advised each of the plaintiffs.

The defendant's demurrers to the petitions were overruled, exceptions pendente lite to these judgments were filed, and the cases proceeded to trial. The defendant in its answers denied the material allegations of the petitions, except as to the jurisdiction of the court.

From the brief of evidence, which is identical in each case, the following appears. On May 14, 1947, some butterscotch chiffon pies containing flour, brown sugar, whole eggs, shortening, cornstarch and egg whites, granulated sugar, vanilla and maple flavoring, and sprinkled with pecans, were prepared by the Criswell Baking Company, for delivery to retailers on May 15th. These pies were prepared under the supervision of James Alfred Langley, an experienced baker, under sanitary conditions, and the ingredients were furnished by reputable firms. They were placed on paper plates and packed in paper boxes. C. W. Hopkins, a salesman employed by the defendant, secured the pie in question, which was a butterscotch chiffon pie, from the storeroom of defendant's bakery, and without removing it from its container, or changing it in any way, delivered it to Harry Barnes, a retail grocer, on Friday afternoon, May 16th, and it was placed on the counter with other pies. On Saturday morning, May 17th, W. A. Milligan purchased the pie, carried it to his home a short distance away, and placed it in his refrigerator, where it remained until Sunday, May 18th. Between 11:00 and 1:00 o'clock on Sunday it was taken from the refrigerator, divided into four pieces, and W. A. Milligan ate two pieces, Mrs. W. A. Milligan ate one piece, and Charles Kidd, a guest in their home, ate the fourth piece. This took place about three hours after the plaintiffs had eaten breakfast, and no other food had been eaten by either in the meantime. After eating the pie Mrs. Milligan became sick, began vomiting, and about an hour after eating the pie went to bed. W. A. Milligan went into the bedroom to fan Mrs. Milligan, and while fanning her with a paper he fell to the floor and lost consciousness. Both of the plaintiffs and their guest, who also became ill, were then carried to Grady Hospital by a neighbor, this being around 2:30 or 3:00 o'clock in the afternoon. They were given treatment, and W. A. Milligan and Mrs. Milligan were brought home the same evening. W. A. Milligan did not regain consciousness until after he returned home from the hospital, and he was unconscious for a period of about six hours. For four days thereafter he was unable to work at his regular job at the Fulton Bag and Cotton Mills, where he was employed as an oiler and worked eight hours per day at $.93 per hour. According to the testimony of Dr. Samuel A. Green, both of the plaintiffs were his patients, and came to his office for the first time on June 2,...