Davis v. Williams

• Decision Date: 24 June 1938
• Docket Number: 26772.
• Citation: 198 S.E. 357,58 Ga.App. 274
• Parties: DAVIS v. WILLIAMS et al.
• Court: Georgia Court of Appeals

198 S.E. 357

58 Ga.App. 274

DAVIS v. WILLIAMS et al.

No. 26772.

Court of Appeals of Georgia, First Division

June 24, 1938

Rehearing Denied July 21, 1938.

On Motion for Rehearing.

Syllabus by the Court.

1. It is the general rule that if food or coca-cola, a beverage represented to be harmless and refreshing, has been sold and has been proved unfit for use, and has been the direct cause of the injury to the health of the plaintiff, the fact alone of selling bad food, or coca-cola, with visible particles of glass therein should be sufficient to raise a presumption of negligence and make out a prima facie case. Barnowski v Helson, 89 Mich. 523, 50 N.W. 989, 15 L.R.A. 33; Fox v. Spring Lake Iron Co., 89 Mich. 387, 50 N.W. 872; Craft v. Parker, Webb & Co., 96 Mich. 245, 55 N.W 812, 21 L.R.A. 139; Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A.,N.S., 1178, 110 Am.St.Rep 157; Race v. Krum, 222 N.Y. 410, 118 N.E. 853 L.R.A.1918F, 1172.

2. There is an exception to this general rule which has been stated by this court as follows: "A retailer, or one acting as the mere distributor to the retail trade, of a food product contained in [perfect appearing] unbroken packages as put up by and procured from a reputable dealer, distributor, or manufacturer, is not prima facie liable in damages to a consumer for injuries occasioned by a deleterious condition of the product, since he could not in the exercise of ordinary diligence be expected to open for inspection the individual packages thus prepared by another." Fleetwood v. Swift & Co., 27 Ga.App. 502, 108 S.E. 909.

3. Even though there was no express warranty, yet, if the package does not appear perfect, there may be circumstances, such as are alleged in this case, where, upon proof of the allegations of the petition, the jury would be authorized to find that the dealer was negligent for a failure to detect, even in a sealed package of food, imperfections which are capable of being detected without opening the package; as where the sealed package and its reasonably observable contents presented such an imperfect appearance that the dealer, in the practical handling of the coca-cola, on account of the transparency of the bottle and its contents, the amount and character of the glass contained therein and the circumstances attendant upon the sale thereof, could have known in the exercise of reasonable care that the glass was in the coca-cola.

4. We can not rule, in effect, that retail dealers, as a matter of law, are not liable for imperfections in provisions sold in sealed packages, put up by and procured from a reputable manufacturer, regardless of whether or not such imperfections could (ought to) have been discovered by the use of reasonable care on the part of the dealer. Whether the action be one on warranty or negligence, it comes to the same thing. It sounds in tort.

5. The duty in this case on the part of the dealer in food (coca-cola) sold for immediate consumption is different from the duty of the buyer. It is a jury question whether it was the duty of the dealer to know or whether he ought, in the exercise of reasonable care, to have known. Whereas the duty of the buyer arises only after knowledge and there is no duty to know. "Even if it be conceded that under the allegations of the petition both the plaintiff and the defendant were negligent in failing to exercise the duty which the law imposed upon them respectively, the court could not say as a matter of law that the plaintiff's injuries were due solely to his failure to exercise ordinary care rather than to the defendant's negligence." Collins v. Augusta-Aiken Ry. & Electric Corp., 13 Ga.App. 124, 129, 78 S.E. 944.

6. The court erred in sustaining the general demurrers.

Error from Superior Court, Bacon County; M. D. Dickerson, Judge.

Suit by R. L. Davis against W. L. Williams, trading as Dixie Service Stores, and another for injuries received from drinking a bottled beverage. To review a judgment sustaining general demurrers to the petition, plaintiff brings error.

Reversed.

BROYLES, C.J., dissenting.

Highsmith & Highsmith, of Baxley, and I. J. Bussell, of Alma, for plaintiff in error.

Wilson, Bennett & Pedrick, of Waycross, for defendants in error.

MacINTYRE Judge.

R. L. Davis brought this suit against W. L. Williams trading as Dixie Service Stores (hereinafter referred to as the dealer), and the Waycross Coca-Cola Bottling Company (hereinafter referred to as the manufacturer), for the recovery of damages by reason of injuries received from drinking of the contents of a bottle of coca-cola which contained particles of glass. W. L. Williams is a resident of Bacon County and operates a retail store there in which coca-cola is sold. The Waycross Coca-Cola Bottling Company, having its principal office and place of business in Waycross, Ware County, Georgia, and having no legal residence in Bacon County, is engaged in the bottling business and sold and delivered to W. L. Williams the bottle of coca-cola from which the plaintiff received his injury. The defendants were sued as joint tort-feasors in the superior court of Bacon County. The petition in part alleges: "The said drink known as coca-cola is bottled and sold in glass bottles of uniform size about 8 inches high, about 2 inches round and contains about 8 fluid ounces. The bottles are closed with metal caps fitted over the mouth of the bottle. The said substance is light wine colored and the bottle and contents are transparent. When served the cap is removed from the bottle and [the bottle is] handed to the customer and the contents usually drank from the bottle. On the occasion in question the coca-cola served the plaintiff was in an inclosed transparent glass bottle and the contents of the usual kind. Said product is put up and sold in very large quantities in glass bottles and the manufacturers and dealers, including the defendants, know at all times that there is danger of broken pieces of glass getting into and being in the bottles. Before the cap is removed from the bottle, the bottle may be readily turned up and any foreign substances therein, such as glass or other like substances, readily detected. After the cap is removed this can not be done conveniently without spilling the contents. Although of necessity knowing of the danger of glass in particular getting into and being in said bottles, and although the slightest inspection of said bottle by merely inverting same before uncapping would have disclosed said particles of glass in said bottle of coca-cola, said defendant dealer, his said agents and employees, negligently and carelessly opened said bottle and served same to plaintiff to be drunk by plaintiff as a wholesome and refreshing beverage fit for human consumption without making said inspection or any other inspection of same and without making any effort to see, as may readily have been done, that said bottled beverage contained particles of glass, was unwholesome, and unfit for human consumption. After said bottle was uncapped by said dealer, his said servants and agents, and served to plaintiff to drink, it was not practicable for the plaintiff to then turn same up and inspect same before drinking, inverting the bottle being the most dependable and certain method of detecting glass or like substances in said bottle. Said product being one where there was danger of glass being in the bottle, and same being so put up and bottled as to make same readily discoverable by the dispenser by so inspecting the bottle before opening and not so discoverable by the consumer by the use of ordinary care after being opened and served to him all of which was well known to said dealer, his agents and employees, in the exercise of ordinary care and diligence were in duty bound to make said inspection and which would have disclosed said particles of glass in said drink and a failure to do which, along with the negligence of said manufacturer, was the direct and proximate cause of petitioner's said injury and damage."

The question for the determination of this court is whether there is a cause of action set out in the plaintiff's petition against the retailer dealer. The suit was brought against joint tort-feasors, the retail dealer, a resident of the county where the suit was brought, and the manufacturer, a resident of a different county. If the petition fails to set forth a cause of action against the local retailer and was properly dismissed as to him, then the demurrer of the manufacturer, raising the question of jurisdiction over it should have necessarily been dismissed. "It is a general rule, supported by the decided weight of authority, that, upon the retail sale of articles of food by a dealer directly to the consumer for domestic use and for immediate consumption, the laws implies a warranty that such articles are sound and wholesome. Such is the rule of the common law, and it is strengthened rather than impaired by the more modern decisions. * * * The same rule prevails under the civil law." Flessher v. Carstens Packing Co., 93 Wash. 48, 160 P. 14, 16. The early rules of law were formulated upon the theory that the dealers, having an opportunity to observe and inspect the appearance and quality of food products they offered to the public, were accordingly charged with knowledge of their imperfections. No knowledge of the original or present contents of a perfectly appearing can is possible in the practical use of canned products. They can not be chemically analyzed every time they are used. Accordingly, the reason for the rule having ceased, a new rule should be applied to the use and sale of goods in perfectly appearing sealed cans and unbroken packages that will more nearly harmonize with what is rational and just. Bigelow...