Donaldson v. Great Atlantic & Pacific Tea Co.

• Decision Date: 27 September 1938
• Docket Number: 12360.
• Citation: 199 S.E. 213,186 Ga. 870
• Parties: DONALDSON v. GREAT ATLANTIC & PACIFIC TEA CO. et al. [*]
• Court: Georgia Supreme Court

199 S.E. 213

186 Ga. 870

DONALDSON v. GREAT ATLANTIC & PACIFIC TEA CO. et al. ^[*]

No. 12360.

Supreme Court of Georgia

September 27, 1938

Rehearing Denied Oct. 15, 1938.

Certified Questions from Court of Appeals.

Action by Mrs. J. S. Donaldson against Great Atlantic & Pacific Tea Company and others for injuries resulting from the consumption of alleged unwholesome food purveyed by the defendant. To review an adverse judgment, the plaintiff brought error to the Court of Appeals which certified questions to the Supreme Court.

Questions answered.

Syllabus by the Court.

1. The present case is before this court on questions certified by the Court of Appeals. It is an action to recover damages for injuries sustained by the use of an article of food sold by the defendant as a dealer in groceries and meats. The first question is answered in the affirmative, that the allegations of the petition as stated in the question were sufficient to show a violation of the provisions of the pure-food statute prohibiting the sale of adulterated food as defined in the Code, § 42-109(7).

2. The definition of adulterated food as stated in the foregoing section is not limited to food sold or delivered in sealed packages. The second and third questions are answered in the affirmative.

3. In such an action for damages, where under the pleadings and the evidence it is made to appear that the defendant violated the pure-food statute in that the food sold to the plaintiff was adulterated within the meaning of that law, it is not essential to a recovery that the defendant should be shown to have had knowledge of the impurity of the food or to have been wanting in ordinary care, in the sense of negligence as a matter of fact, in connection with its sale. The fourth and last question is answered in the negative.

The Court of Appeals certified the following questions in this case:

'1. In the petition, in a suit against a retailer of groceries and meats, it is alleged that the defendant sold some pig's liver to the plaintiff's daughter, which on the same day was cooked and eaten by her family, all of whom became suddenly ill on the following morning; that at the time of being sold the liver was in a deleterious and unwholesome condition, was contaminated by infectious matter and was in a decomposed condition and unfit for food, and poisoned the plaintiff; and that the defendant was negligent in not inspecting the liver, in holding it out as fresh and wholesome when it was not fit for human use, in not warning the plaintiff's daughter or the plaintiff of the unwholesome condition of the liver, and in selling to her daughter for human consumption the liver in the unwholesome condition described, 'which was a violation of the State law.' Is the petition containing these allegations sufficient to authorize a recovery as for a violation by the defendant of a statutory duty resting upon him as contained in the provisions of the purefood law of this State in the Code, §§ 42-109, 42-115, 42-9901 making it a violation of law for him to sell an article of food in the unwholesome and deleterious condition described in the above allegation of the petition?

'2. Is liver, which is not in a sealed package but is in the condition described in the petition, an 'adulterated' article under the Code, § 42-109(7)?

'3. Is food, which is not in a sealed package and which is subject to full inspection by the retailer, such food as is contemplated in the Code, § 42-109(7)?

'4. When a retailer who sells food of the kind described in the petition, without having taken a guaranty as to its condition in terms of section 42-115 of the Code, from the wholesaler from whom he bought it, is it necessary in order for him to be liable to a person made sick by eating the food, for him to have knowledge of the impurity of the food, or to have been wanting in ordinary care in connection with its sale?'

Burress & Dillard and Hewlett & Dennis, all of Atlanta, for plaintiff in error.

Hairsch & Smith, A. S. Clay, and E. P. Rogers, all of Atlanta, for parties at interest, not parties to record.

Bryan, Middlebrooks & Carter, of Atlanta, for defendants in error.

BELL Justice.

The sections of the Code referred to in the foregoing questions were all taken from the act of the General Assembly approved August 21, 1906, commonly known as the pure-food and drug act. Ga.L.1906, p. 83. It appears from the caption and other portions of this act that it had the purpose, among others, of preventing adulteration, misbranding, and imitation of foods sold and intended for human consumption, under penalties for its violation. Section 4 contained several subsections, defining adulteration. This section is now contained in the Code, § 42-109. So far as material in this case, it is declared by this section that an article of food shall be deemed to be adulterated: '7. If it consists in whole or in part of a filthy, decomposed, or putrid animal * * * or any portion of an animal unfit for food, whether manufactured of not.' Section 42-115, derived from section 6 of the original act, is as follows: 'No dealer shall be prosecuted under the provisions of this Title when he shall establish a guaranty signed by the wholesaler, jobber, manufacturer, or other party residing in this State, from whom he purchases such articles, to the effect that the same are not adulterated or misbranded within the meaning of this Title, designating them. Said guaranty, to afford protection, shall contain the name and address of the party, making the sale of such articles to such dealer, and in such case the said party shall be amenable to the prosecutions, fines, and other penalties which would attach, in due course, to the dealer under the provisions of this law.' Section 42-9901, taken from section 1 of the act, declares that any person violating any of the provisions of this statute shall be guilty of a misdemeanor, and prescribes penalties. The act of 1906 from which the foregoing provisions of the Code were taken is purely a criminal statute, and does not purport to give a right of action to individuals. There is, however, another law (Code, § 105-1101) which provides as follows: 'Any person who knowingly or carelessly sells to another unwholesome provisions of any kind, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or his family, shall be liable in damages for such injury.' The provisions of this section have been carried in all of the Codes of this State, beginning with the Code of 1863, § 2945. This section refers to private rights, and is based on common-law principles; although it may not state the basis of liability precisely as it existed at common law; that is, whether it was negligence or breach of implied warranty. Any variance, however, is not material in the present inquiry, and for convenience we may refer to this section as stating the common-law rule. Compare Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100; Temple v. Keeler, 238 N.Y. 344, 144 N.E. 635, 35 A.L.R. 920; Nisky v. Childs Co., 103 N.J.L. 464, 135 A. 805, 50 A.L.R. 227; F. W. Woolworth Co. v. Wilson, 5 Cir., 74 F.2d 439, 98 A.L.R. 681; Cushing v. Rodman, 65 App.D.C. 258, 82 F.2d 864, 104 A.L.R. 1023; 26 C.J. 751, 783; 11 R.C.L. 1094, 1119.

We proceed now to a consideration of the first question propounded. It appears that the petition alleged that the defendant, a retailer of meats, sold 'some pig's liver to the plaintiff's daughter, which on the same day was cooked and eaten by [the plaintiff's family], all of whom became suddenly ill on the following morning; that at the time of being sold the liver was in a deleterious and unwholesome condition, was contaminated by infectious matter and was in a decomposed condition and unfit for food, and poisoned the plaintiff; and that the defendant was negligent in not inspecting the liver, in holding it out as fresh and wholesome when it was not fit for human use, in not warning the plaintiff's daughter or the plaintiff of the unwholesome condition of the liver, and in selling to her daughter for human consumption the liver in the unwholesome condition described, 'which was a violation of the State law.'' The question is whether these allegations were 'sufficient to authorize a recovery as for a violation by the defendant of a statutory duty resting upon him, as contained in the provisions of the pure-food law of this State.' Code, §§ 42-109, 42-115, 42-9901. Since the 'pure food law' is only a criminal statute and contains nothing to authorize an action for damages by an individual, we would be compelled to answer this question in the negative if it should be understood to inquire whether the plaintiff's action could be construed as founded upon this law. The suit, however, appears to be a common-law action for damages resulting from negligence, in which the plaintiff, though relying partly on both the old and the new law, does so only for the purpose of showing a breach of duty, or negligence. At common-law the suit would be termed an action of trespass on the case, which is 'an action for the recovery of damages, for acts unaccompanied with force, and which in their consequences only are injurious.' Hendrick v. Cook, 4 Ga. 241, 260; 28 Am. & Eng.Enc.L. 614; 45 C.J. 716, § 99. Seemingly, it is this general form of action to which the Code refers in the following provision: 'When the law requires one to do an act for the benefit of another, or to forbear the doing of that which may injure another, though no action be given in express terms, upon the accrual of damage the injured party may recover.' § 105-103. It is not uncommon in actions for negligence for the plaintiff to allege various breaches of duty as...