Fleetwood v. Swift & Co.
| Decision Date | 24 October 1921 |
| Docket Number | 12246. |
| Parties | FLEETWOOD v. SWIFT & CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A retailer or one acting as the mere distributor to the retail trade of a food product contained in 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; but in an action against either the retailer or the distributor, upon proof of such an injury and that the product was handled by the defendant, he is required to show his own diligence to the extent that he had in good faith purchased the merchandise from a reputable dealer, distributor, or manufacturer, as an article reasonably sound and safe for the use intended. Especially would this be true where the package containing the product fails to disclose the identity of the manufacturer or packer responsible for the quality and condidition of the product. Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga.App. 43, 102 S.E. 542 (3); Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App 762, 73 S.E. 1087.
The plaintiff having brought a common-law action for damages on account of the alleged negligence of the defendant in packing and distributing the food product, and not having set up or invoked the criminal provisions of the state "pure food law," nor alleged any acts constituting a violation thereof, the case must be tried and determined upon the basis of the issues raised by the evidence under the pleadings, and the plaintiff cannot be permitted in his exceptions to go outside of the issues to which he is thus confined. Flessher v. Carstens Packing Co., 81 Wash. 241, 142 P. 694; Hoffman v. Watkins, 78 Wash. 118, 138 P 664; Acres v. Frederick & Nelson, 79 Wash. 402, 140 P. 370.
Additional Syllabus by the Editorial Staff.
Printing on a package of butter, whereby defendant professed to act as distributor of such brand of butter and guaranteed the correctness of the weight when packed, cannot be construed as an adoption by the defendant of the product as its own so as to render it liable for a deleterious condition of the butter, if acquired in good faith from a reputable manufacturer.
Error from Superior Court, Colquitt County; W. E. Thomas, Judge.
Action by O. L. Fleetwood against Swift & Co. Judgment for defendant, and plaintiff brings error. Reversed.
Dowling & Askew, of Moultrie, for plaintiff in error.
Hill & Gibson, of Moultrie, for defendant in error.
JENKINS P.J. (after stating the facts as above).
It is the contention of the defendant that the nonsuit was proper on the theory that, since the defendant in its answer has denied that it manufactured or packed the shipment, and since, as he contends, the plaintiff's evidence shows that the defendant was but the mere distributor of the merchandise, the defendant could not be held liable for any negligence, since it could not be the duty of a mere distributor to open up, cut into, and inspect the sealed packages; and it is urged that, without doing so, there could manifestly be nothing to indicate the deleterious nature of the contents of the sealed packages. We agree in...
To continue reading
Request your trial