Floyd v. Swift & Co.
| Decision Date | 05 December 1938 |
| Docket Number | 27128. |
| Citation | 200 S.E. 531,59 Ga.App. 154 |
| Parties | FLOYD v. SWIFT & CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Under the law and the evidence the court did not err in directing a verdict for the defendant.
Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.
Action by Albert Floyd against Swift & Co. for damages resulting from illness caused by eating unwholesome food purchased from defendant. To review an adverse judgment, plaintiff brings error.
Judgment affirmed.
Roy B Rhodenhiser, Jr., of Macon, for plaintiff in error.
Jones Russell & Sparks, of Macon, for defendant in error.
Albert Floyd brought an action against Swift & Company alleging in his petition that the defendant manufactured and packed in a metal container a meat product known as "sausage packed in oil," and placed it on the market to be sold and used as human food; that a can of the sausage and oil weighing 17 pounds was sold to the Cochran Grocery Company, a wholesaler who would sell it to a retail grocer who would break the seal on the can and sell the contents in small quantities to its customers for human food; that on September 1, 1936, a retail merchant at Danville, Georgia, purchased the can from the grocery company and broke the seal to offer the sausage for sale to his customers, that on September 5, 1936 the plaintiff, who boarded with the retail merchant, ate some of the sausage for breakfast, and in about an hour and a half or two hours after eating it he became very ill of ptomaine poisoning, vomiting numerous times and swooned to unconsciousness and remained unconscious for several minutes, that the plaintiff became sick from eating the sausage which was tainted, unwholesome, poisonous, putrid, and contained ptomaines, that his illness was due to the defendant's negligence for the reason that in the can was a quantity of impure, tainted, poisonous, deleterious, and unwholesome matter which was permitted by the defendant to become mixed with the other contents of the can, that the defendant packed the sausage in a metal container which was unsuited for the purpose in that a protective coating or lining on the inside of the can was too thin and absent in many places, and bits of metal were allowed to become mixed with the contents of the can; that the defendant knew, or by the exercise of ordinary care could have known, of the condition of the can and of the sausage and was negligent in permitting the putrid, tainted, impure, deleterious, unwholesome, and poisonous substance to become an ingredient of the product and in putting the same on the market for sale to the public. Other allegations in the petition need not be recited.
The defendant filed an answer in which it was alleged that the sausage was not sold by it as ordinary non-perishable canned meats are sold, but as any other fresh meat is sold, that is, that the same were to be consumed while still fresh or preserved as ordinary fresh meats are preserved by proper refrigeration, that printed in large letters on the can was the phrase and that its only contemplation in making the sale to the grocery company was that the grocery company would keep the sausage under refrigeration before its resale to the retailer, and that the retailer would, upon breaking the seal and offering the contents for sale, keep the same under refrigeration just as said retailer would keep any other fresh meat which he might have on hand for sale, that the retailer after breaking the seal on the can on September 1, left the same open and unprotected in his store, and made no effort to place the same under any kind of refrigeration at a time when the weather was hot and the natural conditions were such that any fresh meat not refrigerated would probably become affected by bacteria and spoiled, that at the time the sausage was sold to the grocery company it was pure and wholesome and contained no deleterious substance, and if the sausage at the time it was eaten was tainted, unwholesome, poisonous, putrid and contained ptomaine, all such conditions were produced altogether by the negligence of the retailer in failing to refrigerate the sausage, and in handling and keeping it in the manner stated, or by the negligence of the retailer, in conjunction with the negligence of other persons who had no connection with the defendant and for whose acts the defendant is not liable. Other allegations in the answer need not be recited.
"On the trial of the case both parties introduced evidence, at the conclusion of which the court directed a verdict for the defendant, and the plaintiff excepted. The only issues were as to the cause of the s a u s a g e becoming contaminated, and whether the illness of the plaintiff was caused by the negligence of the defendant or by some act not attributable to it. The evidence showed substantially the following facts: The sausage was made from wholesome meat, and was properly canned in oil by modern, scientific methods, and it was not shown that the sausage was in any way contaminated or rendered unfit for human consumption before the can or container was opened, on September 1, 1936, by a country merchant to whom it had been sold. It was shown that the merchant opened the can in his country store, in which there were flies and mice, and that the weather at that time was very warm, ranging in temperature from 85 degrees Fahrenheit maximum, on September 1, 1936, to 93 degrees Fahrenheit maximum, on September 5, 1936. It was shown that the can bore a label on which was printed, but that the storekeeper did not, after opening the can, keep the sausage under refrigeration, and it was under these conditions and circumstances that the sausage was offered for sale. The evidence showed that the plaintiff boarded with the family of the merchant and there, four or five days after the can had been opened, some of the sausage therefrom was cooked and served, that the plaintiff ate some of it, and that in a short time thereafter he became seriously ill. There was evidence that some of the sausage was sold on September 3, 1936, two days after the can was opened, and one witness testified that he bought some of the sausage on the day the can was opened and became ill after eating it. The evidence did not show, however, that it was purchased immediately after the can was opened.
There was evidence that in the can some particles of solder were found, and that sometime later, after the can had been opened, small 'pellets' were discovered in the can, the storekeeper testifying that, upon removing oil, which had become solidified, from the can two years after it had been opened, he found in the bottom of the can bits of metal and some green 'pellets'. The evidence showed that these substances would not cause the sausage to become poisonous. One of the witnesses for the defendant testified that the 'pellets' were not harmful, and proceeded to consume some of them in the presence of the jury. While on the stand the following day he testified that he had not been harmed or made sick by the pellets. The doctor who attended the plaintiff testified that he could not say that the plaintiff's illness was due to metallic poisoning.
It is contended by counsel for the plaintiff in error that the doctrine of res ipsa loquitur was applicable to the facts of the present case, and that the jury should have determined, under such doctrine, whether or not the defendant's negligence, if any, caused the damage to the plaintiff. 'Where the event is unusual and extraordinary in its nature, and there is nothing to indicate an external cause, but the peculiar character of the accident is sufficient within itself to indicate that it must have been brought about by negligence on the part of some one, and where the most reasonable and probable inference which can be rationally drawn from the happening of such an event is that it would not and could not have taken place, had not the person charged with furnishing or maintaining the instrumentality causing the accident been guilty of the particular acts or omissions set forth by the plaintiff as constituting the actual cause, then the jury is authorized to apply the rule of evidence known as the doctrine of res ipsa loquitur in determining whether or not the accident must have been thus occasioned.' (Italics ours.) Macon Coca-Cola Bottling Co. v. Crane, 55 Ga.App. 573, 190 S.E. 879, 883. 'All that the plaintiff should be required to do in the first instance is to show that the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of, the thing doing the damage; that the accident was of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.' (Italics ours.) Chenall v. Palmer Brick Co., 117 Ga. 106, 109, 43 S.E. 443.
These cases and others dealing with the question of res ipsa loquitur show that the doctrine is applicable only in the absence of evidence as to an external cause of the injury. In other words, where there is some intervention or intermediary cause which produces or could produce the injury complained of, the doctrine of res ipsa loquitur is not applicable. In the present case there was evidence that after the can was opened the sausage was exposed under conditions which might be found to have been the cause of the contamination of the sausage, rather than that it was the negligence of the defendant that caused such damage, and consequently the rule of res ipsa loquitur was not applicable. The case resolves itself into a determination of whether or not the plaintiff...
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