George's Restaurant v. Dukes

• Decision Date: 19 May 1927
• Docket Number: 6 Div. 865
• Citation: 216 Ala. 239,113 So. 53
• Court: Alabama Supreme Court
• Parties: GEORGE'S RESTAURANT v. DUKES.

113 So. 53

216 Ala. 239

GEORGE'S RESTAURANT v. DUKES.

6 Div. 865

Supreme Court of Alabama

May 19, 1927

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages by P.M. Dukes against George's Restaurant. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Altman Taylor & Koenig, of Birmingham, for appellant.

Black &amp Fort and Fort, Burton & Jones, all of Birmingham, for appellee.

BOULDIN J.

Count 1 of the complaint charges, in substance, that the defendant operated a restaurant where plaintiff purchased some fish sandwiches; that defendant, or his employee while acting within the scope of employment, negligently sold and served fish that was tainted, decayed, and infected with maggots that plaintiff, before discovering its decayed or infected condition, did eat a part of such fish, and as a proximate result was made violently sick, etc., to his damage.

This count sufficiently shows the causal connection of the negligence charged and plaintiff's injury. The plaintiff ate the fish sold to him for food, not knowing its decayed condition, and the injury resulted from taking it into his system, does not show an intervening efficient cause of the injury, but merely an event within the contemplation of the parties by which the negligence of defendant became effective to his injury. This seems too obvious for citation of authority.

The plea of the general issue put in issue the fact of selling plaintiff spoiled fish, and cast upon him the burden of proof as to such fact and the resultant injury.

Such plea also put in issue the question of negligence vel non as charged, and invited all evidence tending to show the exercise of that degree of care required in such cases as defined in Travis v. L. & N.R.R. Co., 183 Ala. 415, 62 So. 851; Id., 192 Ala. 453, 68 So. 342.

All the evidence of care in selecting, inspecting, cooking, screening, and keeping the fish for sale to the consuming public was freely and properly admitted under that plea. Hence no injury resulted in sustaining demurrer to special plea L setting up these matters.

In support of the ground of the motion for a new trial challenging the verdict as a "quotient verdict," the affidavit of defendant's counsel, and exhibits to the affidavit, disclose that, almost immediately after the jury had left the jury room where they had deliberated, there was picked up from the floor 12 pieces of paper, each with a number written thereon, ranging from $10 to $1,000, and another piece of paper on which the same numbers were arranged in columns with the correct footing thereon of $3,285. The verdict was for $275.

In Southern Railway Co. v. Williams, 113 Ala. 620, 21 So. 328, the rule was declared that, where it reasonably appears data of this kind was the work of the jury, and the verdict corresponds with the quotient so obtained, a reasonable presumption arises that the verdict is a gambling or quotient verdict. The reasons for condemning a verdict so obtained was fully discussed in that case and in International Agr. Corp. v. Abercrombie, 184 Ala 244, 63 So. 549, 49 L.R.A. (N.S.) 415. The rule of the Williams Case has not been overruled, but expressly or impliedly followed in other cases. New Morgan County Bldg. & Loan Association v....