Maddox Coffee Co. v. Collins

• Decision Date: 31 December 1932
• Docket Number: 22322.
• Citation: 167 S.E. 306,46 Ga.App. 220
• Parties: MADDOX COFFEE CO. v. COLLINS.
• Court: Georgia Court of Appeals

167 S.E. 306

46 Ga.App. 220

MADDOX COFFEE CO. v. COLLINS.

No. 22322.

Court of Appeals of Georgia, First Division

December 31, 1932

Syllabus by the Court.

Negligent omission of retailer to inspect coffee containing deleterious foreign substance is not such intervening cause of customer's injuries as relieves manufacturer (Civ. Code 1910, § 4509).

Petition alleging manufacturer negligently permitted glass particles in coffee and that retailer negligently sold coffee made question for jury whether manufacturer alone or manufacturer and retailer were responsible for customer's injury.

Injury must be natural and probable consequence of another's negligence to warrant recovery.

Court will not determine upon demurrer that negligence was not proximate cause of injury, unless petition clearly so indicates.

Whether customer's injury resulting from eating coffee containing glass particles was natural and probable consequence of manufacturer's negligence held not determinable on demurrer to petition.

1. In order to recover for an injury alleged to have resulted from the negligence of another, the injury must be the natural and probable consequence of the negligence. If damages are only the imaginary or possible result of the tortious act, they are too remote to be the basis of recovery against the wrongdoer.

2. It is only where it clearly appears from the petition that the negligence charged was not the proximate and effective cause of the injury that the court may upon general demurrer, as a matter of law, so determine.

3. In this action for personal injuries, brought against a manufacturer of coffee by one alleging himself to have been injured by eating a portion of coffee grounds prepared and sold by the defendant manufacturer and containing an injurious foreign substance, it is held:

(a) It is properly a question for the jury under allegations of the petition, whether on the one hand the plaintiff's injuries were the natural and probable consequence of the defendant's negligence, or whether, on the other hand the defendant was bound to anticipate such a use of the coffee as that to which it was put by the plaintiff.

(b) Under the plaintiff's allegations it was likewise a question of fact, for the jury to determine, whether the manufacturer alone was responsible for the injury to the plaintiff, or whether the manufacturer was jointly responsible with the retailer therefor.

4. The general demurrer of the defendant manufacturer was properly overruled.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Action by H. T. Collins against the Maddox Coffee Company and another. Judgment was entered overruling demurrer of defendant named to the petition, and defendant named brings error.

Affirmed.

Jones Fuller, Russell & Clapp and Douglas M. Orr, all of Atlanta for plaintiff in error.

Jno. W Crenshaw, of Atlanta, for defendant in error.

HOOPER, J. (after stating the foregoing facts).

There are various forms of actions which may be brought to recover for injuries sustained by reason of the sale of unwholesome or deleterious food products, and this petition must, if possible, be given that construction which will sustain the suit. See Benjamin-Ozburn Co. v. Morrow, 13 Ga.App. 636, 79 S.E. 753. We arrive at the nature of this action by process of elimination. It is not an action identical with those actions against a restaurant or café, as illustrated by Rowe v. Louisville & Nashville Railroad Co., 29 Ga.App. 151, 113 S.E. 823, McPherson v. Capuano, 31 Ga.App. 82, 121 S.E.

580, and cases of like character, although they too are predicated on negligence. We do not construe the action as being brought under section 4460 of the Civil Code, which provides that: "A person who knowingly or carelessly sells to another unwholesome provisions of any kind, the defect being unknown to the purchaser, and damage resulting to the purchaser, or his family, or his property, shall be liable in damages for such injury." Neither do we construe this action as one brought under section 4135 of the Code upon an implied warranty as to the wholesomeness of the food product, for the petition expressly alleges negligence upon the part of each defendant. We therefore conclude that the action is in effect a common-law action for negligence such as that involved in the case of Fleetwood v. Swift & Co., 27 Ga.App. 502, 108 S.E. 909.

Counsel for Maddox Coffee Company, defendant in the court below earnestly contend that its demurrer to plaintiff's petition should have been sustained for the reasons: "1. That defendant Besser had an opportunity to inspect the coffee after it arrived at his store, and was negligent in failing so to do, and such negligent omission was an intervening cause which relieved defendant, Maddox Coffee Company, of any liability. 2. That the plaintiff used this coffee as a food, which said use was not the proper or foreseeable use for which said coffee was prepared, and said act of eating rather...