Miller v. Gerber Products Co.

• Decision Date: 10 October 1950
• Docket Number: No. 17229,17229
• Citation: Miller v. Gerber Products Co., 207 Ga. 385, 62 S.E.2d 174, 52 A.L.R.2d 155 (Ga. 1950)
• Parties: , 52 A.L.R.2d 155 MILLER v. GERBER PRODUCTS CO.
• Court: Georgia Supreme Court

Page 174

62 S.E.2d 174

207 Ga. 385, 52 A.L.R.2d 155

MILLER v.GERBER PRODUCTS CO.

No. 17229.

Supreme Court of Georgia.

Oct. 10, 1950.

Rehearing Denied Nov. 15, 1950.

Syllabus by the Court.

The evidence being insufficient for application by the jury of the doctrine of res ipsa loquitur, or to authorize a finding or inference of negligence on the part of the defendant in the processing, packing, and distribution of its baby food, the trial judge did not err in directing a verdict for the defendant.

Sam F. Lowe, Jr., David A. Heuett, Atlanta, for plaintiff in error.

John P. Stewart, Atlanta, for defendant in error.

ALMAND, Justice.

Wanda Beth Miller, a minor 11 months old, through her father as next friend sued Gerber Products Company, a corporation, for damages.On the trial of the case, after the plaintiff and the defendant had introduced their testimony, the court, on motion of the defendant, directed a verdict in favor of the defendant.By a direct bill of exceptions the case was appealed to the Court of Appeals.Error was assigned on the direction of a verdict by the court, as well as on the verdict directed in favor of the defendant; it being contended that there were issues of fact which should have been submitted to the jury.The Court of Appeals, sitting as a body, was equally divided as to the judgment (Sutton, C. J., MacIntyre, P. J., and Worrill, J., being for affirmance, and Felton, Gardner and Townsend, JJ., being for reversal); and ordered the case transferred to this court under the provisions of art. 6, sec. 2, pars. 4 and 8 of the Constitution of 1945, Ga.Code Ann.Supp. §§ 2-3704, 2-3708.The case is now before this court pursuant to that order of transfer.

The plaintiff's action was based on the alleged negligence of the defendant in processing, packing, and placing on the market for sale and distribution through a retail store, a certain baby food, to wit, strained peas, which the defendants put up in a sealed glass jar, in that, after her mother had purchased a jar of the peas from a retail dealer, and while the plaintiff was being fed some of the peas from the original container by her mother, the baby got a piece of glass triangular in shape, about 3/4 by 3/4 by 5/8 inch in her mouth, which was alleged to have been in the peas, and was injured thereby.In its answer the defendant denied liability, or that it was negligent as charged.It was admitted by the defendant that the jar of peas purchased by the plaintiff's mother was processed, packed, and distributed by it to the retail dealer.

The sole question for determination is whether there was sufficient evidence to raise an issue of negligence for consideration by the jury.The plaintiff's mother testified: On the same day she bought the jar of strained peas, while feeding the baby in the kitchen, she took the jar and removed the metal cap and put the jar in a bottle warmer.After warming the jar she removed it from the warmer and tested its heat by sticking her finger in the jar, and began to feed the plaintiff with a spoon.After feeding her about one-half of the peas, she noticed a peculiar expression on the baby's face, and after giving her another spoonful the baby began to choke and gag.She called to her husband, and at first he was unable to find anything in the baby's mouth, and on a second inspection the husband found in the back of her mouth a jagged piece of glass.No injury was found in her throat from the glass, but she was upset, and it was hard to get her to eat.No chip of glass, or crack, was found in the jar that contained the peas.

The plaintiff's father testified that he was with his wife, when the jar of peas was purchased, and with other groceries he carried the jar to his home; and that the jar was in the same condition when he arrived at his home that it was when it was bought.He testified as to finding the glass in the plaintiff's mouth, and the piece of glass described above, together with the metal cap, was introduced in evidence.

The plant manager, in charge of packing its glass jars of strained peas, testified in detail as to how the defendant processed and packed the peas.In substance, his testimony showed that the defendant, in preparing its strained peas for distribution and sale, by reason of its processing and packing and inspection, used a high degree of diligence and care in seeing that no foreign ingredient such as a piece of glass got into any of its jars of strained peas.

Counsel for the plaintiff contends that, there being evidence that the piece of glass was found in the baby's mouth while she was being fed from the glass jar, this is direct evidence that the piece of glass came from the jar containing the peas, and raised an inference that the defendant had not used ordinary care in the preparation of this food, and was sufficient to carry the case to the jury for their application of the doctrine of res ipsa loquitur.We cannot agree with this contention.All the evidence as to where the piece of glass came from, and how it got into the baby's mouth, was circumstantial.There is no direct evidence that the mother or father saw the glass in the jar, or any other circumstances, such as other pieces of glass in the jar, or that the glass jar was cracked, or that the piece of glass came from the jar containing...