Norris v. Pig'n Whistle Sandwich Shop Inc

• Decision Date: 01 June 1949
• Docket Number: No. 32492.,32492.
• Citation: 53 S.E.2d 718,79 Ga.App. 369
• Court: Georgia Court of Appeals
• Parties: NORRIS. v. PIG'N WHISTLE SANDWICH SHOP, Inc.

53 S.E.2d 718

79 Ga.App. 369

NORRIS.

v.PIG'N WHISTLE SANDWICH SHOP, Inc.

No. 32492.

Court of Appeals of Georgia,

Division No. 1.

June 1, 1949.

Syllabus by the Court.

1. It was not error for the trial judge to sustain the grounds of special demurrer directed to the paragraphs of the petition dealing with the loss of expected profits and additional expenses incurred during the time the plaintiff was away from his candy manufacturing business on account of his alleged injuries.

2. In a suit for damages against a seller of unwholesome food the plaintiff may establish negligence as a matter of fact, or he may show negligence as a matter of law by establishing a breach of a statutory duty imposed by the provisions of the pure food and drug laws, or he may rely on both classes of negligence.

(a) Under the facts of this case the defendant was not required in the exercise of ordinary care, to discover and eliminate every single particle of bone in the barbecued pork sandwich, and the mere presence of a particle of bone does not warrant an inference of negligence in preparing and furnishing the food to the plaintiff.

(b) The evidence indicates that the barbecued pork sandwich contained nothing that would render it unfit for food within the purview of the provisions of Code, § 42-109, subd. 7, as containing a "portion of an animal unfit for food" and under the evidence the defendant cannot be charged with negligence per se in the violation of this statute so as to require the submission of the case to a jury.

4. The trial judge did not err in granting a nonsuit.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

Action by J. D. Norris against the Pig'n Whistle Sandwich Shop, Inc., for injuriescaused by swallowing a fragment of bone in a barbecued pork sandwich purchased by plaintiff from defendant. Judgment of nonsuit, and plaintiff brings error.

Affirmed.

Francis G. Jones, Jr., Atlanta, for plaintiff in error.

Matthews, Long & Moore, Atlanta, T. J. Long, Atlanta, for defendant in error.

SUTTON Chief Judge.

J. D. Norris sued Pig'n Whistle Sandwich Shop, Inc., in Fulton Superior Court, for damages on account of injuries received from swallowing a fragment of bone while eating a barbecued pork sandwich, consisting of barbecued pork meat and other substances placed in a bun, which was purchased from the defendant.

The facts on which the action is based, as shown by the petition, are as follows: On Monday, November 10, 1947, about 1:00 p. m., the plaintiff requested one of his employees, N. G. Ward, to purchase a barbecued pork sandwich from the defendant's retail shop located on Peachtree Road in Atlanta across the street from the plaintiff's candy manufacturing business. Ward purchased the sandwich and brought it to the plaintiff, who was in his office at the time, and the plaintiff took one or two bites from it, and immediately thereafter noticed a peculiar sensation in his throat and began coughing. This condition became worse and about 45 minutes later he was carried to the office and hospital of Dr. Murdock Equen, and Dr. Equen performed an emergency operation and removed a piece of pig bone by inserting an instrument in the plaintiff's mouth and pushing it to a point 7 or 8 inches below the plaintiff's throat. From the description of the fragment of bone, as shown by the petition, and also as shown in the brief of evidence, it appears that this bone was somewhat in the shape of a rectangular solid, varying in thickness from about 1/32 of an inch or less along one long and one short side to about 1/10 to 1/20 of an inch in thickness along the other sides, and being about 3/4 of an inch long, the long sides being curved, and about 3/8 of an inch wide. It is alleged that the defendant's agents and servants were negligent in not discovering and removing the piece of bone before preparing and serving the meat in the bun, and that said acts were in violation of Code, § 42-109, subd. 7 of the pure food and drug laws.

The defendant demurred generally and specially to the petition, and in its answer denied the allegations, except as to the jurisdiction. The grounds of special demurrer were directed to certain paragraphs of the petition as showing elements of damage in regard to loss of profits and additional expense incurred at the plaintiff's business while he was away as being too remote and speculative. The trial judge overruled the general demurrer and sustained the grounds of special demurrer and ordered the paragraphs of the petition stricken in this respect upon failure of the plaintiff to amend within a certain time. The plaintiff excepted pendente lite to the judgment sustaining the grounds of special demurrer. Certain amendments to the petition were later allowed and filed, to which the defendant demurred, but these amendments were withdrawn in toto by the plaintiff before the case proceeded to trial before a jury, thus leaving the petition as it was after the order of the judge striking the paragraphs in respect to loss of profits and additional expense incurred.

It appears from the evidence that the sandwich was delivered to the plaintiff's employee enclosed in a wrapper, and that he delivered it to the plaintiff in this same state; that there was nothing wrong with the sandwich other than the fact that it contained the particle of bone which was swallowed by the plaintiff; and that the meat part of the sandwich consisted of small slices or particles of pork. An employee of the defendant was sworn as a witness for the plaintiff and testified that he was employed by the defendant at the time of the purchase of the sandwich on November 10, 1947, and that his duties consisted of preparing sandwiches and waiting on customers, and that, although he did not know the plaintiff's employee who purchased the food for the plaintiff, he could have been the one who waited on him. This witness testified in detailas to the preparation of the meat, and his testimony indicates that the meat is carefully inspected and that particles of bone are ordinarily removed before the meat is placed in a bun, and that if a bone such as was shown to him was present in the meat it would normally be found and removed before placing the meat in a bun. The manager of the defendant's shop was also sworn as a witness for the plaintiff and he testified in detail as to the preparation of the meat and the inspection it receives while it is being sliced and cut into small portions before being used, and that a bone the size of the bone in question would normally be taken out of the meat.

On motion of the defendant, the trial judge granted a nonsuit, and the plaintiff excepted to this judgment, and to the judgment sustaining the grounds of special demurrer and striking certain paragraphs of his petition.

1. The paragraphs of the petition which were stricken in general deal with the loss of expected profits and additional expenses incurred during the time that the plaintiff was away from his candy manufacturing business, November 10-18, 1947, while recuperating from the effects of the swallowing and removal of the fragment of bone. It appears from these allegations of the petition that the plant would probably have remained open and that production would have continued if the plaintiff's foreman had not also been absent on account of drunkenness. As plead the alleged damages are remote, speculative, contingent, and uncertain, and were dependent on whether or not the plaintiff would have been able to keep the plant in production and whether or not he would have been able to make certain sales and fill certain orders, even if he had been in good health and present at the business during the period of his absence. "Direct damages are such as follow immediately upon the act done. Consequential damages are such as are the necessary and connected effect of the tortious act, though to some extent dependent upon other circumstances." Code, § 105-2007. "If the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrongdoer." Code, § 105-2008. "Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered; but damages traceable to the act, but not its legal or natural consequence, are too remote and contingent." Code, § 105-2009. "It may be stated as a general rule that in tort actions a recovery may be had for loss of profits, provided their loss is the proximate result of the defendant's wrong and they can be shown with reasonable certainty. The profits recoverable in such cases are limited to probable, as distinguished from possible benefits. They must be such as would be expected to follow naturally the wrongful act and be certain both in their nature and the cause from which they proceed. Profits which are remote, or speculative, contingent or uncertain are not recoverable, as, for example, the prospective...