Payton v. Lee, 34691
| Decision Date | 16 June 1953 |
| Docket Number | No. 2,No. 34691,34691,2 |
| Citation | 88 Ga.App. 422,77 S.E.2d 77 |
| Parties | PAYTON v. LEE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The trial court's failure to charge upon the existence of negligence per se on the part of the defendant for a violation of Code, § 42-109(7) was not reversible error under the facts of this case, as the evidence demanded a verdict for the defendant.
Mrs. Willie Payton brought an action for damages against James Robert Lee, doing business as Elberton Drug Company, and in her petition as amended alleged substantially the following: The defendant conducts in the Elberton Drug Company 'an eating place' where food is served to the public for charge. On Saturday, June 23, 1951, at about six-thirty o'clock in the evening, the plaintiff, as a customer, entered the defendant's place of business and ordered for consumption a 'cold plate' consisting of potato salad, cheese, tomatoes, ham, etc., of which she ate a part and paid the defendant. In addition to the contents of the cold plate already enumerated, there was on the cold plate either ham or some kind of composition meat product, the name of which is unknown to the plaintiff, boiled egg, potato chips, and a leaf or so of lettuce. The defendant is well aware of what composed the contents of the plate, having prepared and served it, and, if not personally familiar with such contents, is chargeable with notice thereof. The potato salad served on the plate was composed of vegetable matter, consisting of Irish, or white, potato, mayonnaise, pickle, onion, all of which the plaintiff was able to identify; and the potato salad was unwholesome, putrid, filthy, and unfit for human consumption, and 'the serving of said unwholesome food to the plaintiff was negligence per se on the part of the defendant, and was carelessly served to her and she had no means of detecting the unwholesomeness of said salad until after she had consumed the same and was sickened thereby.' The aforesaid food, and particularly the potato salad, on the cold plate was unwholesome and unfit for human consumption, and was carelessly sold to the plaintiff by the defendant as wholesome food. The defendant, having prepared and served the food, knew or should have known of its unwholesomeness. After eating the food, the plaintiff became nauseated and about nine o'clock that evening of the same day on which she ate the food she was forced to call a physician and was carried to the hospital for treatment. She suffered severe and agonizing nausea, severe pain and cramps in the abdominal region, vomited violently and for a long period of time thereafter and remained in the hospital under treatment until the following Tuesday, and she has not fully recovered from the illness to the time of filing suit. She has been damaged generally in the sum of $3000, and has been specially damaged by incurring medical and hospital expenses of $51.40.
Without demurring to the petition, the defendant filed his answer of general denial. Upon the trial the jury returned a verdict for the defendant. The plaintiff's motion for new trial, based on the usual general grounds and two special grounds, was overruled, and she has appealed to this court to review the errors alleged therein.
J. T. Sisk, Elberton, for plaintiff in error.
H. B. Payne and Robert M. Heard, Elberton, for defendant in error.
Of the assignments of error in the motion for a new trial, the only ones insisted upon by counsel for the plaintiff in his brief filed in this court are those contained in the two special grounds and the errors assigned in these grounds are essentially the same--namely, that the trial court erred in its refusal to submit to the jury the question of the existence of negligence per se arising from a violation of Code, § 42-109(7), which provides: 'If it [an article deemed to be adulterated within the meaning of the food and drug laws] consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter.' Under the view which we take of the evidence in this case, when it is viewed in the light of the sole issue of whether a violation of Code, § 42-109(7) was established, the failure of...
To continue reading
Request your trial
-
Patterson v. Kevon, LLC
...S.E.2d 439 (1968) (pre-Civil Practice Act grant of nonsuit at close of plaintiff’s evidence at trial, affirmed); and Payton v. Lee, 88 Ga. App. 422, 425, 77 S.E.2d 77 (1953) (jury verdict—not summary judgment as appellee contends—for defendant, affirmed). Obviously, the standard of review o......
-
Sarti v. Salt Creek Ltd.
...rule.) The example the Minder court gave immediately after its statement came from a Georgia appellate case (Payton v. Lee (1953) 88 Ga.App. 422 ). In that Georgia case, according to Minder, the fact that the plaintiff fell ill after eating potato salad and her illness was diagnosed by her ......
-
Castleberry's Food Co. v. Smith
...evidence if every other reasonable hypothesis as to the cause of the plaintiff's illness could be excluded. See Payton v. Lee, 88 Ga.App. 422, 425, 77 S.E.2d 77 (1953). At trial, Castleberry's director of quality control described the manufacturing procedures utilized to ensure wholesomenes......
-
Edwards v. Campbell Taggart Baking Companies, Inc.
...evidence if every other reasonable hypothesis as to the cause of the plaintiff's illness could be excluded. See Payton v. Lee, 88 Ga.App. 422, 425 (77 SE2d 77) (1953)." Castleberry's Food Co. v. Smith, 205 Ga.App. 859, 861, 424 S.E.2d 33 (1992). Jenkins' affidavit states that the discolored......