Ray v. Deas

Decision Date08 September 1965
Docket NumberNo. 41387,No. 3,41387,3
Citation112 Ga.App. 191,144 S.E.2d 468
Parties, 2 UCC Rep.Serv. 1082 J. D. RAY v. Marguerite F. DEAS
CourtGeorgia Court of Appeals

Harris, Russell & Watkins, Macon, for plaintiff in error.

Melton, McKenna & House, Andrew W. McKenna, Macon, for defendant in error.

Syllabus Opinion by the Court

FRANKUM, Judge.

1. 'Any person who knowingly or carelessly sells to another unwholesome provisions of any kind, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or his family, shall be liable in damages for such injury.' Code § 105-1101. It has been held, in applying the principles enunciated by this Code section, that one who negligently furnishes food or drink containing a foreign substance which causes injury or damage to the consumer thereof may be held liable therefor. Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A.,N.S., 1178; Bailey v. F. W. Woolworth, Inc., 106 Ga.App. 264, 126 S.E.2d 686. Count 1 of the petition which alleges that the plaintiff was customer of the defendant restaurateur; that the defendant served or delivered to the plaintiff a hamburger sandwich; that the plaintiff, while in the act of consuming the sandwich, sustained an injury when she bit into a hard unyielding substance contained in the sandwich which broke one of her teeth, and thereby resulted in specified damages to her; that the defendant was negligent in failing to properly inspect the ingredients of the sandwich, and that this negligence was the proximate cause of the plaintiff's injuries and damages sued for, stated a cause of action as against the defendant's general demurrer filed thereto. In a case of this kind actual knowledge on the part of the defendant of the presence in the food of the thing or quality which results in damage to the plaintiff is not essential, provided the plaintiff alleges and proves negligence on the part of the defendant in preparing the food. In such a case as against a general demurrer, mere general averments of negligence are sufficient. Yeo v. Pig & Whistle Sandwich Shops, 83 Ga.App. 91, 96(1), 62 S.E.2d 668. Count 1 of the petition stated a cause of action against the defendant, and the trial court did not err in overruling the general demurrer thereto.

2. Prior to the enactment of the Uniform Commercial Code it was the settled law in Georgia that a restaurateur who furnished unwholesome food or food containing a foreign substance or dangerous object to a customer who was injured thereby was not liable upon...

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9 cases
  • Chambley v. Apple Restaurants, Inc.
    • United States
    • Georgia Court of Appeals
    • July 16, 1998
    ...product from the shelf with the intent to purchase it" constitutes privity necessary for implied warranty); cf. Ray v. Deas, 112 Ga.App. 191, 192(2), 144 S.E.2d 468 (1965) (restauranteur may be liable for breach of implied warranty of merchantability for serving food containing foreign subs......
  • Sparks v. Total Body
    • United States
    • Alabama Supreme Court
    • July 17, 2009
    ...of merchantability. Redfern Meats v. Hertz, 134 Ga.App. 381, 215 S.E.2d 10 (1975) (improperly operating truck); Ray v. Deas, 112 Ga.App. 191, 144 S.E.2d 468 (1965) (foreign substance in 141 Ga.App. at 176-78, 233 S.E.2d at 35-36 (emphasis added). A subsequent enactment of the Georgia Legisl......
  • Pierce v. Liberty Furniture Co., Inc.
    • United States
    • Georgia Court of Appeals
    • February 2, 1977
    ...of merchantability. Redfern Meats v. Hertz, 134 Ga.App. 381, 215 S.E.2d 10 (1975) (improperly operating truck); Ray v. Deas, 112 Ga.App. 191, 144 S.E.2d 468 (1965) (foreign substance in Ellis v. Rich's, Inc., 233 Ga. 573, 212 S.E.2d 373 (1975), would appear at first glance to hold that the ......
  • Wilson v. J & L MELTON, INC.
    • United States
    • Georgia Court of Appeals
    • October 7, 2004
    ...containing a foreign substance which causes injury or damage to the consumer thereof may be held liable therefor." Ray v. Deas, 112 Ga.App. 191, 144 S.E.2d 468 (1965); Watson v. Augusta Brewing Co., 124 Ga. 121(1), 52 S.E. 152 (1905). Persons selling food for human consumption are under a d......
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