Southern Grocery Stores, Inc. v. Donehoo

• Decision Date: 30 November 1938
• Docket Number: 26938.
• Citation: 200 S.E. 335,59 Ga.App. 212
• Parties: SOUTHERN GROCERY STORES, Inc., v. DONEHOO.
• Court: Georgia Court of Appeals

200 S.E. 335

59 Ga.App. 212

SOUTHERN GROCERY STORES, Inc., v. DONEHOO.

No. 26938.

Court of Appeals of Georgia, First Division

November 30, 1938

Rehearing Denied Dec. 14, 1938.

Syllabus by the Court.

1. The petition was not subject to the demurrer interposed.

2. The verdict was authorized by the evidence, and none of the special grounds of the motion for new trial shows cause for another hearing of the case.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Action by Mrs. W. L. Donehoo against the Southern Grocery Stores Inc., to recover damages from defendant for selling fish which were unfit for human consumption and which caused the death of plaintiff's son. To review a judgment in favor of the plaintiff, the defendant brings error.

Judgment affirmed.

A. S Clay, E. D. Smith, Hirsch & Smith, and Hamilton Lokey, all of Atlanta, for plaintiff in error.

James A. Branch and Thomas B. Branch, Jr., both of Atlanta, for defendant in error.

BROYLES Chief Judge.

1. The plaintiff sued the defendant for damages for selling her mullet fish which she alleged were "stale, spoiled impure, and unfit for human consumption." Her petition recited that on August 23, 1935, she and her daughter, Mrs J. A. Gramling, bought certain mullet fish from the defendant through its butcher and employee, Ralph O. Thompson, who told her then that the fish were fresh and good; she immediately took the fish to her home and put them on ice; the next morning she cooked them for breakfast and served them to her family; her son, W. L. Donehoo, Jr., ate of the fish, and, thereafter, about 2 o'clock in the afternoon, he began to suffer acute cramps and abdominal pains, and continued so to suffer until he retired for the evening; that on the following morning he arose and entered the kitchen and suddenly collapsed; he was put in bed, and a doctor called, who diagnosed his illness as food-poisoning; despite all that could be done, his illness became worse and he died on August 31, 1935; his illness and death resulted solely from his eating the fish, which "were stale, spoiled, impure and unfit for human consumption." Paragraph 16 of the petition reads as follows: "The illness and death of petitioner's said son was caused by the defendant's negligence in selling said fish which it knew, or in the exercise of ordinary care could have known, were not fit for human consumption and would cause any person eating said fish to become sick." And paragraph 17 of the petition alleged that "the defendant was negligent in selling stale, spoiled, and impure fish as wholesome food." It was further alleged, in other paragraphs, "that the defendant was negligent in keeping the fish until it had become stale, spoiled and unfit for human consumption and then selling it to petitioner to be used as food; that defendant was negligent in selling said fish without having made a proper inspection to determine whether said fish were fit for human consumption, and without inspecting the fish at the time of the sale to determine whether the fish were so fit; that defendant was negligent in representing said fish as pure and wholesome when, in fact, it did not actually know whether the fish were pure and wholesome, or stale, spoiled, and impure." The petition further alleged that her son, before he ate the fish, was active and strong and helped petitioner in her housework, ran errands for her, and did many other things for her comfort and support, and she was dependent on him for said services, and that his services were reasonably worth the sum of fifty dollars a month; and she sued for the full financial value of his life, alleging that he did not leave surviving him any wife or child, that he contributed to her support, and that she was dependent on him.

The defendant demurred generally to the petition, and specially to paragraphs 16 and 17. The special demurrers alleged that the allegations in said paragraphs are too vague and indefinite and are mere conclusions of the pleader, without support of any allegations of fact upon which to predicate said conclusions. In our opinion all of the demurrers were properly overruled. The petition set out a cause of action, and paragraphs 16 and 17, when considered in the light of the various allegations of fact made in other paragraphs of the petition, are not subject to the special demurrers interposed. It is not necessary in a case of this kind, for the plaintiff to show that the defendant had actual knowledge that the food sold by him was unwholesome. It is sufficient if the plaintiff shows that the defendant ought to have known of the bad condition of the food, and was negligent in furnishing it, by reason whereof the plaintiff's son was injured. 11 R.C.L. 1118, 1119,§ 25; McPherson v. Capuano & Co., 31 Ga.App. 82 (1), 121 S.E. 580.

2. In our opinion the evidence authorized the verdict for the plaintiff. It showed that the fish bought by the plaintiff on the occasion referred to were divided between her and her daughter, Mrs. Gramling; that Mrs. Gramling and her family lived in their own home and not with the plaintiff; that in each household those members of the family who ate the fish became ill soon afterwards, while those who did not eat any of the fish remained in good health. Mrs. Gramling testified as follows: "The first bite that I took of the fish was bitter, or something was bitter, and I spat it out, and I think I took about two more...