Albany Coca-Cola Bottling Co. v. Shiver

12 S.E.2d 114 | Ga. Ct. App. | 1940

1. The violation by two persons of separate duties owing to another person, and the commission by them of separate and distinct acts of negligence concurring in causing the injuries to such person, constitute the perpetrators joint tort-feasors.

2. Under the facts of this case it was not error to charge the doctrine of res ipsa loquitur.

3. Where the evidence authorized a finding that the plaintiff in a tort action could have avoided the injury by the exercise of ordinary care, notwithstanding the defendant may not have pleaded such negligence on the part of the plaintiff as a defense, it was error prejudicial to the defendant for the court to fail to give in charge a written request timely made to the effect that such negligence on the part of the plaintiff would bar a recovery, where such principle of law was not given in the general charge.

DECIDED NOVEMBER 29, 1940. Hard Shiver brought suit in the city court of Sylvester, in Worth County, against Albany Coca-Cola Bottling Company, a corporation of the State of Georgia with its principal office and place of business in Dougherty County, and W. P. Moree, a resident of Worth County. It was alleged in the petition as amended that the bottling company was engaged in bottling, selling, and distributing for resale, a soft drink or beverage, known as coca-cola; that Moree was a retail merchant operating a store in Worth County and engaged in buying and selling bottled coca-cola; that the plaintiff on or about March 13, 1938, purchased a bottle of coca-cola from Moree at his store, which bottle of coca-cola Moree had obtained from the bottling company; that the bottle contained several pieces of broken glass which was dangerous and unfit for human consumption; that the presence of the glass in the bottle was unknown to the plaintiff; that Moree opened the bottle by removing the cap and handed the bottle to the plaintiff who drank therefrom part of the contents of the bottle, and then discovered that he had swallowed a considerable amount of broken glass; that the glass severely injured the plaintiff's throat; that the plaintiff afterwards suffered with hard coughing spells, spitting up blood and pus, and with a painfully sore throat, and was under the care of a physician for several weeks; that the plaintiff suffered a great amount of physical and mental pain, and his health was seriously affected; that the plaintiff's injuries were due to the swallowing of the glass contained in the bottle of coca-cola, to the plaintiff's damage in the sum of $5000.

It was further alleged that it was the duty of the company when bottling the coca-cola to exercise ordinary care in order to avoid leaving pieces of glass in the bottle, and to inspect the bottle for the purpose of discovering the presence of glass in the bottle; that the bottle of coca-cola had not been opened since it left the bottling company until it was opened by Moree; that the company was negligent in bottling coca-cola with glass in the bottle, in not properly inspecting the bottle after it had been filled and when it was delivered to Moree for resale, and distributing the bottle to Moree for resale when it contained pieces of glass, and in failure to exercise ordinary care to discover pieces of glass in the bottle. It was further alleged that the light in the building where the plaintiff was handed the bottle of coca-cola by Moree was dim, and the plaintiff could not, by the exercise of ordinary care, have discovered the broken glass in the bottle. It was further alleged that it was the duty of Moree to exercise ordinary care in inspecting the bottle in order to discover whether it contained glass or other harmful objects, and to avoid selling to petitioner the bottle of coca-cola containing pieces of glass; that Moree was negligent in selling the plaintiff the bottle containing the glass; in not inspecting the bottle when he received it from the bottling company; in not discovering pieces of glass in the bottle; in not inspecting the bottle when he sold it to the plaintiff; and in failing to exercise ordinary care to discover pieces of glass in the bottle.

The bottling company demurred to the petition as amended and moved to dismiss it on the ground that no joint cause of action was alleged against it and Moree, and that no cause of action was alleged against Moree in that no negligence was shown on his part; and that therefore it appeared from the petition that the company and Moree were not joint tort-feasors and that the city court of Sylvester, the court in which the action was brought, had no jurisdiction of the person of the company, a non-resident of the county of Worth; and that as to the company the petition should be dismissed. The company further demurred to a number of paragraphs of the petition as being conclusions of the pleader. The company filed a plea to the jurisdiction of the court as to the person of the defendant on the ground that it was a resident of the county of Dougherty and was a non-resident of the county of Worth in which the suit was brought, and was not a joint tort-feasor with the resident defendant Moree. The company also filed a plea generally denying that it was guilty of any negligence as alleged, and denying liability to the plaintiff. The court overruled the demurrer and the motion to dismiss the petition as amended of the bottling company, which were based on the ground that it appeared from the petition that the defendants were not joint tort-feasors and the court had no jurisdiction over the bottling company, a non-resident defendant. The case proceeded to trial on the plea to the jurisdiction and the plea of general denial of the company, and against both defendants. The jury found a special verdict against the company on its plea to the jurisdiction, and found a verdict for the plaintiff against both the company and Moree in the sum of $500. The bottling company moved for a new trial on the general and certain special grounds, as will appear later. The court overruled the motion for new trial. The company excepted to the judgment overruling its demurrer to the petition and its motion to dismiss the petition as amended, and to the judgment overruling this defendant's motion for new trial. 1. While this suit was brought against both the Albany Coca-Cola Bottling Company and Moree, and was tried against both defendants, we are concerned with the case only as respects the company. The company, in its demurrer to the petition, motion to dismiss the petition, plea to the jurisdiction, and in exceptions in the amended motion for new trial to several excerpts from the charge of the court, insists that the company was not a joint tort-feasor with Moree, and that therefore the city court of Sylvester in Worth County had no jurisdiction of the company, a resident of Dougherty County and a non-resident of Worth County. Under the constitution of this State, Code, § 2-4304, joint tort-feasors may be sued together in the county in which either one resides. Cox v. Strickland, 120 Ga. 104 (47 S.E. 912, 1 Ann. Cas. 870). If the two defendants in this case were not joint tort-feasors the suit in the city court of Sylvester in the County of Worth, was not maintainable against the bottling company, a non-resident of the County of Worth and a resident of the County of Dougherty.

It was not essential to the constitution of the two defendants as joint tort-feasors that they owed the same duty or should be guilty of the same act of negligence. It was sufficient if each owed a separate and distinct duty to the person injured, and was guilty of a separate and distinct act of negligence, provided only that the separate acts of negligence concurred in proximately causing the injury. A bottling company which is engaged in the business of bottling a beverage known as coca-cola, to be sold and consumed by the public, owes a duty to the public to exercise ordinary care to prevent the presence in the bottles of foreign, deleterious substances, such as broken glass, which might injure persons drinking from the bottle. Likewise, a dealer who sells bottled beverages to the public for consumption is under a duty to a person to whom he may sell the beverage to exercise ordinary care to prevent the presence in the bottle of deleterious substances which might injure the person drinking the beverage. A failure of the bottling company to exercise ordinary care in bottling the product and selling it to retailers, and a failure of the retailer to exercise ordinary care in selling the product, which is in a transparent bottle, to a customer constitute separate and distinct acts of negligence, but both acts of negligence concurring may be productive of the injury to a customer of the dealer, the person drinking the beverage. Where the negligence of both the bottling company and the dealer causes the injury the bottling company and the dealer are joint tort-feasors. They may be sued jointly in the county in which either resides. Maddox Coffee Co. v.Collins, 46 Ga. App. 220 (167 S.E. 306); Davis v.Williams, 58 Ga. App. 274 (3) (198 S.E. 357); Jolly v. City of Atlanta, 37 Ga. App. 666 (141 S.E. 223). The court did not err in overruling the demurrer to the petition and the motion to dismiss the petition.

The evidence was sufficient to authorize the finding that both defendants were guilty of negligence in handling the bottled coca-cola as alleged in the petition, although the acts of negligence were separate and distinct. The jury was authorized to find that they were joint tort-feasors, and therefore was authorized to find against the bottling company's plea to the jurisdiction. There is no merit in the exceptions to the charge of the court on the ground that the charge instructed the jury that the parties could be joint tort-feasors notwithstanding each may have owed a separate duty to the plaintiff and may have been guilty of a separate and distinct act of negligence, where both acts of negligence contributed to the injury.

2. The company excepts to the charge by the court of the doctrine of res ipsa loquitur, on the ground that the charge was not authorized by the pleadings or the evidence. The evidence sustained the allegations in the petition that the company bottled the particular bottle of coca-cola for the purpose of being sold and its contents consumed by the purchaser, and delivered it to the dealer who sold it to the plaintiff; that the bottle contained glass which the plaintiff swallowed to his injury; and that the bottle was not opened from the time it left the plant of the company to the time it was opened by the dealer and delivered to the plaintiff. There was no evidence from which the jury could have found that the glass got into the bottle from the act of any one other than the bottling company, and the jury was authorized to find that the glass got into the bottle as the result of some one's negligence. The doctrine of res ipsa loquitur was applicable. In AtlantaCoca-Cola Bottling Co. v. Dean, 43 Ga. App. 682 (160 S.E. 105), it was held: "`When it is shown that the defendant owned or controlled the thing which, when properly constructed, maintained, or operated, did not, in the ordinary course of events, so act as to injure those near by, proof that damage was caused by such thing affords reasonable evidence that the injury was occasioned by want of ordinary care. Prima facie that want of due care should be referred to him under whose management and control the instrument of injury was found.' Chenall v. Palmer Brick Co., 117 Ga. 106, 109 (43 S.E. 443); Atlanta Coca-Cola Bottling Co. v. Shipp,41 Ga. App. 705 (2) (154 S.E. 385). Despite some discrepancies in the evidence, the jury were authorized to find that the beverage consumed by the plaintiff, which he alleged was contaminated by a foreign substance and made him sick, was purchased and obtained by him from a merchant, who in turn had bought it from the defendant bottling company, and that its condition was not changed from the time it was sold and delivered by the defendant until it was consumed by the plaintiff. It was thus within the province of the jury to apply the maxim res ipsa loquitur and to find against the defendant upon the issue as to its negligence." The court did not err in charging the doctrine of res ipsa loquitur.

3. The evidence authorized the finding that the beverage which was sold to the plaintiff by Moree was in a transparent bottle, and that at the place when and where it was sold to the plaintiff it was not dark but was light. There was evidence that there was in the bottle a large piece of glass. A witness testified that the plaintiff could have seen the glass in the bottle had he looked, and that the plaintiff had as good an opportunity for seeing the glass as did Moree. The evidence made an issue whether the plaintiff was negligent in not discovering the existence of the glass in the bottle before he drank from the bottle. The plaintiff alleged in the petition that by the exercise of ordinary care he could not have discovered the broken glass in the bottle. In its plea the defendant averred that for lack of sufficient information it could neither admit nor deny this allegation. The jury was authorized to find that the plaintiff by the exercise of ordinary care could have seen the glass in the bottle before he drank from the bottle, and could have concluded that the injury received by the plaintiff was the result of his own negligence. It was therefore error for the court to fail to charge a timely written request, as contained in ground 14 of the amended motion for new trial, to the effect that a duty rested upon the plaintiff to exercise ordinary diligence and reasonable care for his own protection, and that if the jury should find that there were pieces of glass in the bottle of coca-cola, and that the plaintiff drank from the bottle and suffered injury as a consequence, the jury should look to the evidence and consider the opportunities of the plaintiff to discover the pieces of glass in the bottle before drinking from the bottle, in the exercise of his duty to himself, and if the jury should find that the plaintiff by ordinary care could have avoided the consequences to himself he would not be entitled to recover any amount as against either or both of the defendants. Nowhere did the court charge this principle of law. Therefore the failure to charge the jury as requested was error harmful to the bottling company. This error demands the grant of a new trial. The court erred in overruling the motion for new trial.

Judgment reversed. Sutton and Felton, JJ.,concur.