20 S.E.2d 181 | Ga. Ct. App. | 1942
Lead Opinion
1. When a case is brought to this court and the judgment of the trial court is reversed, all questions as to pleadings and the effect of evidence adjudicated by this court are binding as the law of the case on this court and, on a second trial of the case, on the court below, unless additional pleadings and evidence prevail to change such adjudications.
2. Want of jurisdiction, when it appears on the face of the petition, should be taken advantage of by demurrer.
3. When separate and distinct acts of negligence concur to proximately produce an injury, the persons so negligent are joint tort-feasors and may be sued in the county of the residence of either.
4. Generally, whether the inference which arises under the rule of evidence known as res ipsa loquitur has been rebutted or overcome by exculpatory evidence, is a jury question.
5. A different rule of care applies to a retailer of foods from that which applies to a consumer. Both the retailer and the consumer are bound under the law to exercise ordinary care and diligence. That is, the same degree of care applies both to the retailer and to the consumer. But the duties are different. The retailer has the duty to know, or he ought in the exercise of reasonable care to have known, of the unwholesomeness of the food product. The duty of the consumer arises only after knowledge of the unwholesomeness of the food. Generally, these are jury questions. (BROYLES, C. J., dissents from this ruling.)
Under the principle of the law of the case the issues which were decided when the case was here before are binding on this court and on the trial court. In City of Atlanta v. Franklin,
In the former opinion this court said: "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 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. . . The company, in its demurrer to the petition, motion to dismiss the petition, plea to the jurisdiction, and in exceptions *361
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." And: "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,
"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."
It would seem that the judgment overruling the general demurrer and motion to dismiss the petition, rendered on the first trial, which judgment this court held was not erroneous, settled the question of jurisdiction adversely to the plaintiff in error. It *362
was held in Willie v. Willie,
Under the allegations of the petition, this court held in its former opinion that the court did not err in charging the doctrine of res ipsa loquitur as to the bottling company. But, inMoree v. Shiver,
Persons may be joint tort-feasors, though separate and distinct acts of negligence are alleged against them, where both concur to proximately produce the injury. It was likewise held, in said former decision, page 758: "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." The court further held that the case should be reversed on two grounds (1), that the doctrine of res ipsa loquitur did not apply to Moree, the alleged joint tort-feasor with the bottling company and retailer of the coca-cola, and (2) because the court failed to charge the jury to the effect that the duty rested on the plaintiff to exercise ordinary *363 diligence and reasonable care for his own protection, and that if the jury should find that there were pieces of glass in the bottle, and the plaintiff drank from the bottle and suffered injury as a consequence, and that the plaintiff by the exercise of ordinary care could have avoided such injury, he could not recover. Therefore, under the record of the instant case, viewed in the light of the previous decision of this court, wherein the same allegations of the petition and practically the same evidence were involved, there is but one issue here presented, though it is viewed by the plaintiff in error from a number of angles. That question is, whether the evidence in the instant case authorized the verdict.
The bottling company amended its motion for a new trial by adding twenty-three special grounds. The fourth ground of the amended motion deals with the jurisdictional question which we have already discussed. There is no merit in this ground. Grounds 5 to 12, inclusive, are but different viewpoints of the general grounds, which we will discuss later. Grounds 13 to 23, inclusive, complain of specific charges of the court, and are to the general effect that the evidence did not authorize these charges. In effect, these objections to the charges go to the general grounds that the evidence did not authorize them and therefore did not authorize the verdict. We will deal with these phases in a discussion of the general grounds, as we find no merit in them if the general grounds are without merit.
Let us examine the evidence to determine whether or not the verdict was supported thereby. Did the evidence present a jury question as to the doctrine of res ipsa loquitur? Or was the inference which arose under the principle of this doctrine overcome by the evidence as a matter of law? Did the evidence present a jury question as to the negligence of the retailer, Moree? Or, as a matter of law, did it demand a finding in favor of Moree and consequently in favor of the bottler? The question is controlled adversely to the bottling company by AtlantaCoca-Cola Bottling Co. v. Dean,
There are numerous other decisions of this court to the same effect, but we do not deem it necessary to cite further authority. From the evidence in this case there is no question that the most modern machinery and the most scientific methods were accessible and used in the bottling of the coca-cola in question, and it would seem that if the human element which entered into the processing of this particular bottle had not, for some reason or other, been at least momentarily negligent, the foreign substance could not possibly have got into the bottle. Such is the effect of the ruling in the case cited above. It does not appear from the record just what employee of the company furnished this human element of inspection etc. We know that it would be difficult to ascertain the name of such agent or employee, but it was not done, hence the reason for the rule of res ipsa loquitur. We therefore have no authority, as a matter of law, to hold that, because the most modern machinery and the most scientific methods were used by the bottler, some employee or agent "down the line" was not negligent. It was a jury question under all the facts and circumstances.
It is argued that Shiver, purchaser of the coca-cola, had the same opportunity to examine the coca-cola after he purchased it and before he drank it, as Moree, the retailer. We do not think the record of the evidence will bear the retailer out in this premise from which he argues, but conceding that it does, still it would not necessarily follow that the retailer would not be liable. It was held in Davis v. Williams,
Judgment affirmed. MacIntyre, J., concurs.
Concurrence Opinion
This court in passing upon this same case in