169 Ga. 201 | Ga. | 1929
This court granted the writ of certiorari to review the ruling made by the Court of Appeals, in this case, that “a particular act' of negligence, alleged to have caused the injury, was set forth in the petition, and consequently the petition was not subject to demurrer on account of such deficiency.” Armour v. Miller, 39 Ga. App. 228 (147 S. E. 184). Miller sued Armour & Company, the manufacturer of a can of sausage, for damages resulting to him from having eaten a portion of said sausage which he purchased from a retailer, and had been made sick thereby. In his petition he alleged that at some date unknown to him the defendant did negligently manufacture, pack, and put upon the market said can of sausage, which in due course was sold by the manufacturer to a retail merchant, with the intent and with the knowledge on the part of the manufacturer that said can of sausage would be opened by said retail merchant and retailed by him to customers for human food, that in said can of sausage was a quanthw, unknown to him, of impure, tainted, poisonous, deleterious and unwholesome matter, which was negligently permitted by the manufacturer to become mixed with the other contents of the package. Petitioner alleged that lie purchased a small quantity of the sausage from the retail dealer, and almost immediately became ill from ptomaine poisoning from the eating thereof, to his injury and damage; that in the purchase of said sausage from said retailer he relied upon the legal
The plaintiff’s petition- alleged that the defendant negligently manufactured a sausage from the eating of which he was injured. Counsel for the defendant admit that this allegation would be good against a general demurrer. They properly contend that a general allegation of negligence, without stating the fact or facts on which it is based, is a mere conclusion of the pleader and is not good against a special demurrer. Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (50 S. E. 974). Their specific contention is that the allegation in paragraph 5 of the petition, “that contained in said can or package of sausage was a quantity, unknown to plaintiff, of impure, tainted, putrid, deleterious, and unwholesome matter, which was negligently permitted by said defendant to become mixed with the other contents of said package,” and the further allegation contained in paragraph 11 “that defendant was negligent in permitting said putrid, tainted, impure, deleterious, unwholesome, and poisonous substance to become an ingredient of said product, and in putting the same on the market for sale to the public, knowing that the same was to be used by the public for human food, and in allowing the same to be sold to the public,” do not set forth any specific act of negligence. The sole question for decision is whether the above allegations, when taken together, set up an act of negligence, and not a mere conclusion of the pleader. When a .manufacturer makes and cans sausage and sells- the same
Judgment affirmed.