*1 32103, 32104. CRISWELL BAKING COMPANY v. (two cases).
MILLIGAN 14, Rehearing 11, 1948. 1948. Decided October denied November *4 Hewlett Dennis, & T. Bowden, Douglas F. Dennis, for plaintiff in error.
A. E. Wilson, contra. (After
Sutton, C. stating J. foregoing facts.) defendant in error has filed motions each dismiss ground these cases on the that there is no brief of the evidence required as by law, approval as the by the trial court of the brief of evidence in each case refers to the “brief of evidence in the entitled,” cases above heading and the of the brief of evidence in each record indicates is a applicable brief of evidence both In considering cases. whether the brief evidence such a brief required by law, this court can not consider the suffi ciency of approval of the brief court, of evidence the trial question unless the raised trial court, pres and in the ent question cases no such was raised in the trial court. See Ry. Charleston & W. C. Co. v. McElmurray, 441, Ga. 258); Code, 6-805. The brief evidence, at § election of the in error, may be approved trial judge and made part of the record sent to this court by clerk of the trial (Ann.), court. Code 6-802. “The brief of evidence on motion for new trial, approved filed and according
866 not, except by reference part record, and need law, 6-811. exceptions.” Code, bill of embodied in the
thereto, be § Appeals of shall not dismiss Supreme Court, or the Court “The conformity or to the statutes any any want of technical case for courts, carrying- practice in cases to said regulating the rules the exceptions transcript enough in the bill of or of where there is ascer- both to enable the court to presented, together, record or questions par- in the case which substantially the real the tain Code, require- 6-1307. The have decided therein.” ties seek to appear to have been met in the ments for the briefs of evidence transaction, grew out of same present These cases the cases. agreement counsel, of and the evi- they together by tried were either The mere the applicable to case. fact of equally dence is in form and content each brief of duality the use of the same being brief ineffective as render such not the evidence does required by law, where the same has a brief the evidence as judge part and filed approved by been the trial as a of the record each case. in
The motions to dismiss are without merit and denied. ground rulings demurrers, only in special
On
language
upon
the use of the
was
sisted
is that
“that defendant
deleterious,
permitting
tainted, impure,
negligent
putrid,
in
said
poisonous
ingredient
substance
become an
unwholesome,
language
petition,
in the
in
product”
of .said
similar
reference
pie
contained
was claimed to be
substance
illness,
sufficiently
does not name or
describe
the cause of
substance,
put
identity
the defendant on notice of the
n with
allegations
reference to the tainted
substance.
sausage
Miller,
in
of Armour & Co. v.
Ga.
the case
(149
almost
184);
698),
s. c.
Special ground 1 of
law, requires
any
charging
jury
that “the
court erred
manufacturing
products
food
preparing and
sale
person who is
any
so as to avoid
preparation
use due
thereof
should
care
being
therein.”
poison
substance from
contained
or unwholesome
using
erred
The
in error contends that
court
in this
“ordinary
care”
words “due care” instead of
words
charge.
It
was not a correct statement
is contended that this
furnished
misleading
jury;
and
law;
confusing and
of
required
degree of care
by
no standard
which to measure the
as
ground 2
motions
Special
defendant.
of the amended
jury
instruct the
signs error on the fact that the court did not
ordinary
Due
degree
required
of defendant was
care.
care
(3d ed.)
as
Dictionary
p. 626,
Law
care is defined
Black’s
have exer
ordinarily prudent person would
“that care which an
supported
is
circumstances,”
cised under the
and this definition
jurisdictions.
from other
citations of authorities
numerous
(Perm. Ed.)
care,” p.
“Due
459
Also see 13 Words
Phrases
(Perm. Ed.)
care,”
“Ordinary
seq.;
et
30
and Phrases
Words
(221 W.
Waterloo,
v.
206 Iowa
p.
seq.;
179 et
Howard
1109
N.
City
Seidelman,
v
812);
of Aurora
34 Ill.
v.
285; Stout
(26
Gallemore,
2d, 573);
Long
Kan.
Pac.
M. A.
Co. v.
138
385
(144
780).
Fund,
State
Md.
775,
Accident
156
639
Atl.
In Code
ordinary diligence
degree
defined
care
105-201
as “that
by ordinarily prudent persons
exercised
under the same
weight
ap
authority
similar circumstances.” Under the
pears
care, ordinary care,
diligence
that due
are
ordinary
interchangeable terms.
supra;
See Words and Phrases
cited
(Perm. Ed.) “Ordinary diligence,”
also 30 Words and Phrases
Chicago
p. 245, 246;
Ry.
Shelton,
R. I. & P.
Co. v.
App.),
“Ordinary
“ordinary diligence”
care” and
Special ground assigns each the on 3 of motions error charge the plaintiff might of the court either estab that “where quality injury lish the unwholesome of the food and establish to plaintiff the consumption, from its and establish that the as food by consumed them inwas condition when it the same as left custody, possession and defendant, control of the these facts sufficiently negligence themselves would forth and set defendant’s prima make case, out a facie and . the burden be . would upon the defendant to show that defendant used due care in premises.” Plaintiff in in error contends that this was correct law; expression opinion statement of was an by the proof negli-. court that the of certain facts constituted actionable gence; imposed greater a burden on the defendant than that imposed by law; province of jury, and invaded the as the negligence jury right alone infer proved has from certain facts, application ipsa loquitur. in the of the doctrine of res The charged already fully jury had as to the burden of proof being plaintiffs necessary and it was for the negligent plaintiffs to establish that the or one alleged petition particulars legal of the a pre more prefaced he ponderance evidence, giving his remarks in of the charge charge complained part by stating of and as a of such
869 if plaintiffs charge you established, “I that where either of these ex they established, point on that . . the court is have that, provides pressing opinion no whatsoever.” Code 105-1101 “Any person knowingly carelessly another un who sells to provisions any kind, being wholesome the defect unknown purchaser, by damage to the pur the use of results damages chaser or family, injury.” his shall be liable for such plaintiffs’ alleged negligence actions were based on the defendant in manufacturing placing on the market unwhole pie question. By some food—the on which error assigned merely stating, any expression court was without opinion, plaintiff one method might which the be able prove negligence part authorizing on the of the defendant inference, finding a in favor of plaintiff, unless defendant was able to show that premises. it used due care in the It was ruled in Mc Capuano Pherson v. Co., App. (3) (121 & 580), 31 Ga. S. E. “Where the established the quality unwholesome facts, food, injury with from its consumption, these in themselves sufficiently would speak of the defendant’s to make prima case; facie and until the exonerated, defendant is would be authorized apply ipsa the maxim loquitur, res and to find such issue in plaintiff.” favor of the A number of cases cited in the support McPherson case in ruling, of this and this principle same quoted approved Copeland Curtis, v. 255, 324). Ga. “If the extraordinary character of the occurrence is sufficientto raise an inference of the negligence alleged, prima facie case established, and the bur *8 den of disproving negligence, especially in a case where the parties do not sustain to each other the relation of and servant, master upon is cast the defendant, disprove negligence to upon part; his this for the reason that it is more particularly power within his explain to the character and condition of the instrumentality may have occasioned injury than power within the injured party.” Sinkovitz v. Peters Co., Land App. 5 Ga. 788 (2b) (64 93). S. E. In Chenall v. Palmer Co., Brick 117 Ga. (43 106 E. 443), S. the first case in which a court of this State directly dealt with ipsa loquitur res doctrine in a personal injury action, it was plaintiff said: “All that the should be re quired to do in the first instance is to show that the defendant
870 respon- controlled and was maintained, or
owned, operated, and thing doing the management maintenance of the and sible for kind the absence damage; which, was of a that the accident happen proof cause, ordinarily does not without external some this, cast a burden on negligence. When he shown he has has the accident proceed that defendant, may who then to show for which he was by byor other major, was occasioned vis causes Stamps County, v. 8 responsible.” Newton Ga. Also, not see (63 Payne Bottling App. 229(4) 947); v. Rome Coca-Cola S. E. App. (73 1087); 762 E. v. Savannah Lum- Co., 10 Ga. S. Davis App. 610(5) (75 Co., 986); ber 11 Ga. S. E. Atlanta Coca-Cola App. (102 542); Bottling v. Ga. S. E. Danneman, Co. 43 Ma- Bottling Crane, con Coca-Cola v. 55 Ga. Co.
879). ‘prima “A that state of which entitles facie case’ is facts jury. go have the ‘Prima facie’ party . . means case view, is, appears; ‘prima facie first as it first and a case’ apparently is one which is evidence adduced established support up of his case to the time such evidence unexplained ‘prima stands uncontradicted; and and the words evidence, used imply facie’ when to describe ex vi termini may .testimony.” such evidence competent be rebutted (Penn. Ed.), Case,” p. Words and Phrases Facie 543. “Prima charge as whole was fair to the defendant. The in- was structed at different times that evidence a matter for them expressed pass opinion on and that the no as to what had etc., they or had not been and that would be authorized proved, proved had defendant, plaintiffs find in favor of the if alleged, by preponderance their cases as of the evidence. We charge when opinion excepted to, considered are of the that the error whole, against with as a was not connection defendant, under pleadings facts of these cases. alleged by plaintiffs Furthermore, it was purchase pie Milligan upon legal duty of said W. A. “relied impose upon product not to of defendant customers of its public by packing general baking, putting on the market impure, tainted, deleterious and unwholesome article of food consumption, negligent human and that unfit for permitting putrid, tainted, deleterious, said impure, unwhole ingredient poisonous to become an some substance
871 market for sale to the product putting and the same on the public.” The public allowing and to be sold to the same pie . . a plaintiffs alleged in said also “that contained (her) him del- quantity impure, tainted, putrid, unknown to of negligently matter, per- eterious unwholesome which was mitted mixed the other con- said defendant to become with . . in pie; negligent permit- tents of said that defendant was ting impure, putrid, tainted, deleterious, unwholesome poisonous ingredient product substance to become an of its putting in public, knowing the same on the market for sale to the allowing that the same was to be used for human food, and same public.” allegations to be sold to the of By peti- the plaintiffs tions provisions pure seem to invoke the food law, enacted in 1906 and which is now contained in our Code. pure Under the food drug 42-109 act, Code article (7), an § of food shall be deemed to be adulterated “If it in consists whole part filthy, or of a decomposed, putrid or vegetable animal or provides substance.” Code 42-9901 that “It shall be unlawful § any person manufacture, for or offer sale, any sell for article drugs, of food, medicines, liquors, or which is adulterated or misbranded, any poisonous or which contains or deleterious sub- meaning Chapter stance within the a 42-1.” This law is penal give and does not purport right statute within itself Supreme to individuals. of action But the Court Donaldson v. Atlantic & Co., Great Tea 186 Ga. 213, Pacific L. R. with 456), A. dealt how a in a action, common-law present similar to the rely partly could on both ones, pure food law and the old law 105-1101, as contained Code for the purpose showing duty a breach part or on the of the defendant in such an action. said in It was that case: suit, “The however, appears to be common-law action for dam- ages resulting from negligence, plaintiff, though which the re- lying partly on both the old and the new law, only does so purpose showing a breach duty, negligence. or At common law the suit would be trespass termed an action of on the case. action, . Seemingly, . general is form of to which the Code following provision: refers in the requires ‘When the law one to do an act for the benefit of another, doing to forbear the may of that injure another, though action given no be *10 may injured party damage the accrual of terras, upon the express negli- for in actions It not uncommon 105-103. recover.’ § duty con- of as breaches allege various plaintiff to gence for the plaintiff The part of the defendant. stituting negligence on the a constituting negligence as as upon an act or omission may rely of upon or the violation circumstances, the under matter of fact law. matter of or as a negligence per se amounting to a statute as negligence to show pleaded as may be so Furthermore, the facts the pure- . . While [citing]. action the same of both classes in did public, and protection the designed for food law was plain- public duties, the than declare other express not in terms enacted benefit it was for whose public the tiff as a member of showing negligence purpose of for the provisions invoke its could duty imposed a so violation of injured by the law, of if as a matter pur- liver’ alleged ‘pig’s petition that The . . [citing]. and unwholesome in a deleterious defendant ‘was from the chased in a matter, and was by infectious condition, was contaminated These averments for food.’ decomposed condition and unfit imposed by the statute duty to a violation of sufficient show therein, upon reliance ‘adulterated’ food as defined not to sell matter of negligence per or as a constituting se such as breach contained alle- may have other law; notwithstanding petition a pleading In negligence a of fact. gations to show as matter on, is relied or federal statute action, of where a domestic cause [citing], of the law statement incorporate a unnecessary it is , opinion . . is our been . From what has change manner or any did not drug act of 1906 pure-food and Code, 105- mow stated repeal rule as the common-law § relative force and case their applied to this 1101; also that as of 1910 adoption of the Codes by the meaning were not affected again quote pro- reference, we For immediate and 1933. ‘Any knowingly person who 105-1101, follows: of as visions kind, any provisions of another unwholesome carelessly sells to use of which purchaser, being to the defect unknown be family, shall liable purchaser or his damage results to the damages against injury.’ In suit seller damages for such injured, which the by the use of unwholesome food of the defendant either knew of necessary prove it is still negligence of guilty the food or condition of unwholesome negligence be established? may how such transaction. But act only pure-food is that effect of actions, to civil As damages resulting from an action for passage whereas its before of only by allegation proof be negligence could sustained according is, negligence fact, a matter such as circumstances, applied to the ordinary prudence standard matter of law plaintiff may as a now show may establishing statutory duty; rely or he a breach of the words, In according both to the facts. other negligence, classes passage did not affect the or basis of the this statute nature action, only of care cause of but related standard negligence may be determined.” plaintiffs in these defendant with a cases breach
legal duty in manufacturing selling pie and the in question, which they contend was unwholesome and and that putrid, they were injured damaged eating and by the same. the in rulings Under case, the Donaldson in supra, plaintiff the such action as the present ones, the pure-food since enactment of the law, may show negligence as a by establishing matter of law a breach of the statutory duty. Applying rulings case, the in the Donaldson supra, pleadings to the present and evidence in the and cases, considering charge the in entirety, its the excerpt, complained of ground in 3 of the motions for new trial in these cases, was not against error the defendant. Also, c., see s. 59 Ga. 498). special
In ground 4 of each of the motions error assigned charge on the of the court that “if the defendant were negligent by virtue of produced its product a food was unwholesome person and if a consumed the same when such person knew or in the exercise ordinary of care should have known of its quality, unwholesome person then such a consuming the product could not recover. However, duty upon the part of plaintiff the would not arise until plaintiff such knew or in the ordinary of exercise care should have known of the alleged negli gence of alleged the defendant and of the unwholesome condition product. of such food principle And the I just have stated you if apply Avouldnot either plaintiffs of the in consuming prod this did in uct not know or the exercise of ordinary care . . could alleged not have known of its unwholesome condition.” The charge in last sentence of this error contends that the plaintiff The basis contention charge. of this destroyed the benefit of in this sentence mean- by the the word “either” is that use of principle apply ing jury would not conveyed to the Milligan Milligan’s A. .if A. could not have to W. case Mrs. W. pie, versa, and vice ascertained the unwholesome condition of points Milligan’s case plaintiff and the that in W. A. error out disregarded the evi- applying might have jury, charge, it “tasted a Milligan pie dence of W. A. that when he ate the charge queer,” might interpret little because the etc., Milligan mean A. and know of that both W. Mrs. must prevent from pie unwholesome condition of the in order to either tried respective recovering in actions. two cases their subject complained here together and ground motions. against it criticism directed offered the trial of the cases certain evidence On analysis including hospital pies and an of certain plaintiff, records City Department Atlanta, employee by an Health held to be regulation Agriculture, of the Commissioner court under the offered. In inadmissible circumstances argument for jury, the course counsel knowledge of “Counsel for defendant his the law skillful keeping important out some evi objections very has succeeded ar plaintiffs.” objected dence of Counsel to such for gument improper that it was critical of both the court and reprimand requested of counsel *12 for defendant counsel by jury instruction to the that such the court plaintiff The then made improper. was court a statement that argument right objections had the to make to the for defendant counsel plaintiff trial the throughout the and that counsel for evidence fully, right argue pro case ordered case to had the plaintiff counsel for nei argument The or statement of was ceed. court, nor the critical of counsel defendant but on the ther complimentary legal of the contrary, ability of defendant’s legal court in judgment sustaining and the ob counsel counsel. error jections interposed defendant’s No harmful ground this against the defendant is shown of the motion. 6, special grounds 7, 8, and 9 of the In motions error is as the failure of the signed court certain re- (1) are what cases “These charges, as follows: quested brought and they were that negligence cases, is, in law called negligent in some theory the defendant proceed upon the that putting on the baking, packing particulars in the particular or deleterious, tainted, impure, putrid, contained pie market a recover, In order poisonous substance. unwholesome evidence that plaintiffs by preponderance must of the show be- substance to negligently permitted poisonous defendant said hu- pie, which was sold for come mixed with the contents of the all lawful inferences consumption. man If evidence and neg- you therefrom fails to convince that the defendant was thus mixed ligent permitting poisonous said to become substance pie, charge you with the I that would contents of then (2) charges “The you be entitled to recover.” that under pleadings case, presumption and the evidence in no negligence part on the of the from simple defendant arises facts plaintiffs eating ill shortly pie question. that were after of the one or more par- some petitions plaintiffs proved by ticulars as set out in the must be proved, of the evidence and if not preponderance plain- so (3) entitled to recover.” would not be “The tiffs court instructs you you if should believe that some one or more of the in- poisonous pie contained a gredients of said substance, that the ip defendant would not be liable these cases unless it is shown your presence that the poisonous satisfaction of said substance known to or substances was the defendant at the time put pie was on market for human consumption, or that, in the ordinary care, exercise of the same should have been known (4) the defendant.” “Some brought evidence was out in these respecting the ingredients cases sources from which the pur- by the defendant. The court charges you chased as to that evi- you if believe from dence that it that defendant used ordinary places in the selection of the care and firms from whom said purchased materials were and had knowledge no of any poisonous therein, prior substance and no reason from dealings with said general reputation from the firms, of said firms that poisonous were liable to be contained substances therein, and further, ordinary by the exercise of care in the mixing of said ingredients *13 poisonous substance could said not have been pro- discovered, material, in you vided believe that such a substance existed recover this charge you plaintiff then I could not in phase legal principles The these requested the case.” charges pleadings applicable which and correct under and charge. evidence in in the cases were covered the court his portions requests given inapplica- Other of the not in pleadings ble and incorrect under the and the evidence. Conse- quently, judge failing give the trial did err in requested not charges.
Special ground 10 of the motion in the case of A. Milli W. gan assignment of error based on the contention Recovery $2000 verdict was excessive. sought was case pain and suffering, for damages measure of enlightened impartial jurors, conscience of nothing appears and in the record on justify which this court could an inference of gross mistake or undue Code, bias. See 105-2003, 105-2015. §§ ground This of the motion in the action of A. Milligan W. is with out merit. in favor plaintiff verdict in each case au
thorized the evidence which is set out in the statement of the case. No error of law appears, and the court did not err in over ruling motion defendant’s for a new trial each of these cases.
Judgment All Judges concur in ridings all affirmed. opinion, except 4(a) 4(b). divisions J., J., C. and Parker, 4(a) 4(b), concur in divisions Sutton, and MacIntyre, J., and Townsend, J., do concur in all P. is said 4(a), 4(b). division but do concur in division and Gardner, JJ., 4(a) 4(b), dissent from divisions Felton and from the judgment of affirmance. dissenting. My J., opinion excerpt is that the from
Felton, complained ground of in charge, three of the amended mo- trials, tions for new is erroneous. The charge complained isof plaintiff might as follows: “Where either establish the unwhole- quality injury some of'the food and establish to the from consumption, its and establish that the food as consumed them in the same condition when it left the custody, possession defendant, and control of these facts themselves would suf- ficiently set forth defendant’s and make prima out a case, then, gentlemen, facie upon burden would be *14 prem- in the used due care to show that the defendant “(a) Be- exceptions charge follows: ises.” The to this (b) the law; of the Because an statement cause it was incorrect proof the that the expression part an the of court same was on part of negligence on the of facts constituted actionable certain (c) imposed greater Because the same burden defendant; (d) the imposed by Because upon law; defendant than that the in that province jury an same amounted to invasion of the negligence must be the instructed the court that latter was facts, pre- the law proof the certain whereas inferred from of ipsa is loquitur wherein the doctrine res scribed, in a case right exclusively the to applicable, jury that the alone has facts. no negligence proven infer from The court has certain power authority doing.” charge because or so error negligence from in the facts stated jury to infer the required it showing diligence affirmative absence of an charge in the the ipsa loquitur the rule of gave It to res the defendant. law, Georgia, which is not the law presumption of force aof per se, facts as proof of those or it treated question written on I much been this that do So has is not true. any charge plain the error in writing more but is so not relish clearly Georgia that, refrain. It law of I can not indisputable cases, case plain predi- this is not except upon happening basis, proof of of such occur- cated on happened negligence, etc., jury not have without would rence as infer required but not to that the defendant was is authorized language in Georgia is some There loose a few the negligent. presump- that the rule treated as a might indicate cases which clearly all the cases will show the examination of con- tion but majority I that what true. believe confuses trary to be majority opinion, only two concur is that the case, and codified in Code 105-1101. That Code law is section common is and would be if there were what law no such merely states part Food penal the Pure Law. It is not a not a It is section. selling requires provisions of unwholesome statute, carelessly. jury When the knowingly or court told the be done in the aforesaid excerpt, of the .facts stated proof upon be on the defendant exonerate itself he ex- burden would acts would opinion negligent as to what be and this a pressed an negligence; can not do uhless the law itself defines the predicated not which it does not do this case. This case is negligence per negligence. se. It is based on common-law Under judge’s charge, any evidence, if the defendant had not offered proved and if the had stated in charge facts jury required satisfaction of the it would have been find plaintiff. say for the I jury permitted that the been should'have to find favor of the defendant even if the facts stated proved, for the reason our law that under may may apply ipsa may or the rule of res loquitur, they *15 infer proof refus'e to from the of such facts as authorize application of rule. It prolong long would discussion too to discuss cite out Georgia plain side authorities. I only law is and cite a few cases: Palmer Brick (1-4) Co. v. 119 Chenall, (supra); Ga. 837 Macon Bottling Coca-Cola v. Crane, App. Co. 55 Ga. (supra); 573 Coch Langley Mfg. (63 rell v. Co., App. 244); 5 Ga. 317 E.S. Monahan v. Realty National 4Co., App. (62 Ga. 127); 680 S. E. Bowers v. Co., W. Amend App. (35 15). Fred 72 Ga. 714 2d, It is S. E. jury error to instruct a ordinary requires what care except where particular a negligence. act is declared law to be Farrar v. Farrar, (5) (152 41 Ga. 278), and cases cited. See especially Gainesville Bottling Coca-Cola Stewart, Co. v. 51 Ga. App. 102(4) (179 S. E. 734), proper which the res charge in a ipsa loquitur case is shown. especially Augusta See also Ry. & Electric Weekly, Co. v. Ga. 384 S. E. 444), to the effect ipsa loquitur that in a res it is case erroneous for the court to charge given a jury state of facts either or constitutes, prima proof of, negligence, facie statutory affords when there is no definition-—Section 105-1101 does not seek to define negligence. prima The fact that a out makes a facie case does not justify charge effect, a to that without more, prima unless the facie case is one a matter If jury as of law. say must whether prima there facie case even is a where disputed facts not charge prima it a is error to 'that facie case been has made and upon proof burden shifts of stated facts. Discussions opinions given textbooks are often erroneous when in charge jury get help a prima to so we no from of a definitions facie case Capuano Co., here. McPherson v. & supra, a ruling was a on could not surely if a nonsuit was erroneous the court nonsuit and in the ab- law the defendant was liable say as a matter of Curtis, applies Copeland The same v. of exoneration. sence excerpt court, immediately before the supra. The fact that charged expressed opinion excepted to, that it no as not, excerpt proved had been whether the facts stated meaning he help any. Nevertheless, did matters of what proved if told them was that these facts negligent matter as a of law unless the defendant introduced proved charge other evidence and otherwise. I think the approving and that in error this court reverses the fixed law contrary Supreme of this State. It is to the Court decisions misappli- will create confusion unless this court corrects its own cation of the law. course, merely applies, of is stated above
What involving negligence, common-law where case as it relates applies. ipsa loquitur rule of res 4(b) well opinion, 4(a), division as as I dissent from alleged proved that even if a case is which could be ground Law, of the Pure Food there by showing a violation is no evi- authorizing finding dence that there was a violation of the Pure Law, pie there no evidence to Food show that contained vegetable putrid or unwholesome or animal or consisted sub- *16 And even if the evidence did authorize such a finding, stance. solely circumstantial, and the was error on same negligence. improper common-law principle applied It is just a what judge circumstantial evidence for a to state prima make facie case prove a fact or out unless it is true will before, predi- stated this dissent is matter of law. As as a majority that the holding by stated facts cated on excerpt excepted proved negligence as a matter proved as a matter of that the facts law con- of law in the sense matter negligence or showed as a of law that the Pure stituted violated. Food Law was say that, Gardner, J.,
I am authorized in this concurs dissent.