58 Ga. App. 274 | Ga. Ct. App. | 1938
Lead Opinion
E. L. Davis brought this suit against W. L. Williams trading as Dixie Service Stores (hereinafter referred to as the dealer), and the Waycross Coca-Cola Bottling Company (hereinafter referred to as the manufacturer), for recovery of damages by reason of injuries received from drinking of the contents of a bottle of coca-cola which contained particles of glass. W. L. Williams is a resident of Bacon Codnty, and operates a retail store there in which coca-cola is sold. The Waycross Coca-Cola Bottling Company, having its principal office and place of business in Waycross, Ware County, Georgia, and having no legal residence in Bacon County, was engaged in the bottling business, and sold and delivered to W. L. Williams the bottle of coca-cola from which the plaintiff received his injury. The defendants were sued as joint tort-feasors in the superior court of Bacon County. The petition in part alleges: “The said drink known as coca-cola is bottled and sold in glass bottles of uniform size about 8 inches high, about 2 inches round and contains about 8 fluidounces. The bottles are closed with metal caps fitted over the mouth of the bottle. The said substance is light-wine colored, and the bottle and .contents are transparent. When served the cap is removed from the bottle, and [the bottle is] handed to the customer, and the contents usually drunk from the bottle. On the occasion.in question the coca-cola served the plaintiff was in an inclosed trans
The question for the determination of this court is whether a cause of action is set out in the plaintiff’s petition, against the retail dealer. The suit was brought against joint tort-feasors, the
But in the instant case, by looking through the transparent coca-cola bottle the dealer could have seen the particles of glass in the coca-cola; and therefore the reason for the rule, that there was no possible way for the retailer, consistently with the practical use of the product, to know that the glass was in the coca-cola, did not exist; and we think that it was a question for the jury to decide whether the defendant was negligent in failing to see the glass in the coca-cola. “In the ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article of food may be so serious and prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased.” Wiedman v. Keller, 171 Ill. 93 (49 N. E. 210); Clement v. Rommeck, 149 Mich. 595 (113 N. W. 286, 13 L. R. A. (N. S.) 382, 119 Am. St. R. 695). “The implied warranty of the wholesomeness of food placed on sale, whenever it exists at all, arises as an implication of the common law. The liability does not rest so much upon an implied contract as upon a violation or neglect of a duty voluntarily assumed.” Flessher v. Carstens Packing Co., supra; Bishop v. Weber, 139 Mass. 411 (1 N. E. 154, 52 Am. R. 715); Tomlinson v. Armour & Co., 75 N. J. Law, 748 (70 Atl. 314, 19 L. R. A. (N. S.) 923). The negligence consists in offering for sale food not known to be wholesome, to the purchaser’s injury. It is the duty of the retailer to know that the food is not unwholesome. The negligence consists in the violation of the duty to know, under such circumstances, what he should or ought to have known, and to refrain from causing the injury. Flessher v. Carstens Packing Co., supra. Whether the action be one on warranty or negligence, it comes to the same thing. It sounds in tort. McPherson v.
We do not think we should rule to the effect that retail dealers, as a matter of law, are not liable for imperfections in provisions sold in sealed packages, put up by and procured from a reputable manufacturer, regardless of whether or not such imperfection could have been discovered by the use of reasonable care on the part of the dealer. The true and reasonable rule, and the one which seems to have been followed by the courts of this State, is to the effect that retail dealers may be liable for selling provisions containing injurious substances, whether the same be sold in bulk or in the original unbroken package put up by and procured from a reputable manufacturer, where the dealer fails to exercise reasonable care in selling them. McPherson v. Capuano, supra. If the goods sold are in the original package sealed and unbroken, and it is a perfect appecuring package, and it is impossible, in the practical use of the package in the retail trade, to discover the hidden unwholesomeness or imperfection without breaking the package, and the dealer has no positive knowledge, or notice amounting to imputed knowledge, of the hidden imperfection,
The dealer is not an insurer. It is not necessarily his duty to inspect each bottle of coca-cola that he sells. The law does not require him to break and inspect every sealed package which he buys from a manufacturer. This would be impractical in the conduct of his business. But the law does say to a dealer in food for
Judgment reversed.
Rehearing
ON MOTION FOR REHEARING.
This case is not based primarily on the duty of the dealer of coca-cola to inspect, but is based primarily upon the duty of the dealer to know (even though that knowledge be imputable knowledge only) that the food is not unwholesome; and where, in addition to the facts alleged in the petition and set forth in the opinion above, it was also alleged that "in drinking the first of the coca-cola plaintiff did not detect any defects or that there was anything in said coca-cola until after having drunk half or more of said bottle of coca-cola he detected fine, hard particles therein, and upon examination found small pieces of glass therein; that he swallowed at least two if not more of said hard matters or particles, the exact number of which he can not give; that the particles upon examination of the remaining undrunk coca-cola in your petitioner’s mouth upon investigation he discovered that they were glass, that he found in said bottle of coca-cola a piece of curved glass about one inch long and about five-sixteenths of an inch wide, and another piece of glass just a little shorter in length and a little smaller in width,” we think it may be reasonably inferred from these pleaded facts and the other alleged facts that the glass in the coca-cola was in such size and character as to amount to a defect which a reasonably prudent dealer should have discovered before delivering it to the customer. From all the facts pleaded, we think a conclusion is fairly deducible that the defect was reasonably observable. See King Hardware Co. v. Ennis, supra. This case sounds in tort, and the negligence as pleaded consists in the violation of the duty to know, under the circumstances, what the dealer should or ought to have known, and to refrain from causing injury.