30 S.E.2d 365 | Ga. Ct. App. | 1944
1. Where a municipal ordinance provided that all meats and meat-food products, except cured meats, should be inspected and approved in certain ways before sale for human consumption, it was negligence per se on the part of the defendant knowingly to sell for human consumption a meat or meat product covered by the ordinance without first having complied with it.
2. The testimony of the plaintiff and other members of her family that they were all rendered ill and their health injured as the result of eating meat purchased of the defendant, and not the result of any other food eaten, or any other cause, constituted sufficient evidence to authorize the jury to find that the eating of the meat caused the sickness of the plaintiff, notwithstanding expert testimony and other evidence offered by the defendant to the effect that the meat was not found to contain any appreciable chemical poison, if any, and to the effect that others eating the same meat were not injured or made ill.
The evidence tended to show the following: The plaintiff purchased from the defendant some souse meat or hogshead cheese. She inquired as to its freshness and was informed that it was fresh and all right. It looked perfectly good and tasted all right. After eating a little of the meat the plaintiff became very sick. She had for her supper along with the meat some biscuits, butter, and milk. Her father, her husband, and her daughter ate some of the meat; and all of them became sick. Two of them drank buttermilk, or clabber, and two drank sweet milk. There was nothing wrong with the biscuits or the milk. Before they ate supper they were all as well as usual, and all seemed to have been taken sick about the same time, near midnight, after having eaten supper around 6 or 6:30 o'clock in the evening; and they were sick alike in that they were all vomiting. Mr. Irwin, who operated the meat-market for the defendant, and who sold the meat to the plaintiff, went to see her sometime afterwards and admitted to her that the meat had not been inspected as required by an ordinance of the City of Thomasville, in which municipality the sale took place. Other circumstances and details respecting the character and extent of the sickness of the plaintiff, not material to a decision of the issue here involved, appeared from the testimony in behalf of the plaintiff. *150
The evidence for the defendant tended to show that the meat sold to Mrs. Dupee was purchased by the defendant for resale in the market operated by it, from a farmer-customer of the defendant's store not identified by name or otherwise, probably on the same day it was sold to the plaintiff. The meat was tested by Mr. Irwin, who ate some of it when he bought it for the market, and it seemed to him to be very nice. He sold several orders of it to other people, approximately four or five, and had no complaint from them that it was not all right. Others working in the store ate some of the meat, and it did not make any of them sick. When the city inspector heard of the sickness of the plaintiff and members of her family, he took the rest of the meat from the defendant's market and sent it to the State chemist in Atlanta for analysis. The chemist fed some of the meat to mice to see if it contained any chemical poison. The mice lived and he concluded that it contained no chemical, or appreciable chemical poison, if any. Aside from the tests on the mice he did not undertake to get any chemical analysis or reaction for poison. Mr. Irwin regarded the meat as cooked meat, and did not feel that an inspection was necessary; that fresh meats only had to be inspected.
1. On the first appearance of this case in this court, it was held that "a finding would be authorized that if the defendant had complied with this ordinance [referring to the ordinance involved and set out in the decision] and had the meat inspected before selling it, its unwholesome and contaminated condition would have been discovered." Dupee v. Great Atlantic PacificTea Co., supra. Under that ruling it was negligence per se on the part of the defendant to sell the meat or meat-food product without complying with the ordinance requiring inspection. The negligence of the defendant therefore appears as a matter of law in the unlawful sale to the plaintiff of meat products found by the jury to be unwholesome and unfit for human consumption.
2. The big question in this case is whether the evidence as to the alleged unwholesome condition of the meat was sufficient to authorize the verdict in favor of the plaintiff. Proof by one claiming an injury from eating meat-food products sold to her by another merely that she ate the food and thereafter became sick would not, without more, establish the allegation that the food was *151
unfit for human consumption; yet where, as in this case, the testimony of several witnesses tended to show that the plaintiff and three other members of her household, all apparently in good health, ate small quantities of the meat alleged to have been impure, and all of them thereafter, and within about the same period of time, became suddenly and violently ill, the only other food eaten with the meat being biscuits and either clabber or sweet milk, and the illness of the several persons being accompanied by the same general manifestations, such as pains in the stomach, nausea, and vomiting, such evidence, if its credibility satisfied the jury, was sufficient to make a prima facie case for the plaintiff against the seller of the meat.McPherson v. Capuano,
Negligence of the defendant in selling the meat without having it inspected as required by the city ordinance clearly appears, and the only extent to which the jury may have applied the resipsa loquitur doctrine was on the question as to the cause of the illness of the plaintiff, that is, whether it was brought about by the eating of the meat or by some other cause. The plaintiff testified that, "he [Mr. Irwin] asked me did the souse meat make us sick. I told him it did," and on cross-examination she said, "that meat had to be poisonous," and "it made us all sick." The plaintiff's daughter testified in part as follows: "My health was all right before eating this souse meat. Never had any trouble with my stomach. My health was perfect up to that time. It gave me upset stomach, nausea, and vomiting, accompanied by pain in my stomach, — intense pain for about three hours." She also testified: "The condition of my family was good before eating this souse meat . . after eating it they all had upset stomach, nausea, and vomiting." The plaintiff's father testified that he ate some of the hogshead cheese, two little pieces, "thin as a wafer," and thereafter was "as sick as I ever was in my life, in every way."
We think the jury were authorized to conclude that these witnesses knew better than anyone else what caused their sickness, and that their testimony, together with the surrounding facts and *153
circumstances, made a prima facie case. "Whether a person was injured, and the extent of his injury and consequent suffering, is entirely a question for the jury; and where he testified that he was injured and suffered, the jury can accept and credit his testimony based on his knowledge, in preference to the evidence of `a whole college of physicians,' that he was not injured."Southern Railway Co. v. Tankersley,
There being no error of law complained of, and the only question being the sufficiency of the evidence to sustain the verdict, the judgment refusing a new trial is affirmed.
Judgment affirmed. Sutton, P. J., concurs. Felton, J.,dissents.