8 S.E.2d 443 | Ga. Ct. App. | 1940
Lead Opinion
Mrs. L. A. Fortson brought her action against H. J. Heinz Company, for damages which she alleged were caused from eating a can of cream of tomato soup, prepared and put on the market for sale by the defendant. She alleged that the can contained “impure, tainted, poisonous, unwholesome, and deleterious matter which the defendant had negligently allowed to become
The defendant introduced evidence as to the manner in which this soup was prepared, going into detail as to the selection and preparation of tomatoes that were used, the selection and preparation of the cream, the way in which the soup was prepared for market, the time it was cooked, and the temperature to which it was subjected. There was testimony that it would be impossible for bacteria to live in a can subjected to such treatment, and that the methods used and the care taken in the preparation of this can
In considering this evidence it will be borne in mind that any recovery by the plaintiff is based on the negligence of the defendant, which was that it allowed unfit and unwholesome products to be placed in its can, and that the plaintiff was injured as a result thereof. She showed that she was made sick, and that before the time she ate the soup she was normal and her digestive system was all right. Her sickness was diagnosed as food poisoning. From the surrounding facts it might be inferred that the bowl of soup caused this condition, and that because she was normal before this time wholesome food would not have caused her to be sick. There was no direct evidence that the soup contained any impure, unwholesome, or unfit ingredient. Such testimony is circumstantial evidence which may or may not support a theory as to the cause of the sickness. The Code, § 38-123, lays down the rule to be applied to such facts in this State: “In arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved.” These things must be shown: (1) the soup caused the sickness; (2) the soup was unwholesome and harmful; (3) the unwholesome condition was the result of the defendant’s negligence. Was the soup alone the cause of the sickness? This soup was not eaten directly from the can. It had added to it a half-can of water, a few crackers, and some “hot sauce.” The circumstantial-evidence rule as above stated is usually called the “res ipsa loquitur” doctrine. In the usual course of things a person in a normally healthy condition will not be made sick by eating cream of tomato soup. Where circumstances are relied on “which speak for themselves,” they should speak clearly and unambiguously. If two equally consistent theories are supported by the evidence it can not be said that the evidence preponderates to the one rather than to the other. Judge Powell in Georgia Railway & Electric Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076), laid down the true rule to be applied in cases of this character; “Where
While a manufacturer is not an insurer of his product (Armour v. Miller, 39 Ga. App. 228 (2), 147 S. E. 184), yet an inference of negligence may arise against one who owned, controlled, and manufactured such a product, when its original state has not been changed since it came into the possession of the injured party. If the injured party can show that neither he nor any one else has done anything which would change the condition of the thing causing the damage, and the damage is of a nature that would not ordinarily or usually occur except where some one has been negligent, a jury may be authorized to find that there is a logical connection between the injury and the manner in which the thing or article was prepared. In 45 C. J. 1298, § 857, it is said: “In those cases in which the doctrine of res ipsa loquitur applies and an inference of defendant’s negligence is permissible from the mere happening of the accident, or where a presumption of negligence results from the admitted or proven acts of defendant, the question
We think the uncontradicted evidence for the defendant in this case demanded a finding by the jury that it exercised due care in the handling and preparation of its products, which'methods were equal or superior to those usually and commonly accepted as meeting all requirements to insure wholesome and proper food. If the defendant showed itself to be free from negligence, it was not-incumbent on it to show what was the cause of the damage. Unless the defendant’s negligence was itself the cause of the injury, its failure to show what was the cause would not create liability against it. As was said in Slaughter v. Atlanta Coca-Cola Bottling Co., 48 Ga. App. 327 (172 S. E. 723): “If the defendant was not negligent and did exercise ordinary care, and any foreign substance got into the bottle notwithstanding ordinary' care, that would be what the law designates as an unavoidable accident, for the occurrence of which the defendant would not be liable.” This principle is not new in this State. Beginning with Gainesville, Jefferson & Southern R. Co. v. Edmondson, 101 Ga. 747 (29 S. E. 213), which was a case against the railroad company for negligently setting fire, it was held in effect that where the plaintiff relied entirely upon circumstances to make out his case, and in that case the plaintiff established his claim by proof of circumstances which would have supported an inference and a verdict that the defendant’s negligence caused the -fire, and thus placed the burden on the defendant of rebutting this- inference, yet the defendant carried this burden when it showed by uncontradicted evidence that it had complied with the duties required of it. In Southern Ry. Co. v. Pace, 114 Ga. 712 (40 S. E. 723), it was said: “The evidence offered to establish the fact that the fire was communicated- to the-property of the plaintiff from an engine of the defendant was entirely circumstantial, but was of such a character as to authorize-a finding that the fire was so communicated. This fact having been established, a presumption of negligence arose against the company, and the controlling question in the present case is whether
Conceding, but not deciding, that sufficient evidence was introduced to support an inference of negligence on the part of the defendant, .this inference, dependent on circumstances, must give way to the uncontradicted evidence.of the defendant in rebuttal, that the' care taken and the methods used in the preparation of this soup measured up to what was required and necessary for the protection of the general public. Inferences raised from proved facts will not prevail over direct evidence which rebuts such inferences. It is true that what acts do or do not constitute ordinary care are questions for a jury. It is also true that under the undisputed facts shown .by the defendant’s evidence in this case no jury was authorized to find that such evidence showed a lack of ordinary care on the defendant’s part. Such direct, uncontradicted evidence will prevail over inferences of negligence drawn from proved circumstances in this case. The court erred in overruling the
Judgment reversed.
Rehearing
ON MOTION TOR REHEARING.
Movant insists that, having alleged in his petition “that in said can of soup was a quantity, unknown to the plaintiff, of impure, tainted, poisonous, deleterious, and unwholesome matter which was negligently permitted by the defendant manufacturer to become mixed with the contents of this can,” and that “defendant was negligent in permitting said putrid, impure, tainted, deleterious, and unwholesome substance to become an ingredient in said product,” and her evidence having been sufficient to show that such allegations were true, she showed a violation of the Code, §§ 42-109, 42-115, 42-9901, and thus showed negligence per se because of a breach of a statutory duty.
This court in Armour v. Miller, 39 Ga. App. 228 (supra), in a petition in almost the identical language used here, said that these sections do not apply under such allegations, and that “the manufacturer is not an insurer of his product, and in an action against him the plaintiff must allege and prove either wilful misconduct or negligence in allowing the product to become unwholesome.” This ruling was approved by the Supreme Court in Armour v. Miller, 169 Ga. 201 (149 S. E. 698), where Judge Jenkins said that subsection 5 of § 42-109 of the Code refers to any “added poisonous or other added deleterious ingredient which may render such article injurious to health,” that the “use of the word 'added’ . . can not be regarded as meaningless,” and that “it was intended to provide that any article of food manufactured and sold in this country . . should not be deemed to be adulterated merely because it contained a poisonous or deleterious ingredient, . . but that all other articles of food, whether simple or compound, were not to be deemed adulterated on account of the presence of a poisonous or deleterious ingredient, unless such ingredient was 'added’ to the article of food in question, that is, was an ingredient foreign to its natural or normal constituency.” Judge Bell in Donaldson v. Great Atlantic & Pacific Tea Co., 186 Ga. 870, 879 (199 S. E. 213), expressly stated that nothing there said was contrary to the decision in the Miller case, supra. It will be noted that in the Donaldson case the provisions' of subsection 7,
Rehearing denied.
Lead Opinion
The evidence offered in this case to show the alleged negligence of the defendant was entirely circumstantial. Conceding that it was sufficient to establish a presumption of negligence against the defendant, the uncontradicted direct evidence of the defendant was that it had used all ordinary care in the preparation and handling of the product claimed to have caused the injury. Such uncontradicted evidence was sufficient to rebut the presumption of negligence raised by the circumstantial evidence.
The defendant introduced evidence as to the manner in which this soup was prepared, going into detail as to the selection and preparation of tomatoes that were used, the selection and preparation of the cream, the way in which the soup was prepared for market, the time it was cooked, and the temperature to which it was subjected. There was testimony that it would be impossible for bacteria to live in a can subjected to such treatment, and that the methods used and the care taken in the preparation of this can *132 were even better than those ordinarily used and accepted as the standard of care required by manufacturers of such products generally. This evidence for the defendant was not contraverted in any way by any of the testimony. The jury returned a verdict for $1200 in favor of the plaintiff. The defendant excepted to the overruling of its motion for new trial.
In considering this evidence it will be borne in mind that any recovery by the plaintiff is based on the negligence of the defendant, which was that it allowed unfit and unwholesome products to be placed in its can, and that the plaintiff was injured as a result thereof. She showed that she was made sick, and that before the time she ate the soup she was normal and her digestive system was all right. Her sickness was diagnosed as food poisoning. From the surrounding facts it might be inferred that the bowl of soup caused this condition, and that because she was normal before this time wholesome food would not have caused her to be sick. There was no direct evidence that the soup contained any impure, unwholesome, or unfit ingredient. Such testimony is circumstantial evidence which may or may not support a theory as to the cause of the sickness. The Code, § 38-123, lays down the rule to be applied to such facts in this State: "In arriving at a verdict, the jury, from facts proved, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved." These things must be shown: (1) the soup caused the sickness; (2) the soup was unwholesome and harmful; (3) the unwholesome condition was the result of the defendant's negligence. Was the soup alone the cause of the sickness? This soup was not eaten directly from the can. It had added to it a half-can of water, a few crackers, and some "hot sauce." The circumstantial-evidence rule as above stated is usually called the "res ipsa loquitur" doctrine. In the usual course of things a person in a normally healthy condition will not be made sick by eating cream of tomato soup. Where circumstances are relied on "which speak for themselves," they should speak clearly and unambiguously. If two equally consistent theories are supported by the evidence it can not be said that the evidence preponderates to the one rather than to the other. Judge Powell in Georgia Railway ElectricCo. v. Harris,
While a manufacturer is not an insurer of his product (Armour v. Miller,
We think the uncontradicted evidence for the defendant in this case demanded a finding by the jury that it exercised due care in the handling and preparation of its products, which methods were equal or superior to those usually and commonly accepted as meeting all requirements to insure wholesome and proper food. If the defendant showed itself to be free from negligence, it was not incumbent on it to show what was the cause of the damage. Unless the defendant's negligence was itself the cause of the injury, its failure to show what was the cause would not create liability against it. As was said in Slaughter v. AtlantaCoca-Cola Bottling Co.,
Conceding, but not deciding, that sufficient evidence was introduced to support an inference of negligence on the part of the defendant, this inference, dependent on circumstances, must give way to the uncontradicted evidence of the defendant in rebuttal, that the care taken and the methods used in the preparation of this soup measured up to what was required and necessary for the protection of the general public. Inferences raised from proved facts will not prevail over direct evidence which rebuts such inferences. It is true that what acts do or do not constitute ordinary care are questions for a jury. It is also true that under the undisputed facts shown by the defendant's evidence in this case no jury was authorized to find that such evidence showed a lack of ordinary care on the defendant's part. Such direct, uncontradicted evidence will prevail over inferences of negligence drawn from proved circumstances in this case. The court erred in overruling the *137 motion for new trial. Under the view we take it becomes unnecessary to pass on the special assignments of error.
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur.
This court in Armour v. Miller,
Rehearing denied. Broyles, C. J., and MacIntyre, J., concur.