46 Ga. App. 220 | Ga. Ct. App. | 1932
(After stating the foregoing facts.) There are various forms of actions which may be brought to recover for injuries sustained by reason of the sale of unwholesome or deleterious food products, and this petition must, if possible, be given that construction which will sustain the suit. See Benjamin-Ozburn Co. v. Morrow, 13 Ga. App. 636 (79 S. E. 753). We arrive at the nature of this action by process of elimination. It iks not an action identical with those actions against a restaurant or café, as illustrated by Roe v. Louisville & Nashville Railroad Co., 29 Ga. App. 151 (113 S. E. 823), McPherson v. Capuano, 31 Ga. App. 82 (121 S. E. 580), and cases of like character, although they too are predicated on negligence. We do not construe the action as being brought under the Civil Code, § 4460, which provides that “A person who knowingly or carelessly, sells to another unwholesome provisions of any kind, the defect being unknown to the purchaser, and damage resulting to the purchaser, or his family, or his property, shall be liable in damages for such injury.” Neither do we con-true this action as one brought under § 4135 of the Code upon an implied warranty as to the wholesomeness of the food product, for the petition expressly alleges negligence upon the part of each defendant. We therefore conclude that the action is in effect a common-law action for negligence such as that involved in the case of Fleetwood v. Swift, 27 Ga. App. 502 (108 S. E. 909).
Counsel for the defendant earnestly contend that its demurrer to the plaintiff’s petition should have been sustained for the reason: "1. That defendant Besser had an opportunity to inspect the coffee after it arrived at his store, and was negligent in failing so to do, and such negligent omission was an intervening cause which relieved defendant, Maddox Coffee Company, of any liability. 2. That the plaintiff used this coffee as a food, which said use was not the proper or foreseeable use for which said coffee was prepared, and said act of eating rather than drinking said product was an intervening act of contributory negligence, preventing any recovery against Maddox Coffee Company.” These questions will be discussed in the foregoing order.
The first contention of the manufacturer is to the effect that the negligent omission of the retailer to inspect the coffee was such an intervening cause of plaintiff’s injuries as to relieve the manufacturer of liability. We do not conceive such to be the law. Section
The second ground of general demurrer presents a more doubtful question than that above discussed. Was the injury to plaintiff a natural consequence of defendant’s negligence, or was it too remote to authorize a recovery? IJnder the code section above cited, if the damages are only the imaginary or possible result of the tortious act, they are too remote to be the basis of recovery. As stated by our Supreme Court, “The rule is that in order to recover for an injury alleged to have resulted from the negligence of another, the injury must be the natural and probable consequence of
The trial judge did not err in overruling the general demurrer filed by defendant Maddox Coffee Company to plaintiff’s petition.
Judgment affirmed.