Opinion
34691.
DECIDED JUNE 16, 1953.
Damages. Before Judge McLanahan. Elberton City Court. April 16, 1953.
J. T. Sisk, for plaintiff in error.
H. B. Payne, Robert M. Heard, contra.
The trial court's failure to charge upon the existence of negligence per se on the part of the defendant for a violation of Code § 42-109 (7) was not reversible error under the facts of this case, as the evidence demanded a verdict for the defendant.
DECIDED JUNE 16, 1953.
Mrs. Willie Payton brought an action for damages against James Robert Lee, doing business as Elberton Drug Company, and in her petition as amended alleged substantially the following: The defendant conducts in the Elberton Drug Company "an eating place" where food is served to the public for charge. On Saturday, June 23, 1951, at about six-thirty o'clock in the evening, the plaintiff, as a customer, entered the defendant's place of business and ordered for consumption a "cold plate" consisting of potato salad, cheese, tomatoes, ham, etc., of which she ate a part and paid the defendant. In addition to the contents of the cold plate already enumerated, there was on the cold plate either ham or some kind of composition meat product, the name of which is unknown to the plaintiff, boiled egg, potato chips, and a leaf or so of lettuce. The defendant is well aware of what composed the contents of the plate, having prepared and served it, and, if not personally familiar with such contents, is chargeable with notice thereof. The potato salad served on the plate was composed of vegetable matter, consisting of Irish or white potato, mayonnaise, pickle, onion, all of which the plaintiff was able to identify; and the potato salad was unwholesome, putrid, filthy, and unfit for human consumption, and "the serving of said unwholesome food to the plaintiff was negligence per se on the part of the defendant, and was carelessly served to her and she had no means of detecting the unwholesomeness of said salad until after she had consumed the same and was sickened thereby." The aforesaid food, and particularly the potato salad, on the cold plate was unwholesome and unfit for human consumption, and was carelessly sold to the plaintiff by the defendant as wholesome food. The defendant, having prepared and served the food, knew or should have known of its unwholesomeness. After eating the food, the plaintiff became nauseated and about nine o'clock that evening of the same day on which she ate the food she was forced to call a physician and was carried to the hospital for treatment. She suffered severe and agonizing nausea, severe pain and cramps in the abdominal region, vomited violently for a long period of time thereafter and remained in the hospital under treatment until the following Tuesday, and she has not fully recovered from the illness to the time of filing suit. She has been damaged generally in the sum of $3000, and has been specially damaged by incurring medical and hospital expenses of $51.40.
Without demurring to the petition, the defendant filed his answer of general denial. Upon the trial the jury returned a verdict for the defendant. The plaintiff's motion for new trial, based on the usual general grounds and two special grounds, was overruled, and she has appealed to this court to review the errors alleged therein.
Of the assignments of error in the motion for a new trial, the only ones insisted upon by counsel for the plaintiff in his brief filed in this court are those contained in the two special grounds and the errors assigned in these grounds are essentially the same — namely, that the trial court erred in its refusal to submit to the jury the question of the existence of negligence per se arising from a violation of Code § 42-109 (7), which provides: "If it [an article deemed to be adulterated within the meaning of the food and drug laws] consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter." Under the view which we take of the evidence in this case, when it is viewed in the light of the sole issue of whether a violation of Code § 42-109 (7) was established, the failure of the trial court to charge on the issue of negligence per se does not constitute reversible error, as the verdict for the defendant was demanded.
According to the plaintiff's testimony, she ate some potato salad in the defendant's place of business at about 6:30 p. m. on June 23, 1951. At about 9 p. m. of the same evening, she became nauseated and her physician directed that she be hospitalized. She suffered severe pain and cramping in her abdominal region and vomited violently until the following Tuesday, during all of which time she suffered violent headaches, and her physician diagnosed her affliction as food poisoning, and she was certain that the potato salad had been the cause of her illness. At about 10 a. m. of the day on which she ate the potato salad, she had eaten a piece of toast and had drunk a cup of coffee and she had consumed no other food that day prior to eating the potato salad. She could not remember what she had eaten on the previous day.
The plaintiff's husband corroborated the fact of her illness and stated that in May of that year she had been in the hospital for seven days with pneumonia.
The plaintiff's aunt testified that her daughter was made ill on the same day as the plaintiff by eating the defendant's potato salad; that potato salad spoils very quickly and is dangerous to serve after it is kept for any length of time and especially if it is not kept under constant refrigeration; that she went to see the defendant, and he told her that the potato salad served in his place of business on Saturday had been prepared the night before at about 11 p. m.
The plaintiff's physician testified that he definitely diagnosed her ailment as food poisoning, but made no laboratory tests to determine what particular food had produced the poisoning; that potato salad is one of the most receptive agents for bacteria which produce food poisoning; that such bacteria can come from the containers in which the food is mixed and stored, from the hands of the person handling the food, from the air, or from the plates and implements used in eating the food. The physician also testified that, during the summer of 1951, there were illnesses of epidemic proportions in Elberton caused by a virus, and the symptomology of those illnesses and that of food poisoning are very similar; that the State Health Department was called in to ascertain the cause of the virus epidemic but was unable to do so, but he was certain that the plaintiff's illness was not caused by the virus but by food poisoning. He testified further that in his experience, where large groups of people partook of the same food at the same time and the food was poisoned by the presence of bacteria, sixty to sixty-five percent would be afflicted with food poisoning.
The evidence for the defendant was to the effect that an experienced person was in charge of the preparation of the potato salad, and the very best ingredients on the market were purchased for making the potato salad. All the ingredients for marking, the salad were inspected. The containers in which it was prepared and stored were all washed, scalded, and disinfected. All of the potato salad which was consumed on June 23 was made at about 8 a. m. of that day, placed in glass jars with the caps screwed in place and covered with cracked ice. The icebox was never allowed to run out of ice during that day. At least 12 other persons partook of the potato salad on June 23 and no one except the plaintiff and her cousin became ill.
This evidence establishes without contradiction that the defendant was not negligent in the preparation of the potato salad, and that the salad was not unfit for human consumption, unless it can be said that the fact of the salad being unfit for human consumption can be established by the circumstantial evidence that the plaintiff ate it and became ill; and even under the circumstantial-evidence theory, the evidence does not meet the test as it does not exclude every other reasonable hypothesis as to the cause of the plaintiff's illness save that the potato salad was unfit for human consumption. It is just as reasonable that she was suffering from the virus disease prevalent in the community — and this is so, under the facts of this case, despite her physician's surmise to the contrary — or that her illness was caused from some unknown source, as that the potato salad had caused it and therefore such salad was unfit for human consumption. Federal Reserve Bank of Atlanta v. Haynie, 46 Ga. App. 522 (1) ( 168 S.E. 112); Great Atlantic Pac. Tea Co. v. Dupee, 71 Ga. App. 148, 150 (2) ( 30 S.E.2d 365). Nor can the defendant's negligence in any respect be established, or the fact of the unfitness of the potato salad for human consumption be established under the doctrine of res ipsa loquitur by the evidence in this case. Miller v. Gerber Products Co., 207 Ga. 385 ( 62 S.E.2d 174).
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.