Crosby v. Calaway , 65 Ga. App. 266 ( 1941 )

This is a case of selling food (coca-cola) for immediate consumption, and should not be likened to a case of the sale of commodities such as hardware. Code, § 105-1101, declares: "Any person who knowingly or carelessly sells to another unwholesome provisions of any kind, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or his family, shall be liable in damages for such injury." I think this section was meant to include any person, not only dealers or manufacturers, but also the clerks of dealers who knowingly or carelessly (negligently) sell to another unwholesome food. The liability does not rest so much upon implied contract of the dealer as upon the violation or negligent performance of a duty voluntarily assumed. And no person, whether he be clerk or dealer, can injure a purchaser of food who does not know of the defect by selling him food which he positively knows is unwholesome, or which he bought to know is unwholesome by the exercise of ordinary care; and any person negligently selling unwholesome food resulting in injury to another or in his death caused by such unwholesome food is liable therefor. Davis v. Williams, 58 Ga. App. 274 (supra). "Goods bought of retail or wholesale dealers in the original packages and labelled as the product of the manufacturer are usually bought in reliance upon the manufacturer's competency and care. This is always the case where a purchaser asks for a particular brand. Therefore, the retailer [or his clerk] is not subject to liability for bodily harm caused by their defective condition, unless the condition is such that even the cursory inspection which a dealer [or his clerk] should make of any article, which he puts in stock and sells, would disclose some indication that the goods had deteriorated to a dangerous extent [or were so unwholesome as to become dangerous]." 2 Restatement of the Law, American Law Institute, Torts, 1088, § 401 (a). In the instant case the allegations in the petition are merely that a spider was in the bottle of coca-cola. It does not state or even intimate how large the spider was, and, construing the petition most strongly against the pleader, the spider may have been very small and not of such a size and character as to amount to a defect which a reasonably prudent dealer or his clerk should have discovered before delivering it to a purchaser. The case, I think, should not be based primarily on the duty of the dealer to inspect, but should be based primarily on the duty of the dealer or his clerk not to carelessly or negligently sell to another unwholesome provisions which injure him. I think therefore that the acts of negligence pleaded are not sufficient to show that the clerk was negligent in not observing a spider, however small, in the bottle which was a perfectly appearing package sealed by the manufacturer, unless the spider therein made it otherwise.Davis v. Williams, 58 Ga. App. 274, 278 (supra).

I concur in the result, but not in all that is said in the majority opinion.