Opinion
36503.
DECIDED FEBRUARY 26, 1957.
Tort; contaminated beverage. Before Judge Lilly. Thomas Superior Court. September 19, 1956.
Alexander, Vann Lilly, for plaintiffs in error.
Forester Calhoun, contra.
1. Since the defendant Schulte, an agent, was not liable for the negligence of an under-servant hired for the benefit of his principals, and since the evidence did not show that the defendant Schulte was negligent in selecting and retaining an incompetent employee, the evidence did not authorize a verdict against Schulte.
2. Under the doctrine of res ipsa loquitur, the evidence authorized a verdict against the defendants Trulock.
DECIDED FEBRUARY 26, 1957.
R. E. Pyle sued H. H. Schulte, G. B. and D. P. Trulock alleging that he had been damaged and injured by the joint and concurrent negligence of the defendants.
The petition alleged that the defendants Trulock were the owners of a soft drink bottling business located in Thomas County, Georgia, and that the defendant Schulte is in charge of the actual operation of the bottling business and was the agent of the defendants Trulock and at all times engaged in the discharge of his duties as agent and acting within the scope of his authority.
The petition further alleged that the plaintiff purchased a soft drink from one J. B. Finch and that the drink had been bottled by the defendants and sold to Finch for resale to his retail customers; that the plaintiff drank a portion of the soft drink and became violently ill and then discovered that said drink was contaminated and contained impure, unwholesome and deleterious matter.
The petition stated that the plaintiff, in the exercise of ordinary care, could not have discovered said impure and unwholesome matter before consuming a portion of the same, since the drink was dark in color.
The plaintiff further alleged in his petition that after consuming a portion of the contaminated drink he became violently ill with acute food poisoning; that he vomited and retched for a period of many hours; that his blood pressure became sharply elevated; that he sustained permanent injury; and that his injuries were caused by the negligence of the defendants.
The defendants filed their answer, subject to the special demurrers of the defendant Schulte, and denied all of the material allegations as to injuries alleged and negligence alleged in the plaintiff's petition. Schulte's demurrers were overruled. The jury found for the plaintiff. The defendants made a motion for new trial, which was later amended and thereafter denied. The defendants except to the overruling of the special demurrers of Schulte and to the denial of the motion for new trial.
1. The evidence was undisputed that the defendants Trulock owned the bottling business and that the defendant Schulte was their agent in charge of its operation. Schulte's duties were that of executive and administrative head of the bottling company and he did the hiring and firing in connection therewith. The negligence of an under-servant in respect to the inspection of bottles and the soft drink was not attributable to the defendant Schulte. Code § 4-409. The only negligence of which the defendant Schulte could have been guilty under the circumstances would have been an original act of negligence in selecting or retaining an incompetent employee. See Henderson v. Nolting First Mortgage Corp., 184 Ga. 724 ( 193 S.E. 347, 114 A.L.R. 1022). The evidence disclosed that the empty drink bottles were visually inspected under strong light after their cleaning and before filling and were again visually inspected after filling. The defendant Schulte testified that he did not send his employees "off to school" for any training but that he trained his employees on the premises. There was nothing in the evidence which required a finding that the employees had to be especially trained at a school. The evidence did not authorize a finding that Schulte was negligent in the selection or the retention of an incompetent employee or employees. This ruling on the general grounds of Schulte's amended motion for new trial also covers the exceptions made in the special grounds of that motion.
It is not necessary to rule on the special demurrers filed by the defendant Schulte. Even if the allegations attacked by such special demurrers alleged a duty on the part of Schulte toward the plaintiff and a violation thereof by Schulte, the evidence failed to authorize a finding that Schulte was so negligent.
2. The evidence authorized a verdict against the defendants Trulock. Atlanta Coca-Cola Bottling Co. v. Holbrook, 40 Ga. App. 269 ( 149 S.E. 316); Claxton Coca-Cola Bottling Co. v. Coleman, 68 Ga. App. 302 ( 22 S.E.2d 768). This is so even though the defendant's evidence might have shown that it employed modern methods and machinery in sterilizing the bottles and in bottling the drink. Watkins v. Dalton Coca-Cola Bottling Co., 66 Ga. App. 848 ( 19 S.E.2d 316).
The court erred in denying the amended motion for new trial as to the defendant Schulte. The court did not err in denying the amended motion as to the defendants Trulock.
Judgment affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.