In Simpson v. Brock, 114 Ga. 294 (40 S.E. 266), it was said that, "When a plaintiff, by his counsel, voluntarily dismisses his petition, whether for a good or a bad reason, the court has no authority, over objection by the defendant, to reinstate the action."Summary of this case from Bowman v. Bowman
DECIDED MAY 12, 1961. REHEARING DENIED JUNE 5, 1961.
Action for damages. Fulton Superior Court. Before Judge Tanksley.
Charles W. Anderson, Oze R. Horton, Melvin Pazol, for plaintiff in error.
William Linkous, Jr., Powell, Goldstein, Frazer Murphy, contra.
A retailer who sells to a customer an original and capped bottle containing a beverage called for by name by the customer, is not liable in negligence because the contents of such capped bottle are contaminated, mixed with and contain some foreign deleterious substance it not appearing that the alleged defect is of such nature and content as a reasonably prudent retailer should discover before delivering it to the customer.
DECIDED MAY 12, 1961 — REHEARING DENIED JUNE 5, 1961.
J. S. Brock brought this suit against Paul Simpson, d/b/a Simpson's Food Town Stores, and the Pepsi Cola Bottling Co. of Atlanta, for recovery of damages by reason of alleged injuries received from drinking the contents of a bottle of Pepsi Cola. The defendants were sued as joint tortfeasors in the Superior Court of Fulton County. The petition alleges substantially: that the defendant Simpson buys from defendant Pepsi Cola Co. a soft drink beverage known as Pepsi Cola; that the said bottled and capped Pepsi Cola drink was manufactured, sold and vended to the petitioner and general public and is widely advertised and reputed to be a harmless beverage for human consumption; that on April 25, 1960, defendant Pepsi Cola sold and delivered to defendant Simpson a large quantity of Pepsi Cola soft drinks in crates and bottles; on said date the petitioner purchased from defendant Simpson a carton of 6 bottles of the said Pepsi Cola soft drinks, being a part and parcel of those bought from said defendant Pepsi Cola; that petitioner took said carton of 6 bottles of Pepsi Cola soft drinks to his home and drank part of the contents of one of the said 6 bottles; that shortly after drinking part of the said contents of said bottle, he became ill, was awakened and suffered great pain, anguish, nausea, distress and loss of sleep and then discovered by taste and vomiting that said fluid had a sour taste somewhat similar to kerosene oil or other foreign, deleterious and harmful substance; that defendants were negligent and could and should have known that said Pepsi Cola drink and fluid was contaminated, mixed with and contained some foreign deleterious substance; that defendants failed and neglected to sell and vend, one to the other and to petitioner, said Pepsi Cola soft drink free from any deleterious, foreign and harmful substance; and that by reason of said negligence the petitioner had suffered injury and damage.
The defendant Paul Simpson, d/b/a Simpson's Food Town Stores filed a general demurrer to the petition "upon ground that it fails to set out a cause of action against this defendant." The court sustained the demurrer and the exception is to this judgment.
1. "The situation of the retailer and consumer of packed products is properly governed by the rules of negligence law. The retailer owes to the consumer the duty to supply goods packed by reliable manufacturers, and such as are without imperfections that may be discovered by an exercise of the care, skill, and experience of dealers in such products generally. This is the measure of the retailer's duty; and if he has discharged it, he should not be mulcted in damages because injuries may be produced by unwholesomeness of the goods. As to hidden imperfections, the consumer must be deemed to have relied on the care of the packer or manufacturer or the warranty which is held to be implied by the latter." Howard v. Jacobs' Pharmacy Co., 55 Ga. App. 163, 164 ( 189 S.E. 373); Fleetwood v. Swift, 27 Ga. App. 502 ( 108 S.E. 909). "If the goods sold are in the original package sealed and unbroken, and it is a perfect appearing package, and it is impossible, in the practical use of the package in the retail trade, to discover the hidden unwholesomeness or imperfection without breaking the package, and the dealer has no positive knowledge, or notice amounting to imputed knowledge, of the hidden imperfection, ordinary care does not require the dealer to open the same, and as a matter of law he would not be negligent under these circumstances." Davis v. Williams, 58 Ga. App. 274, 279 ( 198 S.E. 357).
Here the petitioner in selecting the Pepsi Cola drink acted on his own judgment as to the reliability of the manufacturer. Howard v. Jacobs' Pharmacy Co., 55 Ga. App. 163, supra; Ray v. Burbank, 61 Ga. 505 (34 Am. Rep. 103). There was no duty on the retailer Simpson to open and inspect the capped bottle containing the beverage which the petitioner called for. It cannot be inferred from the allegations in the petition that the claimed deleterious, foreign and harmful substance in the Pepsi Cola drink was of such nature and content as to amount to a defect which a reasonably prudent dealer should have discovered before delivering it to the customer. A defect which is identifiable only by taste is entirely different from one such as particles of glass which are visible through the transparent glass bottle and through the transparent contents. Davis v. Williams, 58 Ga. App. 274, supra. From all the facts pleaded we think the conclusion is clear that here the alleged defect was not reasonably observable. The court below properly sustained the demurrer filed by Paul Simpson, d/b/a Simpson's Food Town Stores.
Judgment affirmed. Felton, C.J., and Bell, J., concur.