2020 Georgia Code
Title 51 - Torts
Chapter 1 - General Provisions
§ 51-1-23. Sale of Unwholesome Provisions

Any person who knowingly or negligently sells unwholesome provisions of any kind to another person, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or to his family, shall be liable in damages for such injury.

(Orig. Code 1863, § 2945; Code 1868, § 2952; Code 1873, § 3003; Code 1882, § 3003; Civil Code 1895, § 3864; Civil Code 1910, § 4460; Code 1933, § 105-1101.)

- Warranties relating to sales of goods, § 11-2-312 et seq.

Adulterated food, § 26-2-26.

- For comment on Davis v. Williams, 58 Ga. App. 274, 198 S.E. 357 (1938), see 1 Ga. B. J. 41 (1939).

ANALYSIS

• General Consideration
• Applicability to Specific Cases

This section is applicable to principals and not agents. Crosby v. Calaway, 65 Ga. App. 266, 16 S.E.2d 155 (1941).

Liability of vendor is not that of insurer. Rowe v. Louisville & N.R.R., 29 Ga. App. 151, 113 S.E. 823 (1922).

- Summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a restaurant was properly granted by a trial court in an action by a restaurant patron, alleging that the patron suffered emotional distress when the patron discovered two blood spots on the french fry container, as the patron feared contracting HIV or hepatitis, because the patron failed to provide evidence of more than the patron's "fear" that the patron had been exposed to the diseases; accordingly, the patron's claims for negligence, negligence per se, and breach of the implied warranty of merchantability, under O.C.G.A. §§ 11-2-314 and51-1-23, failed due to the patron's failure to meet the damages requirement. Wilson v. J & L Melton, Inc., 270 Ga. App. 1, 606 S.E.2d 47 (2004).

- With respect to the sale of specified articles intended for human consumption or use, either knowledge of the defect or negligence by the seller is an essential element. Lovett v. Emory Univ., Inc., 116 Ga. App. 277, 156 S.E.2d 923 (1967).

- It is not necessary that it appear that the defendant had actual knowledge that food sold was unwholesome or spoiled and contaminated, but it is sufficient if it appears that the defendant ought to have known of the bad condition of the food. Dupee v. Great Atl. & Pac. Tea Co., 69 Ga. App. 144, 24 S.E.2d 858 (1943).

- In a suit for damages against a seller of unwholesome food the plaintiff may establish negligence as a matter of fact, or the plaintiff may show negligence as a matter of law by establishing a breach of a statutory duty imposed by the provisions of the pure food and drug laws, or the plaintiff may rely on both classes of negligence. Norris v. Pig'n Whistle Sandwich Shop, Inc., 79 Ga. App. 369, 53 S.E.2d 718 (1949).

Persons who engage in business of furnishing food for human consumption are bound to exercise due care and diligence respecting the food's fitness and those persons may be held liable in damages, if, by reason of any negligence on their part, contaminated and spoiled or unwholesome food is sold and persons are made ill and suffer damages as the result of eating such food. Dupee v. Great Atl. & Pac. Tea Co., 69 Ga. App. 144, 24 S.E.2d 858 (1943).

- Degree of care required of the defendant baking company, in preparing a pie which allegedly made the plaintiffs ill, was ordinary care. Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 136 (1948).

- Liability described by this section is simply the common law liability for injury to another through negligence, as a matter of fact, and a violation of this section, which refers to private rights and based on common law principles, is not negligence per se. Burns v. Colonial Stores, Inc., 90 Ga. App. 492, 83 S.E.2d 259 (1954).

- Evidence authorized the jury to find that the defendant, in selling fish to the plaintiff, violated the former version of the pure-food statute and therefore was guilty of negligence as a matter of law. Southern Grocery Stores, Inc. v. Donehoo, 59 Ga. App. 212, 200 S.E. 335 (1938).

- Petition charging the defendant with negligence in selling impure food resulting in injury need not set out specific acts of negligence on the part of the defendant, in order to withstand the test of a motion to dismiss; but such general allegations as that the defendant was negligent in selling such food when the defendant knew or by the exercise of ordinary care could have known that this would result in injury are to be deemed sufficient in law. Howard v. Phillips, 44 Ga. App. 233, 161 S.E. 163 (1931).

Description of the substance contained in the pie, by the use of language "that defendant was negligent in permitting said putrid, tainted, impure, deleterious, unwholesome, and poisonous substance to become an ingredient of said product" and similar language, was sufficient to put the defendant on notice of the nature and what caused the illness of and damage to the plaintiffs. Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 136 (1948).

- It is not necessary to aver that the defendant knew of the injurious quality of the food. It is sufficient if it appears that the defendant ought to have known of it and was negligent in furnishing unwholesome food, by reason whereof the plaintiff was injured. McPherson v. Capuano & Co., 31 Ga. App. 82, 121 S.E. 580 (1923).

- When, in a suit against the seller of allegedly poison bootleg whisky, the petition was silent as to whether or not the defect was unknown to the purchaser and whether the purchaser was without negligence on the purchaser's own part in exercising the degree of diligence required by law, this was a fatal defect in the petition. Rivers v. Weems, 208 Ga. 783, 69 S.E.2d 756 (1952).

- In a consumer food product liability case, the trial court misapplied the doctrine of res ipsa loquitur because having found that the doctrine applied, the trial court was obligated to allow the jury to determine whether the defendant's negligence, if any, was the proximate cause of the plaintiff's injuries under a jury charge that included the principle of res ipsa loquitur instead of granting summary judgment to the defendant. Matthews v. Yoplait USA, Inc., 352 Ga. App. 591, 835 S.E.2d 393 (2019).

- When the plaintiff established the unwholesome quality of the food, with injury from the food's consumption, these facts in themselves would sufficiently speak of the defendant's negligence to make a prima facie case; and until the defendant is exonerated, the jury would be authorized to apply the maxim res ipsa loquitur, and to find such issue in favor of the plaintiff. Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 136 (1948).

- Proof by one claiming to have been injured by eating food furnished to one at a public restaurant or delicatessen, merely that one ate the food and in consequence became sick, would not establish the averment that the food was unwholesome. McPherson v. Capuano & Co., 31 Ga. App. 82, 121 S.E. 580 (1923).

To establish a claim under O.C.G.A. § 51-1-23 there must be evidence that the food was unwholesome. A mere showing that a person became sick subsequent to eating food is insufficient. Stevenson v. Winn-Dixie Atlanta, Inc., 211 Ga. App. 572, 440 S.E.2d 465 (1993).

- Charge of the court that when the plaintiffs might establish the unwholesome quality of food and establish injury from the food's consumption, and establish that the food as consumed by them was in the same condition as when it left the custody, possession, and control of the defendant, these facts in themselves would sufficiently set forth the defendant's negligence and make out a prima facie case, and the burden would be upon the defendant to show that the defendant used due care in the premises was not error against the defendant. Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 136 (1948).

Cited in Smith v. Williams, 117 Ga. 782, 45 S.E. 394, 97 Am. St. R. 220 (1903); Fleetwood v. Swift & Co., 27 Ga. App. 502, 108 S.E. 909 (1921); Maddox Coffee Co. v. Collins, 46 Ga. App. 220, 167 S.E. 306 (1932); Davis v. Williams, 58 Ga. App. 274, 198 S.E. 357 (1938); Donaldson v. Great Atl. & Pac. Tea Co., 186 Ga. 870, 199 S.E. 213 (1938); H.J. Heinz Co. v. Fortson, 62 Ga. App. 130, 8 S.E.2d 443 (1940); Armour & Co. v. Roberts, 63 Ga. App. 846, 12 S.E.2d 376 (1940); Yeo v. Pig & Whistle Sandwich Shops, Inc., 83 Ga. App. 91, 62 S.E.2d 668 (1950); Bailey v. F.W. Woolworth, Inc., 106 Ga. App. 264, 126 S.E.2d 686 (1962); Chambley v. Apple Restaurants, Inc., 233 Ga. App. 498, 504 S.E.2d 551 (1998).

Applicability to Specific Cases

Bagel distributor.

- Even though bagels were not packaged or wrapped when sold at retail, a distributor was not liable for injuries caused by a staple baked into a bagel, since the distributor could not be expected to open for inspection individual bagels baked by another. Thomasson v. Rich Prods. Corp., 232 Ga. App. 424, 502 S.E.2d 289 (1998).

- Manufacturer who makes and bottles for public consumption a beverage represented to be harmless and refreshing is under a legal duty not to negligently allow a foreign substance which is injurious to the human stomach, such as bits of broken glass, to be present in a bottle of the beverage when it is placed on sale; and one who, relying on this obligation and without negligence on one's own part, swallows several pieces of glass while drinking the beverage from a bottle, may recover from the manufacturer for injuries sustained in consequence. Atlanta Coca-Cola Bottling Co. v. Shipp, 41 Ga. App. 705, 154 S.E. 385 (1930).

It cannot be said as a matter of law that the plaintiff, in drinking from the bottle of Coca-Cola which had previously been unopened, without first making an examination of its contents, was, as a matter of law, guilty of such a failure to exercise ordinary care for the plaintiff's own safety as would bar a recovery, or that the jury was not authorized, despite the evidence on behalf of the defendant as to the manner and method and degree of care exercised by it in conducting its business of bottling beverages, to apply the doctrine of res ipsa loquitur and find against the defendant upon the issue as to its negligence. Cordell v. Macon Coca-Cola Bottling Co., 56 Ga. App. 117, 192 S.E. 228 (1937).

Whether the defendant bottlers and vendors exercised due care and diligence in performing the defendants' admitted duty not to sell a bottle of Coca-Cola with flies in it, and whether the plaintiff, by the exercise of ordinary care, could have avoided the alleged injury to the plaintiff resulting from the alleged negligence of the defendants, were questions of fact for a jury. Cordell v. Macon Coca-Cola Bottling Co., 56 Ga. App. 117, 192 S.E. 228 (1937).

Case brought against the bottling company by an individual who purchased and drank a portion of a soft drink containing a dead roach was one which under the evidence should have been submitted to a jury on the question of negligence, and it was error to grant a nonsuit. Whited v. Atlantic Coca-Cola Bottling Co., 88 Ga. App. 241, 76 S.E.2d 408 (1953).

- Retail dealer who dispenses ice cream to the dealer's customers by removing the ice cream in small quantities from the container in which the ice cream was furnished to the dealer by the manufacturer, and the servant of the dealer who actually serves and dispenses the ice cream by removing the ice cream from the container to be delivered to the customer, owe a duty to the customer to exercise ordinary care to see that the ice cream so furnished is free from harmful and deleterious foreign matter, notwithstanding the ice cream, when furnished by the dealer to the customer, contained therein glass as a result of the negligence of the manufacturer. Crowley v. Lane Drug Stores, Inc., 54 Ga. App. 859, 189 S.E. 380 (1937).

In a suit by the customer against the manufacturer of ice cream, the dealer, and the servant of the dealer, to recover damages for injuries alleged to have been received by the plaintiff when consuming ice cream with glass in the ice cream which had been served to the plaintiff as a customer of the dealer, since the evidence indicated that the glass was in the ice cream when delivered from the manufacturer to the dealer, a verdict for the plaintiff against the defendants would have been authorized. Crowley v. Lane Drug Stores, Inc., 54 Ga. App. 859, 189 S.E. 380 (1936).

- Because Georgia law prohibited recovery for wrongful death under a theory of breach of warranty pursuant to O.C.G.A. § 51-1-23, a warranty claim brought by parents based on the death of their daughter in an auto accident failed on summary judgment. Davenport v. Ford Motor Co., F. Supp. 2d (N.D. Ga. Dec. 11, 2007).

RESEARCH REFERENCES

Am. Jur. 2d.

- 63 Am. Jur. 2d, Products Liability § 1 et seq.

Foreign Substance in Food or Beverage, 30 POF2d 1.

Food Poisoning, 31 POF2d 31.

Cigarette Manufacturer's Liability for Mesothelioma Caused by Asbestos Fibers in Cigarette Filters, 39 POF3d 181.

- 72A C.J.S. Supp., Products Liability, § 1 et seq.

- Presumption of negligence from foreign substance in food, 4 A.L.R. 1559; 47 A.L.R. 148; 105 A.L.R. 1039; 171 A.L.R. 1209.

Seller's duty to ascertain at his peril that articles of food conform to food regulations, 28 A.L.R. 1385.

Illness after partaking of food or drink as evidence of negligence on part of one who prepared or sold it, 49 A.L.R. 592.

Statutory provisions relating to purity of food products as applicable to foreign substances which get into product as result of accident or negligence, and not by purpose or design, 98 A.L.R. 1496.

Knowledge or actual negligence on part of seller which is not an element of criminal offense under penal statute relating sale of unfit food or other commodity, as condition of civil action in tort in which violation of the statute is relied upon as negligence per se or evidence of negligence, 128 A.L.R. 464.

Infected or tainted condition of milk or other food, or contamination in water, and its causation of the sickness of the consumer, as inferable from such sickness, 130 A.L.R. 616.

Liability of manufacturer or packer of defective article for injury to person or property of ultimate consumer who purchased from middleman, 140 A.L.R. 191; 142 A.L.R. 1490.

Implied warranty of reasonable fitness of food for human consumption as breached by substance natural to the original product and not removed in processing, 143 A.L.R. 1421.

Implied warranty of fitness by one serving food, 7 A.L.R.2d 1027, 87 A.L.R.4th 804, 90 A.L.R.4th 12.

Recovery for loss of business resulting from resale of unwholesome food or beverages furnished by another, 17 A.L.R.2d 1379.

Liability of manufacturer or seller for injury caused by food or food product sold, 77 A.L.R.2d 7.

Liability of manufacturer or seller for injury caused by beverage sold, 77 A.L.R.2d 215.

Master and servant: employer's liability for injury caused by food or drink purchased by employee in plant facilities, 50 A.L.R.3d 505.

Products liability: necessity and sufficiency of identification of defendant as manufacturer or seller of product alleged to have caused injury, 51 A.L.R.3d 1344.

Liability of water supplier for damages resulting from furnishing impure water, 54 A.L.R.3d 936.

Liability of packer, foodstore, or restaurant for causing trichinosis, 96 A.L.R.3d 451.

Liability for injury or death allegedly caused by spoilage or contamination of beverage, 87 A.L.R.4th 804.

Liability for injury or death allegedly caused by foreign substance in beverage, 90 A.L.R.4th 12.

Liability for injury or death allegedly caused by foreign object in food or food product, 1 A.L.R.5th 1.

Liability for injury or death allegedly caused by spoilage, contamination, or other deleterious condition of food or food product, 2 A.L.R.5th 1.

Liability for injury or death allegedly caused by food product containing object related to, but not intended to be present in, product, 2 A.L.R.5th 189.