Daugherty v. Summerall

The plaintiff having sued two defendants as joint tort-feasors, one of whom was a resident of the county and the other a non-resident, and it appearing that no cause of action was set out against the resident defendant, the court did not err in sustaining the general demurrer of the resident defendant, and the demurrer of the non-resident defendant based on the ground that the court had no jurisdiction as to this defendant, as no cause of action was set out against the resident defendant.

DECIDED MARCH 14, 1941. REHEARING DENIED MARCH 26, 1941. Hughie Daugherty brought suit jointly against L. H. Summerall of Pierce County and the Waycross Coca-Cola Bottling Company, a Georgia corporation with its principal office in Ware County, seeking to recover damages arising from personal injuries claimed by the plaintiff to have been caused by negligence of the defendants. It was alleged, that on August 9, 1939, Summerall owned and operated a cafe in the City of Blackshear, where soft drinks and beverages were sold to the general public; that the plaintiff was employed by and did work as a clerk and salesman for Summerall in such cafe in July and August, 1939; that the cafe kept and sold various beverages, including coca-cola which was purchased exclusively from the defendant bottling company for resale, deliveries being made through its employees by truck at least once a week; that Summerall was an experienced operator of businesses which sold such drinks, having been engaged therein for more than seven years, and he had knowledge of the danger of highly and dangerously charged carbonated beverages, especially coca-cola, and with defective bottles in which such beverages were bottled and sold; that Summerall knew of the dangers and hazards in handling such beverages, and knew that bottles when so overcharged, "and defective bottles," were liable to explode, causing injury to a person handling them; that the plaintiff was inexperienced in handling such beverages, and did not know of the danger of exploding bottles, and had no means of making this discovery; that he was employed by Summerall only about one or two weeks "before the accident as described hereinafter occurred;" that Summerall did not caution or warn the plaintiff of the danger of such bottles exploding, and no notice was given to him by the defendants of the danger and hazard in handling overcharged beverages and defective bottles; that the defendant company was and is a bottler and distributor of a certain carbonated beverage known as coca-cola, and under a pressure system charges carbonated water made of carbonic acid gas into a glass bottle in which has been placed approximately one ounce of coca-cola syrup, and such defendant puts together the constituent elements of such beverage; that the glass bottles into which the beverage is placed are of a capacity of approximately six and one-half ounces, weighing about fourteen ounces each; that when charged and filled such bottles are capped by an automatic capping machine to make them airtight; that thereafter twenty-four bottles of such beverage are placed in a case and distributed to retail dealers; that the company sells and distributes the bottles and contents with an invitation to the public to use the contents as a harmless and refreshing beverage; that the bottles containing such coca-cola were placed in a regular coca-cola ice-box for the purpose of cooling such beverage before the retail sale, and were not subjected to any unusual atmospheric conditions; that the plaintiff, in his capacity as a clerk and salesman, opened the ice-box in the cafe and reached for a coca-cola to sell to a customer of Summerall, and just before the plaintiff touched the bottle, and suddenly and without warning, one of the bottles containing the product of the company exploded, and a large and sharp piece of glass therefrom flew upward and struck the plaintiff on his forearm, injuring him as described in the petition; that he was lawfully on such premises and in pursuit of his occupation in carrying out the instructions and orders of his employer, Summerall; that the bottle was not handled by any person other than the defendants and their agents and employees; that the plaintiff in opening the ice-box was in the exercise of ordinary care, and his injuries were occasioned solely by the negligence of the defendants; that the carbonated water with which the bottles are charged by the company exerts an explosive pressure upon the bottles in which it is confined; that the company was negligent in that it too highly and dangerously charged with carbonated water, or carbonic acid gas, the bottle which exploded and injured the plaintiff; that if such defendant had used due care it would not have so charged the bottle, and in that event the bottle would not have exploded; that the company was negligent in using the bottle which was defective in that it did not have sufficient strength to properly contain the carbonated water with which such defendant had charged it, and was unable to withstand the pressure which resulted in its explosion; that the company was negligent in failing to inspect such bottle and discover that it was defective, old, and unfit for further use as a coca-cola bottle, and in not making a proper inspection and test of the bottle "to determine that it was dangerously and excessively charged with carbonated water and in a dangerous condition to offer on the market;" that the defendants advertised and sold such beverages, and especially coca-cola, in bottles as harmless and refreshing drinks; that the company was negligent in bottling and placing on the market for sale such defective bottle, excessively and dangerously charged with explosive gas; that the defendants, in addition to the acts of negligence above alleged, were negligent in the following particulars: (a) that Summerall, knowing of the danger of exploding coca-cola bottles, did not give warning to or notify the plaintiff of the danger, although the plaintiff was instructed, ordered, and employed by Summerall to work with, handle, and sell such coca-cola in bottles; (b) that the company, having knowledge of such dangers and hazards of exploding bottles, did not give warning or notify the plaintiff of such hazard or danger, although it knew the plaintiff was handling, selling, and working with its products, namely coca-cola; (c) that the defendants advertised and held out that bottled coca-cola was harmless and a refreshing beverage, "when they had knowledge of the explosive and dangerous nature of coca-cola and beverages;" (d) that the company was negligent in that it too highly and dangerously charged such bottle with carbonated water or carbonic acid gas; (e) that the company in bottling and preparing such beverage charged the bottle with an excessive amount of carbonic acid gas or carbonated water; (f) that the company was negligent in using a defective bottle in which was bottled such coca-cola under pressure of carbonated water or carbonic acid gas; and (g) that the company was negligent in failing to inspect the bottle and discover such defect in the bottle which exploded. The petition set forth the nature and extent of the plaintiff's injuries and damages resulting therefrom.

Summerall demurred to the petition, on the ground that the allegations were insufficient to set out a cause of action against him, "there being no allegations sufficient to charge this defendant with being responsible in any way for any injury sustained by the plaintiff as alleged therein, so as to make this defendant liable to the plaintiff in any way." The bottling company demurred on the ground that no cause of action was set out against it; and because the petition showed on its face that the city court of Blackshear had no jurisdiction of it, for the reason that the allegations were insufficient to constitute a cause of action against Summerall, the only resident defendant, and since no valid judgment could be rendered against him, the court had no jurisdiction to render a judgment against the company, a resident of Ware County. The judge sustained the demurrers, and the plaintiff excepted. Where two defendants, one a resident of the county in which the suit is filed, and the other a non-resident of the county, are sued jointly as tort-feasors, the court has jurisdiction of both, including jurisdiction of the non-resident defendant, if both are in fact joint tort-feasors. If, however, there is no liability against the resident defendant, he is necessarily not a joint tort-feasor with the non-resident defendant; and the court, as respects the person of the non-resident defendant, has no jurisdiction. Peake v. Stovall,50 Ga. App. 595, 597 (179 S.E. 287), and cit.;Davis v. Waycross Coca-Cola Bottling Co., 60 Ga. App. 390 (3 S.E.2d 863). The question for determination is, did the petition set out a cause of action as to Summerall, the resident defendant? The plaintiff seeks to hold Summerall jointly liable with the bottling company, on the ground that Summerall was the plaintiff's employer, and that the plaintiff had been employed for a short time only, and was not aware of the fact that there was any danger incident to handling a bottle of coca-cola, in that it was charged with carbonic gas, which is explosive; that when a bottle was filled with coca-cola syrup and charged with carbonic gas it was likely to explode; that Summerall knew this and should have advised and warned the plaintiff thereof: and therefore that Summerall was liable to the plaintiff for injuries sustained while he was handling a bottle of coca-cola in making a sale thereof. It is contended that Summerall failed to furnish to the plaintiff a safe place to work, and permitted him to work with a latently dangerous appliance, without warning him of the dangers incident thereto, all of which Summerall knew or in the exercise of proper care should have known. It was charged that Summerall was under a duty to warn the plaintiff of the dangers incident to handling bottles of coca-cola, and to instruct him as to the proper method of handling them.

The Code defines the duty of a master to his servant as follows: "The master is bound to exercise ordinary care . . in furnishing machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery, or dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, he shall give the servant warning in respect thereto." § 66-301. However, "A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. In suits for injuries arising from the negligence of the master in failing to comply with the duties imposed" by § 66-301, "in order that the servant may recover it must appear that the master knew or ought to have known . . of the defects or danger in the machinery supplied; and it must also appear that the servant injured did not know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof." § 66-303. It does not appear from the petition that Summerall had any knowledge as to the particular bottle of coca-cola, whether it was overcharged with gas or defective in any way. He, along with the plaintiff, possessed the general knowledge of most men that coca-cola is a beverage charged with some kind of gas. It does not appear from the petition that any instructions or warning which Summerall might have given to the plaintiff could have prevented the bottle from exploding when he picked it up from the ice box to serve to a customer. The plaintiff assumed the ordinary risks of his employment; and as a clerk in an establishment that sold soft drinks, including bottled coca-cola, he assumed the risk of any danger which might be incident to handling bottled soft drinks in their sale. It does not appear that he did not have equal means with Summerall relatively to ascertaining any alleged defect in the particular bottle of coca-cola which might be likely to cause it to explode. It does not appear that Summerall knew that the company had overcharged this particular bottle with carbonic gas, so that it was likely to explode; and it does not appear that he knew that this bottle of coca-cola was any different from the ordinary and usual bottles. It does not appear that Summerall had any knowledge that this bottle was not sufficient to stand the amount of carbonic gas with which it was charged by the bottling company. Summerall was under no duty to ascertain these facts. The alleged defects were latent. Nothing appears to have put him on notice that the bottle might have been defective as alleged. Negligence on the part of a retail dealer in soft drinks, including bottled coca-cola, will not be inferred from the mere fact that a bottle of coca-cola exploded while the clerk was endeavoring to extract such bottle from the cooler containing bottled soft drinks, where it appears that such bottled drink was purchased from an established manufacturer thereof. See Noonan v. Great Atlantic Pacific Tea Co., 104 N. J. L. 136 (139 A. 9, 56 A.L.R. 590, 593, notes). In that case the bottled soft drink exploded as it was being delivered to a customer by the clerk of the retail dealer. The court said that the bottle of drink involved was not the product of the retail dealer, and that it did not appear that the dealer did anything in connection therewith that he should not have done, or that he omitted to do anything that he should have done.

This case is not based on the duty of the vendor of an article dangerous in its nature, or likely to become dangerous in the course of ordinary usage to be contemplated by the vendor, either to exercise due care to warn users of the danger, or to take reasonable care to prevent the article sold from proving dangerous when subjected only to customary usage. It does not appear from the petition that a bottle of coca-cola is necessarily and ordinarily dangerous. Any alleged negligence of the company in so bottling the coca-cola is not chargeable to the plaintiff's employer. The petition did not allege a cause of action as to the resident defendant; and the judge did not err in sustaining the general demurrers and dismissing the action as to both defendants.

Judgment affirmed. Sutton and Felton, JJ., concur.