Watson v. Augusta Brewing Co. , 124 Ga. 121 ( 1905 )

CANDLER, J.

(After making the foregoing statement.) 1. When a manufacturer makes, bottles, and sells to the retail trade, to be again sold to the general public, a beverage represented to be refreshing and harmless, he is under a legal duty' to see to it that in the process of bottling no foreign substance shall be mixed with the beverage which, if taken into the human stomach, will be injurious. The case of Woodward v. Miller, 119 Ga. 618, is hardly in point; for in that ease the manufacturer knew of the defect and fraudulently concealed it from the purchaser. Blood Balm Co. v. Cooper, 83 Ga. 457, while differing somewhat as to its facts, furnishes strong reasoning to support the principle announced. The composition of patent or proprietary medicines is usually shrouded in mystery, and it is generally -understood that many such remedies contain ingredients which, if taken in sufficient quantities, will produce injurious results upon the person taking them. If, then, one who buys a patent medicine may rely upon the obligation of the manufacturer not to place therein ingredients which, if taken in the prescribed doses, will' injure his health, certainty the purchaser of an alleged harmless and refreshing beverage should have the right to rest secure in the assumption that he will not be fed on broken glass, jjtfc does not matter that the plaintiff in the present case did not buy the soda-water from the defendant, or that there was no privity of relationship between them. The duty not negligently to injureIsHüé by the mañufactuFSTTm a ease of the particular character of the one under consideration, not merely to the dealer to whom he sells his product, but to the general public for whom his wares are intended. \ On this subject see also Blood Balm Co. v. Cooper, supra.

2. It follows from what has been ruled that the court below erred in sustaining the general demurrer. We are equally clear that many of the grounds of the special demurrer are without merit. While the petition contains the wholly unnecessary allegation that the dealer who purchased the soda-water from the defendant relied upon its implied warranty that the drink was harmless, the suit can not by any possibility be construed as one upon a warranty, as it is plainly an action in tort. While there is no distinct allegation of permanent disability, the physical suffering of the plaintiff growing out of the swallowing of the glass and its removal from his stomach was set out with sufficient definiteness to furnish a basis of recovery; and there was no lack of the required definiteness as to the time, place, and manner of the defendant’s negligence. In the latter particular the case differs from Hudgins v. Coca Cola Bottling Co., 122 Ga. 695, in that there the petition was entirely silent as to what constituted the negligence complained of, while here it is distinctly alleged that the defendant was negligent in leaving glass in the bottle when it was filled. A somewhat peculiar ground of demurrer is the one which, seeks to place upon the plaintiff the onus of showing “the size and kind of glass” that he swallowed. Courts haye gone far in requiring particularity of pleading; but we are not aware of any rule which would require a man who has unconsciously, swallowed several pieces of glass to make a note of the shape, size, color, and character of the pieces after they have been removed from his stomach, in order to describe them in bringing suit to recover from the one who is responsible for his having-swallowed them. It was not necessary to allege that the defendant intended that the bottles containing its soda-water should be used as drinking vessels; it is sufficient for the purposes of this suit that such was the custom and it was cognizant thereof. •• -

The only remaining point to be considered is whether or.not-the .plaintiff in 'this case can recover for mental suffering growing,, out of his injury; and if-so, to what extent. It is a familiar prj-nciple that where a physical injury has been sustained the person injured may recover.for mental suffering caused by or growing out of his bodily hurt. One may not recover, however, for mental suffering which is not reasonable, or which is merely fanciful. It can hardly be disputed that a reasonable fear of death constitutes mental suffering of a very keen sort. It is not unreasonable, we think, for one who has swallowed several pieces of glass to entertain a very vivid and poignant apprehension of an untimely end; and the' mental anguish caused by this dread may constitute an element of damage in a suit for damages on account of the physical injury. But after the glass has been removed from his stomach and he is apparently restored to his former condition of health and vigor, his fears, so far as a damage suit are concerned, should cease. He may not continue for an indefinite period to vex his soul with dread on account of having been “cut on the inside/5 and hold the defendant liable for his apprehensions. It follows, therefore, that so much of the petition as seeks to recover on account of mental suffering endured since the glass was removed from the plaintiff’s stomach should be stricken; and direction is given that when the case is tried again the special demurrer be sustained in so far as it attacks this portion of the petition.

tJudgment reversed with direction.

All the Justices concur.