Opinion
No. 33475.
January 2, 1939.
1. EVIDENCE.
In buyer's tort action against manufacturer and retailer for damages resulting from drinking part of contents of a bottled beverage, state chemist's certificate that report by chemist making analysis of contents of bottle had been made to state chemist was properly excluded as "hearsay."
2. FOOD.
A buyer's tort action against manufacturer and retailer for damages resulting from drinking part of contents of a bottled beverage was predicated on alleged negligence and not on an implied warranty of the wholesomeness of the beverage, and directed verdict for the retailer was proper, where there was no evidence of negligence other than the fact that bottle had been removed from the icebox and uncapped by the retailer and handed to buyer.
3. FOOD.
In buyer's tort action against manufacturer and retailer for damages resulting from drinking part of contents of a bottled beverage, negligence of manufacturer was for jury.
4. FOOD.
The fact that a buyer suing manufacturer of bottled beverage in tort for damages resulting from drinking part of the contents of bottle served by retailer was required to prove negligence did not mean that witnesses must be produced to testify that the beverage plant was negligently operated at the time foreign substance was bottled.
5. FOOD.
Where a buyer was rendered sick upon drinking part of contents of a bottled beverage served him by a retailer, and it was shown that there was part of a mouse or bird in the bottom of the bottle, the doctrine of res ipsa loquitur applied, as regards liability of the manufacturer.
6. FOOD.
In buyer's tort action against manufacturer for damages resulting from drinking part of contents of a bottled beverage, even if the foreign substance got into the bottle by unavoidable accident, it was for the jury to say whether a reasonable and proper inspection of the plant would have disclosed such foreign substance.
APPEAL from the circuit court of Calhoun county; HON. T.H. McELROY, Judge.
Patterson Patterson, of Calhoun City, and Creekmore, Creekmore Capers, of Jackson, for appellant.
The doctrine of res ipsa loquitur applies in this case.
We think this question of res ipsa loquitur is foreclosed in Mississippi by the case of Pillars v. R.J. Reynolds Tobacco Co. et al., 117 Miss. 490, 78 So. 365, wherein it was held that the manufacturer of tobacco was liable where a human toe was found in chewing tobacco and poisoned an ultimate customer.
As a practical matter it would be impossible for a plaintiff injured by drinking coca cola with foreign matter in it to prove that the bottling company was negligent in its manufacture. This is because the coca cola is bottled before the injury occurs and the facts about the negligence are exclusively within the knowledge of the company. If the company, on the other hand, can prove to the satisfaction of a jury that it had used great care in the manufacture of the bottle drink, then a defense would be made, but the law is that great care must be used and it is no undue burden to place upon the defendant to require him to prove the manner and method of the manufacture of the bottle drink and that great care was used in such manufacture. The general weight of authority in this country is that the doctrine of res ipsa loquitur applies in such a case.
4 A.L.R. 1559; Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791.
In the case of Try-Me Beverage Company v. Harris, an Alabama case, 116 So. 147, it was held that the presence of foreign matter deleterious to health in a bottle of soft drink is evidence of negligence.
We respectfully submit that the rule in Mississippi is, as announced by Pillars v. Tobacco Co., 117 Miss. 490, 78 So. 365, that the manufacturer of food (or drink) is liable to one eating (or drinking) the manufactured product when there is a foreign and deleterious substance therein; and the proof by the plaintiff that there was a harmful and foreign matter in the product raises a presumption of negligence on the part of the manufacturer, and makes out a prima facie case of liability.
Thomas J. Tubb, of West Point, for appellees.
The doctrine of res ipsa loquitur does not apply in this case.
Practically all the cases on impurities in beverages that have been to this court have been based upon the breach of an implied warranty.
Rainwater v. Hattiesburg Coca Cola Bottling Co., 94 So. 444, 131 Miss. 315; Coca Cola Bottling Works of Greenwood v. Simpson, 130 So. 479, 158 Miss. 390; Coca Cola Bottling Works v. Lyons, 111 So. 305; Chenault v. Houston Coca Cola Bottling Co., 118 So. 177, 151 Miss. 371; Grapico Bottling Co. v. Ennis, 106 So. 97, 140 Miss. 502.
In only one case do we find suit based on negligence, Bufkin v. Grisham, 128 So. 563.
Appellant cites the case of Pillars v. R.J. Reynolds Tobacco Co., 117 Miss. 490, 78 So. 365, as authority for applying the doctrine. The opinion does not state upon what theory or basis the suit was founded. However, this case has been cited in support of the implied warranty doctrine by this court in the cases, Kroger Grocery Co. v. Lewelling, 145 So. 726; Rainwater v. Hattiesburg Coca Cola Bottling, 95 So. 444. We do not think the court held the doctrine applicable in the Pillars case. But, if we be wrong, it should be overruled in the light of the development of the law since that case in this state on impurities in beverages.
The doctrine should not be held applicable in this jurisdiction in beverage cases because we are committed to the doctrine of the right to recover either on a breach of an implied warranty or in tort. In the ex contractu suit the plaintiff has only to prove the foreign substance in the bottle. Certainly the plaintiff should be required to prove negligence, if he bases his suit thereon.
McCain v. Wade, 180 So. 748.
We call the court's attention further to the proof. The coca cola in question was purchased from defendant Lipham. Lipham is the only witness who testified about the coca cola prior to the purchase thereof by the appellant. His sole testimony on that point is that he purchased the coca cola which he sold appellant from Houston Coca Cola Bottling Company. There is no proof as to how long Lipham had had possession of the bottle, nor where he kept it, what use, if any, had been made of it, whether or not other people had access to it, nor that it was in the same condition when he sold it to appellant as when he purchased it. Under these facts and the following general rule, the doctrine of res ipsa loquitur cannot apply: "It must appear, in conformity with the statements of the rule (res ipsa loquitur) that the negligent cause or thing which produced the injury complained of was wholly and exclusively in the possession, and under the control and management of defendant or his servants." 45 C.J., pages 1214-13, sec. 781.
This appeal is from the action of the circuit court of Calhoun County in granting a peremptory instruction in favor of appellees, Houston Coca Cola Bottling Company, as the manufacturer, and J.D. Lipham, as the retailer, of a bottle of Coca Cola sold to appellant, and the contents of which caused him to become violently sick after drinking a portion thereof, according to the undisputed testimony.
When the bottle was removed from the ice box and uncapped by the retailer, and some of the Coca Cola had been drunk by appellant, it was discovered that there was a yellowish substance, together with a part of a mouse or bird, in the bottom of the bottle. This fact was testified to by appellant and his son, and was admitted by the retailer Lipham. From the filling station where the drink had been purchased the appellant went almost immediately to a local physician, in a car driven by his son, which he remained for a few hours under treatment; and it was also shown that he continued thereafter to suffer the ill effects of the experience he had undergone.
The Coca Cola bottle with its remaining contents was sent by the local physician to the State Chemical Laboratory, at Starkville, for analysis. The chemist who made the analysis reported his findings to the State Chemist, Dr. W.F. Hand, and corroborated the testimony of the appellant and the other witnesses as to what the bottle contained. Dr. Hand certified that such report had been made to him by the analytical chemist, and this certificate was offered in evidence, but upon objection in the court below was excluded, and properly so, as being hearsay evidence.
The peremptory instruction in favor of the retailer was correct, since the suit as to both the manufacturer and retailer was predicated on alleged negligence, and not on an implied warranty as to the wholesomeness of the beverage, and there were no facts shown that would constitute negligence on the part of the retailer, or from which negligence could be inferred. Appellee Coca Cola Bottling Company contends that this was likewise true in regard to its alleged liability. We do not think so. It is true that the plaintiff, suing alone in tort, was required to prove negligence, but this does not mean that a witness or witnesses must be produced to say that the Coca Cola plant was being negligently operated at the time the foreign or deleterious substance was bottled up in the drink before it was capped and sold to the retailer. It was a question for the jury as to whether negligence might reasonably be inferred from the facts disclosed. The doctrine of res ipsa loquitur applies in such a case. Pillars v. R.J. Reynolds Tobacco Company et al., 117 Miss. 490, 78 So. 365; Try-Me Beverage Company v. Harris, 217 Ala. 302, 116 So. 147; Rost v. Kee Chapell Dairy Company, 216 Ill. App.? 497; Whistle Bottling Company v. Searson, 207 Ala. 387, 92 So. 657; Boyd v. Coca Cola Bottling Works, 132 Tenn. 23, 177 S.W. 80; Bradfield v. Atlanta Coca-Cola Bottling Company, 24 Ga. App. 657, 101 S.E. 776; Watson v. Augusta Brewing Company, 124 Ga. 121, 52 S.E. 152, 1 L.R.A. (N.S.), 1178, 110 Am. St. Rep. 157; Coca-Cola Bottling Company v. Barksdale, 17 Ala. App. 606, 88 So. 36; Crigger v. Coca-Cola Bottling Company, 132 Tenn. 545, 179 S.W. 155, L.R.A. 1916B, 877, Ann. Cas. 1917B, 572; Bellingrath v. Anderson, 203 Ala. 62, 82 So. 22; Rudolph v. Coca-Cola Bottling Company, 132 A. 508, 4 N.J. Misc 318. Even if the foreign substance got into the bottle by unavoidable accident it was for the jury to say whether a reasonable and proper inspection at the plant would have disclosed its presence. Crigger v. Coca-Cola Bottling Company, supra, and Jackson Coca Cola Bottling Company v. Chapman, 106 Miss. 864, 64 So. 791.
Under the rule announced in the foregoing decisions the granting of the peremptory instruction in favor of the bottling company was error.
Reversed and remanded.