Opinion
No. 28657.
May 19, 1930.
1. ACTION. Food. Sales. Manufacturer of drinks, permitting deleterious or harmful agencies therein, may be liable for negligence, though also liable on implied warranty of purity; declaration against manufacturer of drinks, permitting deleterious or harmful agencies therein, may be on tort or on contract.
A party may be liable for negligence in the manufacture of drinks for human consumption by which deleterious or harmful agencies are permitted to be mixed in the drink, although he is also liable on implied warranty of the purity of the drinks. In such case a person may declare in tort or on contract.
2. FOOD. Venue. Manufacturer's agent may be joined as defendant in suit based on negligence in permitting deleterious substances in drinks; agent of manufacturer was properly joined in suit for permitting deleterious substances in drinks and venue properly laid in county where agent is doing business ( Hemingway's Code 1927, section 500).
In a suit for damages based upon negligence in permitting deleterious substances to become mixed in drinks manufactured for human consumption, the superintendent or other agent of the corporation whose negligence caused the injury may be joined as a defendant with his principal, and venue may be laid in the county where the agent is found doing business for the manufacturer.
3. APPEAL AND ERROR. Witnesses. Though witness may be examined as to conviction of crime, details of crime should not be inquired into; fact that witness examined as to conviction of crime gives details is not reversible error.
A witness may be examined as to his conviction of crime, and the crime of which he was convicted may be ascertained, but the details of the crime should not be inquired into, but if, when asked as to what crime he was convicted, the witness gives the details not called for by the question, it is not reversible error.
4. APPEAL AND ERROR. Damages. One thousand two hundred sixty dollars for damages caused by being made sick from drinking Coca-Cola containing deleterious substances held not excessive; verdict involving sickness and physical suffering will not be set aside unless brought about by bias, prejudice or corruption.
A verdict for one thousand two hundred fifty dollars for damages caused by being made sick from drinking Coca-Cola which contained deleterious substances, where such sickness lasted two days, accompanied by vomiting and symptoms similar to ptomaine poison and injuries to the stomach, necessitating abstinence from heavier foods for several weeks, will not be deemed excessive within the meaning of the law so as to require diminution or a new trial. Unless the court can say that a verdict was brought about by bias, prejudice, or corruption, it will not set it aside, where sickness and physical suffering are involved.
APPEAL from circuit court of Bolivar county, Second district. HON. WM. A. ALCORN, JR., Judge.
Wynn Hafter, of Greenville, for appellants.
In the beverage cases, our courts have fixed liability on the bottler, on the theory of an implied warranty; viz., ex contractu.
Coca-Cola Company v. Chapman, 64 So. 791; Watson v. Brewing Company, 112 Ga. 121; Chenault v. Coca-Cola Company, 118 So. 177.
The court has adhered strictly to the doctrine of an implied warranty as a basis of liability, and, on numerous occasions, has declined to consider the theory of liability based on negligence.
Rainwater v. Coca-Cola Co., 95 So. 444.
Over the objection of appellant, he was questioned as to the details of the conviction, and this was erroneous.
Powers v. State, 126 So. 12. Shands, Elmore Causey, of Cleveland, for appellee.
Civil actions, of which the circuit court has original jurisdiction, shall be commenced in the county in which the defendant or any of them may be found.
Hemingway's 1927 Code, Sec. 500; Indianola Cotton Oil Mill Co. v. Crowley, 121 Miss. 262.
There was a proper joinder.
I.C.R. Co. v. Clark, 85 Miss. 691.
In the case at bar judgment was recovered against both the owner and the general manager and agent.
The agent because of his personal negligence in failing to see that every bottle was inspected as he, in his testimony, states was his duty, and to further see that no bottles were placed upon the market containing any deleterious substance; the owner, J.Q. Strange, was held liable because of his failure to discharge his nondelegable duty to the public regarding the preparation of beverages intended to be consumed by human beings.
Negligence of manufacturers may be shown, and declaration may be on tort or contract.
Grapico Bottling Company v. Ennis, 140 Miss. 502; Coca-Cola Bottling Works v. Lyons, 145 Miss. 876.
The verdict was not excessive.
Coca-Cola Company v. Lyons, 145 Miss. 876.
J.G. Grisham was plaintiff in the court below, and filed a suit against J.Q. Strange and R.L. Bufkin for damages resulting from sickness and injury to the plaintiff caused by drinking a bottle of Coca-Cola manufactured by Strange and one Pidgeon, a partnership operating a Coca-Cola bottling plant in Cleveland, Mississippi, of which R.L. Bufkin was manager but not an owner.
It appears that about July 1, 1929, the plaintiff went to Brown drug store at Merigold, Mississippi, and purchased the bottle of Coca-Cola, of which he had consumed about one-third, when he was called from the drug store to his place of business. As he reached his place of business, he became violently sick, and vomited for a considerable period. A doctor was summoned who treated him and testified as to his illness and injury, and that the said plaintiff was under his treatment for several days, and that his stomach was affected from drinking the concoction, and he had to be placed on a diet. According to the doctor's recollection, the patient was under his treatment for some two or three weeks at intervals. From other testimony it appears that he was confined to his bed for two days and remained in Merigold only about a week after the injury and moved to Arcola, Mississippi. It was testified for the plaintiff that he was still affected by the injury, and was still on a diet, and could not eat heavier foods, but that prior to his injury he was healthy and could eat almost any food.
There was a verdict for one thousand two hundred fifty dollars for the plaintiff, from which judgment this appeal is prosecuted.
It appeared that Pidgeon was a resident of Memphis, Tennessee, and was not served, and that Strange was a resident of Washington county, and Bufkin was a resident of Bolivar county where the bottling works were operated. Strange made a motion for a change of venue to Washington county, and also filed a plea of misjoinder as to Bufkin, contending that Bufkin was made a defendant for the fraudulent purpose of obtaining jurisdiction.
The declaration was drawn on the theory of tort and not on the theory of implied warranty, and it is the contention of the appellant that it is the settled law of Mississippi that the seller of drinks of the character of Coca-Cola is a warrantor of their fitness for consumption, and that the action is one of contract and not one in tort. It is true that the court has held that the manufacturer of drinks for human consumption impliedly warrants their fitness and purity for the use for which they were manufactured, and that, regardless of negligence, he is liable for injuries resulting from the impurities or deleterious effects of such drinks. However, the party may be also liable for negligence in manufacturing drinks by which deleterious or harmful agencies are permitted to be mixed with the drink. In case of gross negligence, the manufacturer may be held liable for punitive damages, but in an action of implied warranty he would not be liable for punitive damages. As Bufkin was the general superintendent of the bottling works at Cleveland, charged with the duty of seeing that all of the operations were properly conducted in the bottling of the drinks, we think his negligence in performing his duties would render him personally liable jointly and severally with the owner for whom he was managing.
It was testified by numerous witnesses, and practically without dispute, that, if the plant had been properly operated, and the manager properly watchful, it would be impossible for foreign and deleterious substances to get into the bottles. It was clearly negligence, therefore, to permit the business to be operated so as to have such deleterious substances in the bottles. We think, therefore, that Bufkin was a proper defendant, and that jurisdiction was rightfully obtained in Bolivar county, where Bufkin lived, under section 500 of Hemingway's 1927 Code, section 707, Code of 1906, and that it was not error to overrule the motion of Strange for a change of venue to Washington county.
We are also of the opinion that it was not error for the court to rule that Bufkin was a proper party; as stated above, he was liable on the theory of his negligence, and could be sued jointly and severally with Strange. Therefore there was no misjoinder of plaintiffs.
It is next alleged that the court erred in admitting testimony over the objection of the defendant in going into details of the conviction of R.L. Bufkin on a former offense. An examination of the evidence upon this shows that the counsel sought to have the conviction of Bufkin in the mayor's court in the town of Cleveland established as affecting his credibility. He was asked the question:
"Now, Mr. Bufkin, have you been convicted in the Mayor's Court, here in the town of Cleveland?" His answer was: "I tell you, Judge, I don't know just how that worked. We paid a dollar and costs, on a particular appeal that came from Rosedale, on the record. We served some boats on the river, that goes up White River.
"Q. Well, you were convicted? A. Yes, sir.
"Q. In the Mayor's Court? A. Yes, sir.
"Q. What were you convicted for? A. For some little bit of speck being in a bottle.
"Q. You were convicted — the charge against you was for running an unsanitary bottling plant? A. That was the charge, but we was not convicted for that.
"Q. They charged you with that, when you were convicted? A. We were tried before the Mayor; the Mayor — we got him to go up there, Mr. Dedwyler wouldn't go, the Mayor went up there, and came back, and says, You can't charge this man with running an unsanitary place, because it is absolutely sanitary.
"Q. Well, now, that is not responsive to the question — you were convicted here? A. On some charge, I don't know what that was.
"Q. Dr. Dedwyler, the health officer, made an affidavit against you? A. Yes, sir.
"Q. You did pay a fine? A. Yes, sir.
"Q. Now, then, that conviction of you, at that time, was on the 27th day of June, 1929, was it not? A. I don't remember the day, Judge. I just don't remember — sometime along that time, however, in June.
"Q. Sometime in that June? A. Yes, sir.
"Q. That conviction of you was during the last week in June, was it not? A. Of course, I don't know — possibly it was. I don't know — I won't say it was, or it was not."
It will be seen from these questions and answers that it was difficult to get the witness to understand and testify as to what offense he was convicted of. The details of the prior conviction are not permissible in evidence, but the conviction is competent to go to the credibility of the witness, and the examiner has a right to ask the witness, not only if he has been convicted of crime, but what crime he has been convicted of. Such details of the crime as are here given were given by the witness in answer to questions that would not call for the details of the crime, but would call for him to say for what he had been convicted. We do not think this constituted reversible error.
It is next contended that the verdict is excessive. It will be noted from the statement of the case that the defendant was made very sick for several hours, that he vomited excessively, and had trouble with his stomach for some time after taking the concoction; the doctor attending stating that the effects were similar to ptomaine poison. It appeared that the plaintiff, at the time of the trial, had not been fully restored to his usual health, and that he could not eat heavy foods, but was on a diet. Taking all the facts together as contained in the record, we are unable to say that the jury was so prejudiced or influenced by passion or bias as to destroy their verdict. While the recovery is rather large for the injury disclosed, still it is a case where reasonable minds might differ as to the amount, and reasonable minds might award damages to the extent that the jury did. In such case the verdict of the jury must stand, unless the court can say that the jury was influenced by passion or prejudice, which we cannot say in this case.
The judgment of the court will therefore be affirmed.
Affirmed.