Opinion
12961
August 14, 1930.
Before BONHAM, J., Aiken, April, 1929. Affirmed.
Action by C.A. Burnette against Augusta Coca-Cola Bottling Co. Judgment for defendant and plaintiff appeals.
Charge of the Circuit Judge requested to be reported was as follows:
The plaintiff, C.A. Burnette, in this action seeks to recover damages of the defendant, Augusta Coca-Cola Bottling Company, for injuries which he alleges he sustained in the manner set forth in this complaint.
He alleges that the defendant is a corporation, and its place of business is in Augusta, and it is engaged in manufacturing a non-alcoholic drink, food, or beverage, known as coca-cola, which it sells wholesale to the Seminole Mills in Aiken County, and to others detailed and dispenses to the public, and that it was sold in sealed bottles to the public; and plaintiff alleges that on July 24, 1928, he bought of the Seminole Mills a bottle of coca-cola, the product of the defendant corporation, for which he paid six cents. That he started to drink and discovered some foreign substance in it — some deleterious product in it, the exact nature of which he did not know, the effect of which was to make him sick, and that he was sick and caused to vomit for a time, and that he was caused to take to his bed for a time, and suffered great physical and mental damages in the sum of $2,995.00.
Now, the defendant in its answer denies generally the allegation of the complaint, except that it admits of the plaintiff, and the corporate capacity of the defendant, and it alleges that it has its principal place of business in the City of Augusta, and that it has been engaged for several years in the manufacture of coca-cola, which it sells to various dealers in the County of Aiken, and State of South Carolina and other places, to be retailed and sold to the general public for human consumption, and that said coca-cola is placed in sealed bottles when manufactured by the company, and when offered for sale by it to the said dealers; and it denies the other allegations of the complaint; and it specifically denies that it sold to the Seminole Mills store in July, 1928, a bottle of coca-cola which contained putrid, poisonous, or unwholesome, vegetable or animal matter which was unfit and unsuitable for human consumption, and it goes on to allege that it uses all reasonable care and caution as to have its bottles properly inspected so as to make it impossible for any deleterious matter to be inclosed therein.
Now, that makes the issues you are to try, and it is my duty to say to you, as it is my duty to say to every jury in this Court, that you are the sole judges of the facts of the case. I am not allowed to say anything about the facts. When I have passed upon the admissibility of evidence and admitted it in the case, it then becomes a question for your determination, and I may not even intimate what force it has or anything else. That is your duty and yours alone. My duty is to charge you the law, and you must accept it as I give it to you and abide by it.
Now, the issues sharply drawn by the pleadings herein are these, and I may right here say to you that the plaintiff — any plaintiff — before he can recover in this Court, must prove the material allegations of his complaint by the preponderance or the greater weight of the evidence, which does not mean of necessity the greatest number of witnesses in support of a proposition, because the jury may believe one witness as against forty. An old-time illustration given in the old books which lawyers studied, is this: You are supposed to be holding in your hand a perfectly even-balanced scale. In the pan of one side is put the evidence in support of a proposition, and in the pan on the other side that opposed to it. If the evidence evenly balances, then the plaintiff has failed to prove the material allegations of his complaint, or, if the evidence contrary to the allegations of his complaint outweigh the evidence here in support of it, then the plaintiff has failed and is not entitled to recover; but if the evidence in support of the allegations of the complaint outweigh and bear down the other, then he has proven it. But, after all, gentlemen of the jury, the simple, plain meaning of the phrase "preponderance or greater weight of the evidence" is this: it is that part of the evidence which carries to your mind the conviction of truth.
The material allegations of the complaint are these — the material issues are these — Did the Augusta Coca-Cola Company bottle and put forth this bottle of coca-cola which is complained of? If it did, were they guilty of negligence in bottling it? Was the deleterious matter which it is alleged was in the bottle there through any negligence on the part of the bottling company? Now, these are the things which the plaintiff must prove by the preponderance or greater weight of the evidence. He must prove that the Augusta Coca-Cola Company bottled and put on the market to be served to the public that particular bottle. He must prove beyond that, if he has proved that — he must prove in addition to it that the company was negligent in bottling it, and that this deleterious substance, whatever it may be, was in that bottle through negligence. We have a statute in this state which makes it a misdemeanor for any person dealing in drinks sold to the public to allow through gross negligence any of these things known as deleterious or unsound or putrid. We have a statute that makes such a thing a misdemeanor, but the general law is that one who manufactures or sells an article for public consumption, whether it be food or drink, must use due care to see that such article is fit, safe, and proper for human consumption.
Due care is that care which a person of ordinary prudence would exercise in his own business under like circumstances. If one does not exercise that due care which a person of ordinary prudence would exercise in the circumstances, then he is guilty of negligence, but it is not every act of negligence that makes one liable. The negligence complained of must be the proximate cause of the injury complained of. That is, it must be the direct cause, the efficient cause, the thing that brought about the thing complained of. It need not necessarily be the thing immediately preceding the event. It may, indeed, originate at a point removed from the immediate event, but if it set in motion a chain of events that led down to the thing itself, and then that chain came all of the way down and was the event, then that would be the proximate cause; but even though it set in motion a train of events originating back here, if before that train of events reached the final event something broke in on it, and that new thing became the cause of the event, then this original thing ceases to be considered, because it was broken off before it got to the final event, and therefore it could not be called the proximate cause; but the new intervening thing which set in motion this train of events would be the proximate cause. The proximate cause is the efficient cause, the direct cause, the thing that brought about the thing complained of. Now, if the plaintiff has proven negligence on the part of this corporation, he must prove that that negligence was the proximate cause of his injury.
Now, gentlemen of the jury, I think those are the questions of law which pertain to this case, and I have found it always expedient to say as little as I could to the jury upon the law, because you are not lawyers, and do not understand the technical terms in which lawyers often indulge, and I don't want to confuse you. I want to state the propositions of law which I think apply plainly, and so you can bear them in mind and apply them in the jury room.
Now, the plaintiff and defendant by their counsel have asked me to charge you certain requests. It frequently confuses jurors to have the Judge charge the law requested by the plaintiff, and then turn around and charge the law requested by the defendant. It seems inconsistent, but it is not. The attorneys for the plaintiff predicate their requests to charge upon their belief of the facts of the case. That is to say, if the facts are as plaintiff believes, then the plaintiff desires these requests, which are applicable; and if you find the facts to be as defendant believes, then the law he requests me to charge would apply. I do not often charge the law they like. I am the judge of that, and I sometimes change some of their requests as I am going to do now.
The plaintiff asks me to charge you:
1. Under the statute law of this State, it is unlawful for any person to manufacture or sell, or offer for sale, any food or drug which is adulterated or misbranded, and the statute provides that food is adulterated when it consists in whole or in part of a filthy, decomposed or putrid animal or vegetable substance, and the term "food," as used in the statute, includes all articles used for food, drink, confectionery, or condiment, by man or other animals, whether simple, mixed, or compound.
The Court: I charge you that. That is the law of South Carolina.
Now, I am going to charge you the gist of this next request, but I am not going to charge it in the language which plaintiff has it.
2. A violation of this law on the part of one who manufactures and sells food, drink, or drugs in negligence per se, that is, of itself; and where one shows a violation of this law, and that he has suffered damages on account thereof (this to be proven by the greater weight or preponderance of the testimony), such person so suffering damages is entitled to recover therefor.
The Court: Now, I do not charge you that in that language. I do charge you that the first request I read to you is a part of the criminal law of South Carolina, and a violation of that law is an offense against the laws of South Carolina, and, if it be proven that the food or drink or drug is adulterated, is in itself negligence, but I cannot tell you the proof of that negligence per se entitles plaintiff to recover. He must prove more than that — he must prove that such negligence was the proximate cause of the injury complained of and prove it by the preponderance of the evidence. Now, as amended in that way, I charge you that.
Now, I am going to read you the third request in their language, but I am going to change it by mine.
3. The jury is further charged as a matter of law that a manufacturer of beverages, sold in sealed packages or bottles, is liable in damages to the ultimate consumer for injury resulting from a foreign substance in a beverage which he has manufactured.
The Court: Provided, it be shown that he has been guilty of negligence in the making of the thing. If he has been negligent, that is to say, he has not exercised that care and caution in the manufacture which a man of ordinary care in the like circumstances would exercise, and that negligence was the proximate cause of his injury, then he would be liable, and with that amendment I charge it.
4. The jury is further charged as a matter of law that one who buys and consumes a food or beverage, manufactured or sold in a sealed package or bottle, is not guilty of contributory negligence in failing to examine the same for the presence of a foreign substance before consuming the same.
The Court: That has been so held in our State in one of the cases and I so charge you.
Now, the defendant asks that I charge you, as follows:
1. That a manufacturer who is engaged in the business of manufacturing and bottling beverages for sale and consumption by the public is only bound to use ordinary and reasonable care to prevent foreign, impure, or other dangerous and deleterious matter from getting into such beverage and from being contained in the bottles or other receptacles in which such beverages are placed. Such a manufacturer is not insurer or guarantor of the absolute freedom of such beverages from such foreign, impure, or deleterious matters or of the safety of the receptacle in which such beverages are placed, but fully discharges his duty to the public when he exercises such reasonable care to make them pure and free from such deleterious matters and dangers as a person of ordinary care and prudence would exercise when engaged in the same line of business as such manufacturer is engaged in. So in this case I charge you that you would not be warranted in finding a verdict against the defendant from the mere fact that a bug or other insect was found in the bottle in question, but the plaintiff must go further and prove for your satisfaction by the greater weight of the evidence, not only that the bug or insect was in the bottle, but also that its presence in the bottle was due to the negligence and carelessness of the defendant, before you can find a verdict for the plaintiff in this case.
The Court: I have already charged you that in my general charge, and I charge it to you now at their request.
Messrs. Williams, Croft Busbee, for appellants, cite: Duty and liability of bottler and seller of drinks: 49 A.L. R., 595; 1 A.L.R., 1560; Ann. Cas., 1917-B, 575; 11 R.C. L., 1108, 1123; Ann. Cas., 1913-E, 1287; 92 So., 657; 63 A.L.R., 345; 17 A.L.R., 697. Not necessary to plead Pure Food Statute: 2 Strob. L., 64; 115 S.E., 205; 25 R.C.L., 946.
Messrs. James S. Bussey, Jr., and Hendersons Salley, for respondent, cite: Plaintiff has no right to recover upon a theory not supported by allegations of complaint: 156 S.C. 203; 119 S.C. 273; Ann. Cas., 1918-A, 981; 113 S.C. 495; 16 Cyc., 403, 404; 76 S.C. 561; 33 S.C. 198; 45 S.C. 278; 57 S.C. 435; 92 S.C. 490. Pure Food Statute not applicable in charge for negligence: 47 S.E., 184; 191 Fed., 431. Charge must be considered as a whole: 111 S.C. 111; 103 S.C. 342; 103 S.E., 479; 105 S.E., 350; 109 S.C. 343. Plaintiff cannot recover unless violation of statute was proximate cause of injury: 90 S.C. 281; 91 S.C. 541; 144 S.C. 446; 91 S.C. 216; 117 S.C. 515. Presumption of negligence: 4 Rich. L., 329; 151 S.C. 133. Plaintiff must prove negligence in cases of this sort: Ann. Cas., 1917-B, 572; 145 S.E., 14; 150 S.E., 198; 47 A.L. R., 146; 56 A.L.R., 590. Rule of res ipsa loquitur does not apply: 66 S.C. 256; 69 S.C. 529; 72 S.C. 398; 86 S.C. 441; 97 S.C. 114; 126 S.C. 239; 141 S.C. 355; 86 S.C. 352. Rule is applicable in Georgia: 101 S.E., 776; 136 S.E., 324. Manufacturer is not warrantor: 17 A.L.R., 667.
August 14, 1930. The opinion of the Court was delivered by
Tort action, tried in the Court of Common Pleas for Aiken County, before Hon. M.L. Bonham, presiding Judge, and a jury. Verdict and judgment in favor of the defendant, the respondent here; appeal by the plaintiff.
The appellant alleged that the respondent, engaged in the wholesale bottling business, sold a certain bottle of coca-cola to the Seminole Mills store, a retailer, which the appellant purchased for drinking purposes; that the beverage contained some putrid, poisonous, and unwholesome vegetable or animal matter (most probably a bug of some kind, according to the evidence); that appellant drank a portion of the beverage and was made ill thereby; that the injuries received by him were occasioned through "the negligence and carelessness of defendant (respondent) in manufacturing and bottling said unwholesome and poisonous coca-cola, and in sealing the same up and selling it for human consumption, without first properly inspecting the same. * * *"
The respondent denied bottling the particular bottle of coca-cola, alleged by the appellant to have contained the poisonous matter therein; and alleged that its beverages were manufactured, bottled, and inspected in a proper manner.
The four exceptions of the appellant relate entirely to the charge of the presiding Judge. The whole charge, with the exception of the instructions as to punitive damages, is sustained by our decision in the case of Tate v. Mauldin, 157 S.C. 392, 154 S.E., 431, the opinion in which is filed along with the opinion in this case. The charge, with the exception of the instructions relating to punitive damages, will be reported. There is no exception by the appellant as to the trial Judge's direction that the jury could not find punitive damages; so that question is not before us.
Upon the authority of the case mentioned, and the authorities cited therein, the judgment below is affirmed.
MESSRS. JUSTICES COTHRAN and STABLER and MR. ACTING ASSOCIATE JUSTICE SMITH concur.
MR. CHIEF JUSTICE WATTS did not participate.
I am unable to agree to the conclusion reached in the leading opinion of this case and, therefore, most respectfully dissent.
According to my view of the case, the case, in the main, is controlled by Section 398. Code of S.C. 1922, Vol. 2. This section, or so much thereof as is pertinent to the issues involved in the appeal, reads as follows:
" Unlawful to Manufacture or Sell Impure Food or Drugs — Definitions. — It shall be unlawful for any person to manufacture or sell, or offer for sale, any article of food or drug which is adulterated or misbranded, within the meaning of this Section, and any person who shall violate any of the provisions of this Section, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding fifty dollars, or by imprisonment not exceeding fifteen days for the first offense, and one hundred dollars, or thirty days imprisonment, for each subsequent offense. * * * The term 'food,' as used herein, shall include all articles used for food, drink, confectionery, or condiment by man or other animals, whether simple, mixed or compound. That for the purpose of this Section, an article shall be deemed to be adulterated. * * *
" In the case of food:
"Fifth. If it contain any added poisonous or other added deleterious ingredient, which may render such article injurious to health: * * *
"Sixth. If it consists in whole or in part of a filthy, decomposed or putrid or animal or vegetable substance. * * *
In commenting on this statute his Honor, the trial Judge, used this language: "We have a statute in this State which makes it a misdemeanor for any person dealing in drinks sold to the public to put or allow through gross negligence any of these things known as deleterious or unsound or putrid. We have a statute that makes such a thing a misdemeanor, but the general law is that one who manufactures or sells an article for public consumption, whether it be food or drink, must use due care to see that such article is fit, safe, and proper for human consumption."
By the use of this language, his Honor, in effect, charged the jury, as I view the charge, that the statute in question made it unlawful for a person dealing in drinks sold to the public to put or allow put into the same, "through gross negligence," deleterious, putrid, or unsound matter, but only when done "through gross negligence." I think the statute makes it unlawful for any person dealing in drinks to allow the same to go on the market for sale containing any deleterious, putrid, or unsound matter regardless of whether it was done "through gross negligence" or not, and I am of the opinion that by the use of the language referred to the jury got the wrong impression as to the force and effect of the statute and its application to the issues involved.
Furthermore, the violation of this statute constitutes negligence per se, and, when evidence was introduced tending to show that the defendant manufactured and put on the market for sale for human consumption the poisonous drink in question, which the plaintiff drank and was made sick as a proximate cause thereof, such testimony was sufficient to take the case to the jury on the question of the alleged negligence charged against the defendant in manufacturing and placing on the market the said poisonous drink, causing the alleged injury to the plaintiff, and it was not incumbent on the plaintiff to show how the plant of the defendant was operated or explain in what manner or under what circumstances the poisonous substance got into the drink in question, or to name any specific act of negligence on the part of the defendant for, as stated, the violation of the statute in question constituted negligence per se, and it was for the jury to say whether or not such act or acts caused the alleged injury to the plaintiff as a proximate cause thereof. To make such requirement of the plaintiff, which I think the charge to the jury imports, in my opinion, places a greater burden on the plaintiff than the law contemplates. The plaintiff is not presumed to have access to defendant's bottling plant and cannot be expected to know when or under what circumstances the poisonous substance got into the drink in question, which, according to the testimony, was handed to the plaintiff bottled and under seal. Perhaps, it was not so intended by the trial Judge, but as I view his Honor's charge, considered as a whole, the jury got the impression that it was incumbent on the plaintiff to furnish such information or explanation or name some act of negligence, in order to recover, and failing in this the plaintiff could not recover; that proof that the defendant manufactured and put on the market for sale for human consumption the drink in question, which the plaintiff testified he drank and which made him sick because of the poisonous substance it contained, was not sufficient, but that some act of negligence must be shown. As stated, it may be that his Honor did not intend to convey this impression, and I know that his Honor meant to be absolutely fair to both litigants, but, taking the charge as a whole, I think the jury got that impression.
I, therefore, think that the judgment should be reversed, and the case remanded for a new trial.