Opinion
Opinion delivered December 30, 1949.
1. — Appeal and Error. Where order of trial court showed that motion of defendant for new trial was sustained solely because there was no sufficient evidence to justify submission on question of punitive damages, Court of Appeals would assume that trial court held that evidence of plaintiff was otherwise sufficient.
2. — Food. In action against bottler to recover damages allegedly resulting from presence of dead mouse in bottled beverage, presence of a dead mouse in bottle was properly submitted to jury.
3. — Appeal and Error. Where jury found that dead mouse was present in the bottled beverage and trial court approved finding on defendant's motion for a new trial, presence of mouse in bottle would not be considered on appeal.
4. — Food. That dead mouse was found in bottled beverage would not alone justify assessment of punitive damages against bottler.
5. — Damages. Punitive damages are not a matter of right, and should only be assessed by jury when there is evidence that defendant has acted maliciously or with wanton disregard of rights of others.
6. — Appeal and Error. Where trial court sustained defendant's motion for a new trial unless plaintiff made a remittitur and plaintiff refused, assignments of error made in defendant's motion for new trial would not be considered by Court of Appeals on defendant's appeal.
7. — New Trial. Where trial court sustained defendant's motion for a new trial unless plaintiff made a remittitur and plaintiff refused, defendant would be entitled to new trial on whole case.
8. — Appeal and Error. Where trial court sustained defendant's motion for a new trial unless plaintiff made a remittitur and plaintiff refused, appeal by defendant from order of trial court would be dismissed.
Appeal from the Circuit Court of Stoddard County. — Hon. James V. Billings, Judge.
JUDGMENT IN NO. 6859 AFFIRMED.
APPEAL IN NO. 6860 DISMISSED.
C.A. Powell for plaintiff.
The Court erred in sustaining the defendant's motion for new trial unless the plaintiff remitted as to the $900.00 punitive damages within ten days for the alleged reason that there was not sufficient evidence to justify the submission on the question of punitive damages, because in fact the evidence was sufficient to support the verdict and to render the defendant liable for punitive damages, because: The bottling of the Coca-Cola with the mouse therein was unlawful in that it was in violation of Sections 9980.8, 9980.12, 9980.17, Mo. R.S.A., Baxter v. Magill 127 Mo. App. 392, l.c. 397; McKenzie v. Randolph 257 S.W. 126, l.c. 127 (Mo.). It was an act of gross negligence, was wanton, was done with reckless indifference to the rights and welfare of whomever might drink the contents of bottle, and was such negligence as amounts to a positive misconduct. DeSalme v. Union Elec. Light Power Co. 102 S.W.2d 779 l.c. 783, 232 Mo. App. 245; Stephens v. Lever Bros. Co. 155 S.W. (2) l.c. 543 (Mo. A.); Jeck v. O'Meara 122 S.W.2d 897 l.c. 905, 343 Mo. 559; Reel v. Consolidated Inv. Co. 236 S.W. 43 l.c. 46 (Mo.); Summers v. Keller 133 S.W. 1180 l.c. 1182, 152 Mo. App. 626. The court did not err in admitting evidence of other instances of a mouse, cockroaches, bugs and cigarettes being found in other bottles of Coca-Cola bottled by defendant before the one involved in this suit, since they were all bottled under the same circumstances and by the same machinery and methods. Hutchison v. Moerschel Products Co. 133 S.W.2d 701 234 Mo. App. 518; Maybach v. Falstaff Brewing Corp. 222 S.W. (2) 87 (Mo.). The plaintiff offered to prove, but the court excluded, evidence of other instances of foreign substances having been found in other bottles of Coca-Cola bottled by the defendant after the bottling of the one involved in this suit. However, we believe such evidence was admissible. The use of the word "poisonous" in plaintiff's Instruction No. P 1 is not error. Holyfield v. Joplin Coca-Cola Bottling Co., 170 S.W.2d 451 (Mo. A.). The Court did not err in giving plaintiff's Instruction No. P 2, because: It is proper as a res ipsa loquitur instruction. Stolle v. Anheuser-Busch, Inc. 271 S.W. 497, 307 Mo. 520; Madouros v. Kansas City Coca-Cola Bottling Co. 90 S.W.2d 445 l.c. 450, 230 Mo. App. 275; Nehi Bottling Co. v. Thomas 33 S.W.2d 701, 236 Ky. 684. The Supreme Court in Maybach v. Falstaff Brewing Corporation 222 S.W.2d 87 ruled that to be a res ipsa loquitur case the instrumentality causing the injury should be in the control of the defendant at the time of the injury, rather than at the time the negligent act was committed. That case questions but we do not construe it to overrule the Stolle Case. At local citation page 90 the Supreme Court in the Maybach Case stated as follows: "An essential element of the res ipsa doctrine is that proof of the occurrence and attendant circumstances shall point, prima facie, to negligence on the part of the defendant. Such proof cannot without further proof, point to the negligence of the defendant who is entirely out of control of the instrumentality at the time it causes the injury." In the case at bar the plaintiff did have other proof which eliminated other persons and point to the negligence of the defendant, in that the evidence showed that the bottle was securely capped and remained in that condition until opened by the plaintiff. Furthermore, the evidence showed that the mouse had swollen to such a size that it had to have been in the bottle for some length of time. The mouse could not have gotten in the bottle after it was capped. Many things could have occurred in the Maybach Case to cause the bottle to explode after it left the defendant's hands but no such thing could have occurred to cause the mouse to be in the bottle. The instruction, in substance, properly tells the jury that the legal effect of the bottling of the Coca-Cola by the defendant with a mouse in it, if the jury so found, constituted negligence. It is always proper to instruct the jury that if certain facts exist it amounts to negligence. Zimmerman v. Hannibal St. Joseph Railroad Co., 71 Mo. 476 l.c. 490-1; Broderick v. Brennan et al. 170 S.W.2d 686 l.c. 688 (Mo. A.); Ravenscraft v. Missouri Pacific Ry. Co. 27 Mo. App. 617 C. Even if the instruction is erroneous, the error is harmless. Section 847.140 (b) Mo. R.S.A.; Longmoor Corp. v. Jeffers 205 S.W.2d 234 (Mo. A.); Brinkmann Realty Co. v. Deidesheimer et al. 201 S.W.2d 503 (Mo. A.). The evidence was sufficient to justify the giving of plaintiff's Instruction No. P 3 relative to punitive damages. The verdict is in proper form. Section 847.111 Mo. R.S.A. The Court did not err in permitting plaintiff to amend her petition at the close of her case by striking out the words "fail to properly sterilize said bottle before placing any Coca-Cola in said bottle and negligently and carelessly," since at most it eliminated a charge of special negligence and left only a charge of general negligence, did not change the cause of action, and defendant did not claim surprise nor ask for continuance. Sections 847.81 and 847.82 Mo. R.S.A.; Riggs v. Meeker Co. 8 S.W.2d 1035, (Mo. A.); Brinkmann Realty Co. v. Deidesheimer 201 S.W.2d 503, (Mo. A.); Beger v. Meara 171 S.W.2d 650, 351 Mo. 64; Dyer v. Harper 77 S.W.2d 106, 336 Mo. 52; Simon v. S.S. Kresge Co. 103 S.W.2d 523. The verdict is not excessive. 26 C.J. p. 789, Sec. 105, n 63. The petition sufficiently charges general negligence and the evidence is sufficient to support the verdict thereon. Maybach v. Falstaff Brewing Corp. 222 S.W.2d 87 (Mo. A.); Stolle v. Anheuser-Busch Inc., 271 S.W. 497, 307 Mo. 520; Hickman v. St. Louis Dairy Co. 90 S.W.2d 177, 232 Mo. App. 117; Bell v. S.S. Kresge Co. 129 S.W.2d 932 (Mo. A.) Where the evidence is sufficient one may sue either on breach of warranty or on negligence for the selling of unwholesome food. 26 C.J. p. 787, Sec 99. In this state, in several cases where the action was on breach of warranty and the evidence was very similar to that in the case at bar, it was held that the evidence was sufficient to support a verdict for the plaintiff. Foley v. Coca-Cola Bottling Co. of St. Louis 215 S.W.2d 314; Norman v. Jefferson City Coca-Cola Bottling Co. 211 S.W.2d 552 (Mo. A.); Hutchinson v. Moerschel Products Co. 133 S.W.2d 701, 234 Mo. App. 518; Nemela v. Coca-Cola Bottling Co. of St. Louis 104 S.W.2d 773 (Mo. A.); Madouros v. Kansas City Coca-Cola Bottling Co. 90 S.W.2d 445, 230 Mo. App. 275; Holyfield v. Joplin Coca-Cola Bottling Co. 170 S.W.2d 451 (Mo. A.).
Finch Finch and R. Kip Briney for defendant.
The trial court was correct in holding on the motion for new trial that there had not been sufficient evidence to justify the submission to the jury on the question of punitive damages because: There was no evidence whatsoever of a violation of statutes mentioned by the plaintiff, and hence there was no evidence of unlawful conduct by defendant. For there to be a basis for the recovery of punitive damages there must not only have been a wrongful act done by the defendant, but it must have been done with a bad motive or with negligence amounting to positive misconduct or in a manner evincing willful disregard of the rights of others; the acts must be of a nature as to be properly characterized as wanton or malicious, not necessarily the product of spite or ill will towards plaintiff personally, but intentionally done without just cause or excuse. DeSalme v. Union Elec. Light Power Co. 102 S.W.2d 779, 232 Mo. App. 245; Jeck v. O'Meara et al., 122 S.W.2d 897, 343 Mo. 559. Where plaintiff merely proves purchase from a retailer of a bottle originally bottled by defendant, and proves the presence of a foreign substance therein at the time of opening said bottle, the proof is wholly insufficient to prove wanton or malicious conduct, and hence it is wholly insufficient to justify submission of the question of punitive damages. Plaintiff's case was not a res ipsa loquitur case, because the instrumentality causing the injury was not in the possession or under the control of the defendant at the time of the injury. Maybach v. Falstaff Brewing Corp. (Mo. Supp.) 222 S.W.2d 87. Instruction No. P-2 was erroneously given because: It gave plaintiff the benefit of the res ipsa loquitur doctrine in a non res ipsa case, and erroneously told the jury that certain facts alone were sufficient to warrant a finding of negligence when such facts alone were not sufficient. Maybach v. Falstaff Brewing Corp., supra. It is a res ipsa instruction to which the plaintiff was not entitled for the additional reason that plaintiff's petition alleged violation of specific statutes by the defendant, and therefore pleaded specific negligence rather than general negligence, and where specific negligence is pleaded it is not proper to give a res ipsa instruction. Cole v. Uhlmann Grain Company 100 S.W.2d 311, 340 Mo. 277. It was error to admit in rebuttal evidence of other alleged instances of foreign substance in bottles which were bottled by defendant without first requiring definite and specific proof on the part of the plaintiff to establish that the bottles when opened were in the same condition as when they left the possession of the bottler. There is no presumption of a continued state of things in retrospect, and in the absence of proof that conditions did not change during the interval evidence of the subsequent condition is inadmissible. 20 American Jurisprudence, p. 208 (Sec. 210 of Evidence); 32 C.J.S., p. 439 (Sec. 585 of Evidence). Instruction No. 1 was erroneous because it submitted to the jury the question of whether the contents of the bottle in question were poisonous when there was no evidence to support such a finding or to justify the submission of the same to the jury.
This is an unusual case, because it involves two appeals in the same case. Such appeals were consolidated by agreement; both parties used the same transcript, and the cases were argued together in this Court.
The original petition was filed May 21, 1948. On November 20, 1948, plaintiff (who is both appellant and respondent in this Court) filed her amended petition in two counts. The first count of the amended petition was dismissed by plaintiff at the conclusion of all of the evidence, and therefore need not be further noticed.
The second count was amended by plaintiff at the close of her case by striking out the words "fail to properly sterilize said bottle before placing any `Coca-Cola' in said bottle and negligently and carelessly * * *." It is the theory of plaintiff that the second count of the amended petition thereafter charged defendant with negligence, under the res ipsa loquitor doctrine, a theory which we do not need to discuss.
On December 1, 1948, the defendant (both respondent and appellant here) filed its answer. The answer to the first count of plaintiff's petition need not be further considered, for the reason heretofore mentioned.
In the second count of her amended petition, the plaintiff alleged that she was sickened by a mouse left in a bottle of Coca-Cola by defendant and was thereby rendered "violently ill and nauseated and vomited and was seized with cramps, pain and misery in and about her stomach, abdomen and head; she received a severe and violent shock to her entire nervous system; the lining and membrane of her stomach were caused to become inflamed and sore and her digestive system was poisoned; it was necessary for her to consult and accept treatment from a physician and she was taken to Dr. W.J. Hux in Essex, Missouri, where the poisonous contents of the bottle of `Coca-Cola' which she drank and other food and contents of her stomach which had become poisoned because of the drinking of the same were removed from her stomach and she has been compelled to take medicine continuously since that time; she has suffered great physical and mental anguish and her stomach is and will continue to be in a weakened condition; it is difficult and will continue to be difficult for her to eat and retain food; she cannot partake of nourishment as formerly; she frequently becomes and will continue to become ill and nauseated and suffer intense headache and fainting spells; and she has been and will continue to be mentally upset and the thought and recollection of her experience in connection with the drinking and swallowing of the contents of the bottle of `Coca-Cola' as aforesaid causes her and will continue to cause her to lose her appetite and be mentally upset."
The prayer of her petition was for $5,000.00 actual damages and $5,000.00 punitive damages. On January 4, 1949, the jury returned a verdict for plaintiff in the sum of $900.00 actual damages and in the sum of $900.00 punitive damages.
On January 12, 1949, defendant filed its motion for new trial, which was sustained, on March 21, 1949, as follows:
"Motion for new trial sustained unless plaintiff enters remittitur of $900.00, the amount awarded her for punitive damages, within ten (10) days, because no sufficient evidence to justify submission on question of punitive damages."
To this order of the trial court, both plaintiff and defendant objected and excepted at the time. Plaintiff refused to enter a remittitur of $900.00 for punitive damages, from the verdict returned by the jury, as required by the trial court, and she has appealed. Both plaintiff and defendant gave notice of appeal on March 31, 1949.
The order of the trial court shows that the motion of defendant for new trial was sustained solely because there was "no sufficient evidence to justify submission on question of punitive damages." The trial court must therefore have decided all other questions in the case, then before him, in favor of the plaintiff.
We must assume that the trial court, in the case then before him, held that the evidence of plaintiff was otherwise sufficient. We therefore can say that the trial court then held that there was sufficient evidence of a dead mouse in the bottle of Coca-Cola, and that the evidence to support that claim was sufficient. The plaintiff testified to the presence of such dead mouse in the bottle. She was corroborated by her son and by her husband. The woman who sold the bottle to plaintiff's son saw a mouse in the bottle and Dr. Hux also testified that he saw it.
The presence of a dead mouse in the bottle of Coca-Cola was a question of fact, in that case, and must have been so found by the jury. Defendant filed a motion for a new trial, and, among other things, attacked the sufficiency of plaintiff's evidence in that case. Defendant's claim of this and other claims of error, must have been overruled by the trial court, since the motion of defendant for a new trial in that case was sustained solely for error in submitting the question of punitive damages to the jury. The trial court evidently found that the evidence, as to the presence of the mouse in the bottle, was sufficient in that case, and approved the finding of the jury in that respect. The presence of a mouse in the bottle is not an open question on this appeal.
Ames v. Orme, 28 Mo. 381; Oakes v. Mound City Mutual Ins. Co. 52 Mo. 237; Reynolds v. Buffington, 75 Mo. App. 86; Strode v. Abbott, 102 Mo. App. 76 S.W. 644.
Plaintiff contends that the trial court erred in requiring her to remit the punitive damages, assessed by the jury. Does the proven failure of defendant to put into its bottles substances that were pure, clean and wholesome, alone justify the assessment of punitive damages?
Plaintiff cites Baxter v. Magill, 127 Mo. App. 392 l.c. 398. (We have also found that case in 105 S.W. 679.) That was an assault and battery case and punitive damages were asked for in the petition. The St. Louis Court of Appeals had sustained the petition. The jury assessed punitive damages in the sum of $1000.00.
Dealing with the subject of such punitive damages, Nortoni, Judge, said:
"* * * And for that matter, if the point had merit, the allegations of malicious and unlawful assault and battery contained in the body of the petition would be construed as having a direct bearing upon, and be considered in connection with the prayer for punitive damages, inasmuch as such damages are awarded, when awarded at all in these cases, because of the malicious character of the assault."
Plaintiff also cites McKinzie v. Randolph, 257 S.W. 126, l.c. 127. At the page cited, (and quoting from Reel v. Consolidated Investment Co. (Mo. Sup.) 236 S.W. 43, 46,) Higbee, Commissioner said:
"* * * `But an act or omission, though properly characterized as negligent, may manifest such reckless indifference to the rights of others that the law will imply that an injury resulting from it was intentionally inflicted.'"
Appellant next cites De Salme v. Union Electric Light Power Co. 102 S.W.2d 779, l.c. 783. That case was reversed and remanded. While the St. Louis Court of Appeals, in an opinion by Bennick, Commissioner, held that the conduct of defendant was sufficient to subject it to the punitive damages, assessed by the jury, it further said:
"As constituting the basis for the allowance of punitive damages, there must not only have been a wrongful act done by the defendant, but it must have been done with a bad motive, or with negligence amounting to positive misconduct, or in a manner evincing willful disregard of the rights of others. Schafer v. Ostmann, 148 Mo. App. 644, 129 S.W. 63. In other words, the defendant's act must have been of a nature to be properly characterized as wanton or malicious, not necessarily the product of spite or ill will towards the plaintiff personally, but intentionally done without just cause or excuse. Lampert v. Judge Dolph Drug Co., 238 Mo. 409, 141 S.W. 1095; Jones v. West Side Buick Auto Co., (Mo. App.) 93 S.W.2d 1083."
We will not note the many other cases cited by plaintiff on the question of her right to have the jury assess punitive damages. We will assume that plaintiff in her brief has first cited "the three authorities principally relied on," as provided in Rule (a) 1.08 of the Supreme Court, and feel that these cases are wholly insufficient to justify assessment of punitive damages.
We are satisfied that defendant was not guilty of a wrongful act, intentionally done, even if it did put a cap on a bottle of Coca-Cola with a mouse therein, as found by the jury, and, presumably, as approved by the trial court.
Punitive damages are not a matter of right. Such damages should only be assessed by the jury when there is evidence that the defendant has acted maliciously or with wanton disregard of the rights of others. There is no such evidence in this case.
In spite of the care of defendant, as testified to by its witnesses, a mouse probably got into one of its bottles and was sold to plaintiff's son in that condition and caused plaintiff's illness later. But there is nothing in the record in this case to show that defendant permitted the bottle of Coca-Cola to go out from its plant in Sikeston, in wanton disregard of the rights of plaintiff, or of any one else, and it was not liable for punitive damages, as held by the trial court, and as asserted by plaintiff.
Defendant filed a motion for new trial, attacking the action of the trial court in many respects. As the trial court has already sustained defendant's motion for a new trial, unless plaintiff made a remittitur, and plaintiff refused to make such remittitur within the time prescribed by the trial court, the assignments of error made in defendant's motion for a new trial need not be considered by us on defendant's appeal.
Defendant has already had its motion for a new trial sustained, since plaintiff did not make the remittitur required of her by the trial court. "Sufficient unto the day is the evil thereof."
It is our conclusion that the action of the trial court, in sustaining defendant's motion for a new trial, upon the conditions stated, and plaintiff's refusal to meet those conditions, apply to the entire case. Defendant has already been granted a new trial, upon the whole case.
It is our opinion that the action of the trial court, in sustaining defendant's motion for a new trial, except only on the conditions imposed on plaintiff, should be affirmed, and, since defendant's motion for a new trial has already been sustained, by reason of plaintiff's failure to comply, defendant's appeal should be dismissed.
Such is our order. Vandeventer, P.J., and McDowell, J., concur.