Opinion
No. 39708.
September 26, 1955.
1. Food — manufacturer — bottler — unwholesome beverage — evidence.
In suit against Bottling company for injuries sustained by purchaser in drinking from bottle that allegedly contained a decomposed bug or insect, evidence relating to Bottling company as manufacturer and bottler of drink in question was sufficient for the jury.
2. Food — negligence — manufacturer — unwholesome beverage — res ipsa loquitur — evidence — insufficient to warrant peremptory — jury justified in finding for manufacturer.
In such case, evidence was sufficient to make out a case, to go to the jury under doctrine of res ipsa loquitur but such evidence was not sufficient to warrant plaintiff's peremptory instruction in view of testimony which if believed was sufficient to justify jury in finding that drink at time it was purchased was not in same condition as when it was bottled and delivered by Bottling company.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Pearl River County; SEBE DALE, Judge.
Morse Morse, Poplarville, for appellant.
I. The Court below erred in not sustaining the objection of appellant as to the care and caution of appellee in bottling the drink as the suit was bottomed on a warranty and not negligence. Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; Coca-Cola Bottling Works v. Simpson, 158 Miss. 390, 130 So. 479; Curtiss Candy Co. v. Johnson, 163 Miss. 426, 141 So. 762; DuPont Co. v. Ladner, 221 Miss. 378, 73 So.2d 249; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726.
II. The Court erred in refusing to grant to appellant a peremptory instruction to find for appellee.
M.M. Roberts, Hattiesburg; Tate Thigpen, Picayune; H.H. Parker, Poplarville, for appellee.
I. Two contentions are made for appellant: (1) that the testimony furnished by Mr. W.A. Thomson of ingredients going into the drink and of the care and caution used in the processing and bottling of the drink should not have been admitted; and (2) that the Court erred in refusing to grant appellant a peremptory instruction. The cases on this subject in Mississippi are clear-cut and unless the law of this State relating thereto is to be changed, that done by the Trial Court was the only available course of conduct.
II. On question of competency of testimony of W.A. Thomson, even though the action is in assumpsit on an implied warranty, the seller may show how the goods were manufactured and that there was no negligence, such evidence tending to show that there was no breach of warranty. Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; Coca-Cola Bottling Works v. Simpson, 158 Miss. 390, 130 So. 479; Curtiss Candy Co. v. Johnson, 163 Miss. 462, 141 So. 762; E.I. DuPont DeNemours Co. v. Ladner, 221 Miss. 378, 73 So.2d 249; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726; 77 C.J.S., Sec. 366 p. 1291.
III. The Court should have granted the peremptory instruction requested for the defendant. Ash v. Childs Dining Hall Co., 231 Miss. 86, 120 N.E. 396, A.L.R. 1556; Blount v. Houston Coca-Cola Bottling Co., 184 Miss. 75, 185 So. 241; Coca-Cola Bottling Co. v. Cox, 174 Miss. 790, 165 So. 814; Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305; Coca-Cola Bottling Works, Inc. of Columbus v. Petty, 190 Miss. 631, 200 So. 128; Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S.W. 155; Cudahy Packing Co. v. McPhail, 170 Miss. 508, 155 So. 163; Hasbrouck v. Armour, 152 Wis. 570, 140 N.W. 292; Jackson Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791; Jackson Coca-Cola Bottling Co. v. Grubbs, 143 Miss. 590, 108 So. 732; Meridian Coca-Cola Bottling Co. v. Illges, 187 Miss. 27, 191 So. 817; Yazoo M.V.R.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; 26 C.J., Sec. 95 p. 786; 77 C.J.S., Sec. 366 p. 1291.
Mrs. James Stevens brought suit against the Picayune Coca-Cola Bottling Company to recover damages on account of an illness which she claimed to have sustained because of drinking a part of the contents of a bottle of Coca-Cola, which contained a decomposed bug or insect. The jury returned a verdict for the defendant; and from the judgment entered thereon, she appealed.
(Hn 1) Mrs. Stevens, according to her evidence, deposited a nickel in a vending machine at the Pearl River County Hospital, and obtained a Coca-Cola. It was somewhat dark in the hall, and she did not notice the bottle at the time, but realized that something was wrong as she felt sick immediately after drinking a portion of the contents. She did not tell anyone at the hospital at the time, and no one corroborated her story. She walked across the street to the office of Dr. Leo Stewart and was nauseated and vomiting at the time. The doctor was of the opinion that her condition was caused from drinking a part of the contents of the bottle with a foreign substance in it. The bottle, with the residue therein, was offered in evidence. The proof which related to the defendant as the manufacturer and bottler of the drink was sufficient to go to the jury on that phase of the case.
W.A. Thompson, an officer of the defendant company, testified in detail as to the manner of manufacturing and bottling the drinks. Suffice it to say, his evidence, if believed by the jury, was sufficient to raise a serious doubt as to whether the drink in question was bottled in the defendant's plant and delivered to the vending machine in the same condition in which Mrs. Stevens testified that she subsequently found it.
The appellant contends here that the court should have granted her requested peremptory instruction.
Now the plaintiff's evidence made out a case to go to the jury under the doctrine of res ipsa loquitur. Blount v. Houston Coca-Cola Co., 184 Miss. 69, 185 So. 241; Coca-Cola Bottling Works, Inc. v. Petty, 190 Miss. 631, 200 So. 128. But such evidence was not sufficient to warrant the peremptory in view of the fact that the evidence of W.A. Thompson, if believed, was sufficient to justify the jury in finding that the drink, at the time it was purchased by the plaintiff, was not in the same condition as when it was bottled and delivered by the defendant; and that the plaintiff had not proved her case by a preponderance of the evidence.
Consequently whether or not the decomposed bug or insect was in the bottle when it left the appellee's plant and was delivered to the vending machine was a question for the jury, and there was no error in refusing the requested peremptory. Laurel Coca-Cola Bottling Co. v. Hankins, (Miss.) 75 So.2d 731.
No error appears in the record and the cause is therefore affirmed.
Affirmed.
McGehee, C.J., and Hall, Kyle and Holmes, JJ., concur.