Summary
In Whited, a consumer who drank part of beverage before discovering a dead bug inside his drink bottle did not have to prove actual contamination of his drink or actual physical contact with the dead bug to avert summary judgment.
Summary of this case from Chambley v. Apple RestaurantsOpinion
34584.
DECIDED MAY 19, 1953.
Action for damages. Before Judge Hendrix. Fulton Superior Court. January 22, 1953.
Wm. E. Zachary, Marvin O'Neal, Jr., for plaintiffs in error.
Marshall, Greene, Baird Neely, contra.
The case was one which under the evidence should have been submitted to a jury on the question of negligence, and it was error to grant a nonsuit.
DECIDED MAY 19, 1953.
A. G. Whited entered suit against Atlanta Coca-Cola Bottling Company. The petition in substance alleged: First, that the defendant is a corporation with its place of business in Fulton County, Georgia. Second, that it is engaged in the manufacturing, bottling, and distributing for sale at retail to the public a soft drink known as Coca-Cola; that the drink is composed of various food concentrates mixed with carbonated water and bottled in a specially manufactured container or bottle, and sealed with a metal cap; that it is manufactured by the defendant and bottled solely for sale to the public for consumption as a beverage and refreshment drink, and it is held out by the defendant to the public as harmless, safe, and wholesome for human consumption as a food or drink.
Third, "that defendant did, on the date set out hereafter or some date prior thereto deliver such sealed bottle of Coca-Cola in a quantity to a place of business known as Downtown Chevrolet Company . . . in the City of Atlanta, Georgia, the purpose of such delivery was so that said Downtown Chevrolet Company could sell bottles of Coca-Cola to the general public. . ."
Fourth, "that on the 22nd day of August, 1951, petitioner purchased from said Downtown Chevrolet Company a bottle of said Coca-Cola manufactured, bottled, and distributed by the defendant as aforesaid."
(a) "That the bottle of Coca-Cola thus purchased was then and there opened by the petitioner and he placed the bottle to his mouth and drank therefrom the Coca-Cola contained therein."
Fifth, "That, upon taking a portion of the said drink from the bottle as aforesaid, petitioner for the first time learned that in said bottle there was the dead body of a partially decomposed roach."
(a) The liquid thus swallowed was poisonous to the human system, putrid, deleterious, and unwholesome because of the said decaying matter therein, to wit, the decomposed body of a roach, and caused petitioner to retch and vomit; he suffered great nausea and sickness for several weeks continuously.
(b) The memory of the shock which he thus suffered, the sickness and vile and putrid and deleterious liquid entering his mouth, throat, and stomach caused him for months thereafter to rebel against any kind of food or drink and to become at times temporarily without appetite, and unable at times to eat.
(c) "The violent, physical effort in his stomach caused when he repelled the poisonous, putrid, deleterious and unwholesome liquid resulted in pains in his stomach which lasted for several days and left the muscles of his abdomen sore and sensitive."
(d) "He suffered and does suffer from said experience, shock and mental and physical pain and anguish."
Sixth, "Petitioner was before said occurrence, strong, healthy and well; able to consume any kind of wholesome food and drink and he had no mental or physical pain and anguish whatsoever.
Seventh, "Petitioner shows that said defendant in bottling and offering for sale said drink, did not use ordinary care and diligence, in that they failed to keep foreign, putrid and deleterious and unwholesome matter out of said Coca-Cola but allowed said roach to get into said bottle and become sealed therein, and failed to properly inspect said package or bottle so as to prevent its being sent out to be sold to the general public in the poisonous, deleterious, putrid, and unwholesome condition in which it was, as aforesaid, all of which was: (a) negligence as a matter of fact, and (b) negligence as a matter of law in violation of the provisions of Code § 105-1101, which provides: `Any person who knowingly or carelessly sells to another unwholesome provisions of any kind, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or his family, shall be liable in damages for such injuries.'" (c) The approximate cause of petitioner's injuries, as aforesaid, and the damages therefor hereinafter claimed.
"Wherefore petitioner prays: (1) that process issue requiring the defendant to be and appear at this honorable court within the time provided by law to answer petitioner's complaint; (2) judgment against the defendant in the amount of $5,000."
No demurrer was interposed. The defendant answered admitting paragraphs 1, 2, and 3 of the petition. the defendant for want of sufficient information neither admitted nor denied the allegations of paragraphs 4, 4(a), and 5 of said petition. The defendant denied the allegations of paragraph 5(a). The defendant for want of sufficient information neither denied nor admitted the allegations of paragraph 6. The defendant denied paragraph 7 of the petition. The defendant, further answering, averred: "That at all times they use the highest possible degree of care in the preparation and bottling of the drink known as Coca-Cola and that it has never knowingly or carelessly bottled or sold any product containing unwholesome matters." In support of the petition, the plaintiff testified in his own behalf substantially; That on August 22, 1951, he sent his helper, Ferguson, to the machine in question for a Coca-Cola; that the helper returned with the Coca-Cola and handed it to the witness in the presence of Mr. Thompson, a sales representative; that witness pressed the top off the bottle of Coca-Cola on the edge of the bench and drank the contents; that in about a minute or so after the witness took a drink from the bottle and before he started drinking again from the bottle, he turned sick and started vomiting and vomited continuously for nearly an hour. Witness did not know what it was that made him sick. He did know that one of the objects was a roach. Witness recognized the bottle which had the Coca-Cola trademark registered thereon. He recognized it as a part of the Coca-Cola that he drank. He drank about half of the contents of the bottle that came out of the vending machine in question. There was a roach in the bottle which witness drank. Witness did not know the other contents of the bottle. He was positive the bottle exhibited to him was the one from which he drank. Witness further testified that Mr. Thompson carried the plaintiff to a company doctor; that the plaintiff was actually sick about four days, but only remained off the job the day he drank the Coca-Cola and the following day; that he did not feel like working for about four days, but he did so because there was no one to take his place; that the doctor gave the plaintiff something to settle his stomach; that his stomach was very sore for three or four days as a result of vomiting; that he vomited continuously for an hour. The plaintiff further described the ill effects which resulted from his drinking the Coca-Cola with the roach in it. The plaintiff kept the bottle from which he drank from the date he drank the Coca-Cola until the date of the trial and "no one has monkeyed with it."
On cross-examination, the witness testified that he was head of the paint department at Downtown Chevrolet; that the Coca-Cola vending machine was somewhat in an open space where people drove in and repairs were made on automobiles; that Ferguson, the helper who brought the Coca-Cola to the plaintiff, is a colored man; that the helper brought the Coca-Cola to the plaintiff; that the Coca-Cola bottle was not opened when handed to the plaintiff by the helper; that the helper brought one Coca-Cola to the plaintiff and one to Mr. Randall, both unopened — "I opened mine myself"; that the defendant did not examine the bottle in any way before he opened and drank the Coca-Cola; that he never had examined the contents of a bottle of Coca-Cola that he bought; that the plaintiff carried the Coca-Cola bottle with him when Mr. Thompson carried the plaintiff to the doctor; that the plaintiff kept the bottle stored in a closet in his home; that he showed it to his lawyer the day before the trial; that the plaintiff went to no other doctor; that the plaintiff took two doses of medicine which the company doctor gave to him.
T. L. White testified for the plaintiff substantially: that he was a parts manager for the Downtown Chevrolet Company; that the company has no way of dispensing Coca-Cola to people other than the Coca-Cola vending machine; that they had a standard coin-vending machine as furnished by the Coca-Cola Company on August 22, 1951; that the bottles were put in the machine, the machine locked, and the bottles could only be gotten out by someone unlocking the machine with the key and then using a wrench to unbolt it, or else using a coin; that the only time the machine is ever opened for any other purpose than to load it is when the machine gives some trouble and the Coca-Cola Company sends a service man out to service the vending machine; that the custom prevails that the Coca-Colas are delivered by the Coca-Cola Bottling Company; they are taken from a truck and carried around past the machine to a cabinet that is built into a wall in a corner in the building and locked up; that the general custom of handling the Coca-Colas is that sometimes the man who delivered the Coca-Colas locked the cabinet, and that when he didn't lock it, one of the attendants of the Downtown Chevrolet Company locked it; that the Coca-Cola crates were never left out over a few minutes where people could get to them. On cross-examination, this same witness testified: "There are five of us at the present time working in the parts department"; that the parts department does not actually run the Coca-Cola vending machine; that the Downtown Chevrolet Company owns the machine; that it was one of witness's assigned days to fill the machine and keep the bottles picked up there; "I keep the keys in the parts department for the machine . . . the key to this cabinet I am talking about is on the same ring that the key to the machine; the bunch of keys we kept in a desk in the parts department . . . I have access to the keys. If they wanted to, the other four people in the parts department have access to the keys. I actually took the bottles and put them in the machine myself. At the time I did all of it. Now they have a colored boy who does it. I put them in it that time. I put them in the cabinet other than the times the Coca-Cola men themselves put them in." Witness did take the bottles straight from the cabinet to the machine and loaded the machine and the bottles were not taken out of the machine at any time other than when dispensed with a coin. "In August, 1951, I did go out to the machine with the [Coca-Cola Company] truck drivers." Witness kept the empty bottles in the cabinet and would lock the cabinet and deliver the empty bottles to the truck driver; "the empties" were taken out and full bottles put back in the cabinet.
D. L. Ferguson testified for the plaintiff substantially: that on August 22, 1951, the plaintiff directed the witness to get a Coca-Cola for the plaintiff; that the witness went to the vending machine where he placed the coin in the machine and procured a bottle of Coca-Cola for the plaintiff and "cracked" the top of the bottle just a little in the opener of the machine; that witness did not put anything in the bottle while he was taking it from the machine to the plaintiff; that the cap was still on the bottle when witness gave the bottle to the plaintiff and then walked away; that, after the plaintiff had drunk from the Coca-Cola, witness returned and saw some roaches in the bottle which he had carried to the plaintiff; that the plaintiff was rushed to the doctor; that the bottle was held up to the light and witness could see the roaches in it. "They were bugs."
On cross-examination, the same witness testified that he saw the plaintiff vomiting; that the plaintiff had drunk about half of the Coca-Cola or a little bit more; that witness saw no one pour Coca-Cola out of that bottle; that the Coca-Cola looked like it had bugs in it; that "they were floating around in the liquid . . . not stuck on the side of the bottle." Witness went himself to the Coca-Cola machine, put the coin in it and got the Coca-Cola out. Witness did not "crack" the top from the Coca-Cola bottle enough for a roach to crawl under it.
There was introduced into evidence the Coca-Cola bottle from which the plaintiff drank and which had been identified by the plaintiff and by the witness, Ferguson.
On motion of the defendant, the court granted a nonsuit, and the case is here on a direct bill of exceptions to this judgment.
1. It is conceded that the nonsuit is based on the proposition that the evidence, both direct and circumstantial, is insufficient to show that the bottle of Coca-Cola purchased by the plaintiff through the vending machine was a bottle of Coca-Cola sold by the defendant to the Downtown Chevrolet Company's vending machine. Let us first see the pleadings regarding this issue. Paragraph 3 of the petition pertaining to this issue alleges: "That the defendant did, on the date set out hereafter, or some date prior thereto, deliver such sealed bottles of Coca-Cola in a quantity to a place of business known as the Downtown Chevrolet Company." The defendant in its answer admits this paragraph of the petition. The succeeding paragraph 4 alleges: "That on August 22, 1951, petitioner purchased from the said Downtown Chevrolet Company a bottle of said Coca-Cola manufactured, Bottled, and described by the defendant as aforesaid." (Italics supplied.) It will thus be seen that, so far as the pleadings are concerned, it is alleged on the part of the plaintiff and admitted on the part of the defendant that the defendant on the date in question, August 22, 1951, or prior thereto, delivered Coca-Colas to the vending machine from which the plaintiff purchased the Coca-Cola from which he drank. It is alleged in the petition in paragraph 4 that a bottle of the said Coca-Cola so delivered by the defendant to the Downtown Chevrolet Company as alleged in paragraph 3 was purchased by the plaintiff on August 22, 1951, from which bottle the plaintiff drank and consequently became ill. The defendant contends that the evidence is insufficient to show that the bottle of Coca-Cola purchased by the plaintiff was a bottle of Coca-Cola delivered by the defendant company as alleged in paragraph 3.
2. To determine this question, since we have set out the evidence in detail, as well as the pleadings, it becomes necessary that we examine the law with reference to a nonsuit under such evidence in order to conclude whether the trial court was authorized to grant a nonsuit. In a nonsuit, the sole question is whether or not the evidence on behalf of the plaintiff is sufficient to prove the material allegations of the petition. In Kirby v. Atlanta Gas Light Co., 84 Ga. App. 786, 788 ( 67 S.E.2d 413) this court stated: "The sole question for determination by this court on exception to the granting of a nonsuit is whether or not the plaintiff's evidence is sufficient to prove her allegations. Kelly v. Strouse, 116 Ga. 872, 883 ( 43 S.E. 280); Candler v. Automatic Heating Inc., 40 Ga. App. 280, 283 ( 149 S.E. 287); Advanced Refrigeration Inc. v. United Motors Inc., 71 Ga. App. 576, 577 ( 31 S.E.2d 605). `A nonsuit shall not be granted merely because the court would not allow a verdict for plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted.' Code § 110-310. Although the language in that section seems to indicate that a nonsuit should be granted in all cases where the plaintiff ought not to recover, it was held in Kelly v. Strouse, supra, and Clark v. Bandy, 196 Ga. 546, 559 ( 27 S.E.2d 17), that in a motion for nonsuit there is only one question: Do the allegations and the proof correspond?
"In the case of Clark v. Bandy, supra, it was stated, `Since a failure to set out the plaintiff's cause of action with sufficient clearness is no ground of nonsuit ( Jossey v. Stapleton, 57 Ga. 144), and defective pleading afford no reason for the grant of a nonsuit ( Greenfield v. Vason, 74 Ga. 126), and since the office of such a motion is not to test the legal sufficiency of a petition ( Reeves v. Jackson, 113 Ga. 182, 184, 38 S.E. 314; McCandless v. Conley, 115 Ga. 48, 41 S.E. 256), or to invoke a ruling as to whether the petition states a cause of action ( Evans v. Josephine Mills, 119 Ga. 448, 46 S.E. 674), but only brings up the question whether the plaintiff proved his case as laid, without establishing such additional facts as disproved his right to recover ( Duke v. Bibb Manufacturing Co., 120 Ga. 1074, 18 S.E. 408); and since further, a nonsuit will be refused if there be even slight evidence to support the plaintiff's case ( Barnett v. Terry, 42 Ga. 283 (3); Elrod v. McConnell, 170 Ga. 892, 154 S.E. 449), we need not make inquiry as to whether or not the plaintiff's petition was defective, nor are we here concerned with any question of substantive law with respect to the subject matter of the suit. Our duty is merely to examine the allegations of the petition and the proofs offered by plaintiff, and to compare the same in order to determine whether, on application of the principles hereinbefore referred to, the nonsuit should have been granted.'"
Where the grant of a nonsuit is under consideration, we must construe the evidence most favorably to the plaintiff. Highsmith v. National Linen Service Corp., 63 Ga. App. 112 ( 10 S.E.2d 237); Mason v. Hall, 72 Ga. App. 867, 873 ( 35 S.E.2d 478); Kirby v. Atlanta Gas Light Co., supra. See also Chenall v. Palmer Brick Co., 117 Ga. 106 ( 43 S.E. 443); Macon Coca-Cola Bottling Co. v. Crane, 55 Ga. App. 573 ( 190 S.E. 879). In Mason v. Hall, supra, p. 873, this court said: "A motion for nonsuit should not be granted when there is any evidence tending to sustain the plaintiff's action, or when the jury can fairly infer from the evidence a state of facts favorable to the plaintiff. Moseley v. Patterson, 27 Ga. App. 133, 135 ( 107 S.E. 623); Gresham v. Stewart, 31 Ga. App. 25, 27 ( 119 S.E. 445); Starr v. Greenwood, 48 Ga. App. 535, 540 ( 173 S.E. 243); Hawkins v. National Surety Corp., 63 Ga. App. 367, 372 ( 11 S.E.2d 250); East West R. Co. v. Sims, 80 Ga. 807 (2) ( 6 S.E. 595); Stephens v. Stephens, 168 Ga. 630, 645 ( 148 S.E. 522). The jury may, from facts proved, and sometimes from the absence of counter-evidence, infer the existence of other facts reasonably and logically consequent on those proved. Code § 38-123." See Anderson v. Blythe, 54 Ga. 507.
From the allegations of the petition and the evidence when applied to the authorities hereinbefore cited and quoted, we are of the opinion that the court erred in granting a nonsuit. We have studied carefully the decisions called to our attention by learned counsel representing the defendant. They are: Georgia Ry. Electric Co. v. Harris, 1 Ga. App. 714 ( 57 S.E. 1076); White v. Executive Committee of the Baptist Convention, 65 Ga. App. 840 (2) ( 16 S.E.2d 605); Herman v. Aetna Casualty Surety Co., 71 Ga. App. 464, 470 ( 31 S.E.2d 100); Sixth Street Corp. v. Daniel, 80 Ga. App. 680, 684 ( 57 S.E.2d 210); Miller v. Gerber Products Co., 207 Ga. 385 ( 62 S.E.2d 174); Pendleton v. Newton, 78 Ga. App. 205, 208 ( 50 S.E.2d 753). We find nothing in those cases sufficient to sustain the granting of a nonsuit under the whole record in this case.
Judgment reversed. Townsend and Carlisle, JJ., concur.