Summary
affirming the verdict for an individual who swallowed particles of glass contained in a soft drink bottle because the manufacturer did not offer any evidence to rebut the evidence showing it had manufactured, bottled, and distributed the soft drink at issue
Summary of this case from Clayton v. Eli Lilly & Co.Opinion
1 Div. 30.
June 9, 1971.
Appeal from the Circuit Court, Mobile County, Elwood Hogan, J.
Johnston, Johnston, Kendall, Mobile, for appellant.
When there is a lack of proof as to any material averment, the general charge should be given for the defendant. Central of Ga. Ry. Co. v. Isbell, 198 Ala. 469, 73 So. 649; Ala. Great So. Ry. Co. v. Hill, 34 Ala. App. 466, 43 So.2d 136; Dorough v. Ala. Great So. R. Co., 221 Ala. 305, 123 So. 602.
Cunningham, Bounds Byrd and Warren L. Hammond, Jr., Mobile, for appellee.
On appeal, evidence will not be weighed, but all favorable presumptions will be indulged in favor of the conclusion reached in trial court, and such conclusion will not be disturbed unless palpably erroneous. City of Montgomery v. Mott, 266 Ala. 422, 96 So.2d 766; Mayben v. Travelers Ind. Co., 273 Ala. 643, 144 So.2d 52; Bagley v. Green, 277 Ala. 118, 167 So.2d 545; Allred v. Dobbs, 280 Ala. 159, 190 So.2d 712.
Suit was filed by Roy Miller, appellee here, in the Circuit Court of Mobile County, for injuries and damages resulting from having swallowed particles of glass contained in a bottle of soft drink manufactured and distributed by appellant in Mobile, Alabama. There was a verdict and judgment for appellee in the amount of $1000. After denial of motion for new trial, this appeal was taken by defendant below.
Briefly stated, the evidence below tended to show that appellee purchased a soft drink from a machine containing soft drinks manufactured and distributed by appellant. After consuming a part of the contents and feeling pricking sensations in the throat, examination of the remainder of the drink disclosed particles or slivers of glass therein. X-ray examination disclosed glass in the digestive tract of appellant. Glass was subsequently recovered from the feces by the hospital.
Appellant offered the usual testimony in such cases as to its methods of bottling its products.
Upon submission to the jury, verdict was for plaintiff below.
Review on appeal is requested in brief as to one assignment of error. That assignment is that the trial court erred in refusing to give at the request of appellant the following written charge: "The court charges the jury that, if you believe the evidence in this case, your verdict should be for the defendant."
Argument in support of that assigned error is that there was a failure of proof that appellant, Coca-Cola Bottling Company, Incorporated, A Corporation, manufactured, bottled, delivered and sold the soft drink containing glass consumed by the appellee.
The evidence in regard to the point raised by appellant was that the products in the coke machine from which appellee purchased the drink were sold by the Coca-Cola Company in Mobile. The drinks were delivered to the store and the machine was filled and serviced by the Coca-Cola Company. The superintendent of defendant-appellant testified that defendant manufactured, bottled and distributed in Mobile the kinds of drinks in the machine, namely, Coca-Cola, and Sunrise orange and grape. The Coca-Cola Bottling Company of Mobile was franchised by the parent company to bottle and distribute Coca-Cola products in Mobile.
In the absence of any evidence to the contrary, we think the evidence as to the appellant being the manufacturer, bottler and distributor of the soft drink consumed by appellee sufficient as against a request for the affirmative charge. "Where from the evidence a reasonable inference may be drawn adverse to the party requesting the affirmative charge, the charge is properly refused." Rosen v. Lawson, 281 Ala. 351, 202 So.2d 716; Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594.
Affirmed.