Summary
In Meridian Coca Cola Bottling Co. v. Illges, 187 Miss. 27, 191 So. 817, the foreign matter was a fly and the award was $375. Wilson v. Rich, 163 Miss. 403, 141 So. 287, is in point on principle although not in fact.
Summary of this case from Coca Cola Bottling Works v. TateOpinion
No. 33856.
November 6, 1939.
1. TRIAL.
In action for injury from drinking carbonated beverage from bottle containing a fly, where evidence of precautions taken by manufacturer to prevent contamination in process of bottling was full and complete, refusing to permit jury to view the plant where beverage was bottled was not an abuse of discretion. (Code 1930, section 2066.)
2. DAMAGES.
$750 for injury from drinking carbonated beverage from bottle containing a fly, consisting of nauseation and vomiting on day beverage was consumed, followed by a feeling of nauseation for 10 days or 2 weeks thereafter, was excessive in the amount of $375.
APPEAL from the circuit court of Lauderdale county; HON. A.G. BUSBY, Judge.
Jacobson Snow, of Meridian, for appellee.
The facts of this case as shown by the record are insufficient to raise the probability that the coca cola complained of was contaminated when it left the possession and control of appellant.
Cudahy Packing Co. v. Baskin, 155 So. 217, 170 Miss. 834; Cudahy Packing Co. v. McPhail, 155 So. 163, 170 Miss. 508; Cudahy Packing Co. v. Lyons, 111 So. 305, 145 Miss. 876; Jackson Coca-Cola Bottling Co. v. Chapman, 64 So. 791, 106 Miss. 864; Coca-Cola Bottling Works v. Simpson, 130 So. 479, 158 Miss. 390; Rainwater v. Hattiesburg Coca Cola Bottling Co., 131 Miss. 315, 95 So. 444; Chenault v. Hattiesburg Coca Cola Bottling Co., 118 So. 177, 151 Miss. 366; Blount v. Houston Coca Cola Co., 185 So. 241; Delta Nehi Bottling Co. v. Lucas, 185 So. 561; Biedenharn Candy Co. v. Moore, 186 So. 629, 184 Miss. 721; Freeman v. La. Coca Cola Bottling Co., 179 So. 621; Russo v. La. Coca Cola Bottling Co., 161 So. 909; Teche Lines v. Bounds, 179 So. 747; Y. M.V.R.R. v. Scaggs, 179 So. 274; Y. M.V.R.R. v. Lamensdorf, 178 So. 80, 180 Miss. 426; Graves v. Hamilton, 184 So. 56; Thomas v. Williamson, 187 So. 220; Harris v. Pounds, 187 So. 891; Kramer Service v. Wilkins, 186 So. 621; Mutual Benefit Health Accident Assn. v. Johnson, 186 So. 297.
There was no proof of probative value establishing the coca cola complained of was manufactured and bottled by appellant.
Jackson Coca Cola Bottling Co. v. Grubbs, 108 So. 732, 143 Miss. 590; Neely v. Jackson Coca Cola Bottling Co., 184 So. 467.
Motion to view premises and bottling machinery was well taken and should have been sustained. The court erred in not sustaining said motion.
Great Atlantic Pacific Tea Co. v. Davis, 171 So. 550, 177 Miss. 562; Mississippi Power Co. v. McCrary, 176 So. 165, 179 Miss. 427; Kroger Grocery Co. v. Lewelling, 145 So. 726, 165 Miss. 71.
Damages awarded were excessive and new trial should have been granted on motion of appellant.
Delta Nehi Bottling Co. v. Lucas, 185 So. 561.
J.V. Gipson, Fred Ross, and M.V.B. Miller, all of Meridian, for appellee.
In the case of Lowe v. Mobile O.R. Co., 116 So. 601, 149 Miss. 889, a case in which a peremptory instruction had been given in favor of the railroad company and against an injured person suing it, this court, in reversing the case, said.
"In a case of this kind, the rule is to assume as true the testimony of the party against whom the peremptory instruction is given, and to draw all favorable inferences for such party which might reasonably be drawn by a jury. Applying this rule to the facts before us, we think it was a case for the jury to decide, and it was error to give the peremptory instruction for the defendant."
Columbian Mut. Life Ins. Co. v. Gunn, 163 So. 455, 173 Miss. 897.
A reading of the cases cited by counsel clearly shows that there is no merit in counsel's contention that the case at bar was not one for the jury's decision.
It was shown without dispute in the case at bar that before the appellee ever saw the fly or the dregs in the bottom of the bottle he became sick and nauseated from drinking part of the contents of the bottle and went to the front of the store and began vomiting in the street, and after he came back in the contents of the bottle were examined and the dregs and fly were found.
Jackson Coca Cola Bottling Co. v. Chapman, 64 So. 791, 106 Miss. 864; Rainwater v. Hattiesburg Coca Cola Bottling Co., 95 So. 444, 131 Miss. 315; Bufkin v. Grisham, 128 So. 563, 157 Miss. 746; Blount v. Houston Coca Cola Bottling Co., 185 So. 242.
In the case of S.H. Kress Co. v. Sharp, 126 So. 650, 156 Miss. 68, our court announced the rule as to the effect of a view by a jury. In the Kress case a point was raised on appeal that the verdict was against the weight of evidence. The court held in effect that from oral testimony it was clear that the verdict was against the weight of evidence but as the jury had viewed the scene and probably saw things thereon not shown in the record, that the court could not hold that the verdict was against the weight of the evidence. Until the decision in the Kress case, supra, attorneys made motions for view by juries indiscriminately. The Kress case stopped such practice. Objections were raised as not theretofore because vital rights of clients were affected. The Bar was confused. The court had to clarify the matter which it did in opinions beginning with National Box Co. v. Bradley, 157 So. 91, 171 Miss. 15, 95 A.L.R. 1500.
The point on appeal is not whether the court would have been in error if a jury view had been allowed, but whether the court is in error in disallowing it.
Great Atlantic Pacific Tea Co. v. Davis, 171 So. 551, 552, 177 Miss. 562.
When the motion was made the court was in a position to know whether the court and jury could clearly understand the method of manufacture without the necessity of viewing the plant. This was not a matter of an opinion. The court knew because the evidence as to this had been heard.
64 C.J. 89.
In the case of Coca Cola Bottling Works v. Simpson, 130 So. 479, a verdict for $2500 was upheld, and a verdict for $2500 was upheld in Coca Cola Bottling Co. v. Lyons, 111 So. 305, 145 Miss. 876.
The smallest verdict returned by a jury in a coca cola case that has been appealed was for $500. Perhaps this is the reason counsel undertook to cite no authorities in support of their contention that the verdict in the case at bar is excessive.
J.C. Penney Co. v. Evans, 160 So. 781; Bufkin v. Grisham, 128 So. 565; Biedenharn Candy Co. v. Moore, 186 So. 630; Delta Nehi Bottling Co. v. Lucas, 185 So. 562.
Argued orally by E.L. Snow, for appellant, and by M.V.B. Miller, for appellee.
Appellant bottled and put on the market a bottle of coca cola that had a fly in it, according to the evidence for appellee. Appellee bought the bottle from a retail merchant in Meridian, opened it, and drank part of the contents without knowing the fly was in it. He became nauseated and vomited. He brought this action against appellant to recover damages for the injury, and on trial recovered a judgment in the sum of $750. From that judgment, appellant prosecutes this appeal.
There are only two questions of sufficient seriousness to call for a discussion. They are: (1) Whether the court erred in overruling appellant's motion to have the jury view the plant where the coca cola was bottled by appellant; (2) whether the court should have granted appellant's motion for a new trial upon the ground that the verdict was so excessive as to evince passion and prejudice on the part of the jury. We will consider these questions in the order stated.
Although it might have been helpful to the jury in arriving at a verdict to view the plant and see it in operation, we cannot say with sufficient confidence the court erred in refusing to permit that to be done. The evidence was very full and complete of the precautions taken by appellant to prevent any contamination in the process of bottling the coca cola and putting it upon the market. Section 2066 of the Code of 1930 is the authority for permitting the view. The statute expressly provides that whether a view will be granted is within the discretion of the trial court. In National Box Company v. Bradley, 171 Miss. 15, 154 So. 724, 157 So. 91, 93, 95 A.L.R. 1500, the Court, in construing this statute, held that "the trial court is seldom, if ever, obliged to allow a view of the premises, and it would be a rare case that a refusal by the court so to allow, could successfully be assigned here as error; for the statute expressly places such a refusal in the discretion of the trial court." We are of opinion that the action of the trial court in this respect did not constitute an abuse of discretion.
The appellee, as a witness in his own behalf, testifying in reference to the injury, stated that he did not consult a physician; that for some months prior to the drinking of the bottle of coca cola, he had been in poor health; that a little while after drinking the coca cola, he became nauseated and vomited, he then sat down in the back room of the store and watched a card game going on; he became nauseated again and went out and vomited; and for ten days or two weeks thereafter, he was nauseated. We are of the opinion that $750 is entirely too much compensation for the injury; that it is so excessive as to evince passion or prejudice on the part of the jury. We think half of that amount would have been an ample verdict. Upon that ground alone, the judgment is reversed and the cause remanded for another trial on the issue of damages alone, unless appellee will enter a remittitur to the amount of $375. If that is done, the judgment will stand affirmed for the reduced amount.
Affirmed with remittitur.