Opinion
7 Div. 465.
March 26, 1940. Rehearing Denied April 16, 1940.
Appeal from Circuit Court, Clay County; W. W. Wallace, Judge.
Action for damages by Calvin Smith against the Alabama Coca Cola Bottling Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
These charges were refused to defendant:
"No. 3. The Court charges the jury that the law requires of the producers of food or drinks sold to the public for human consumption that degree of care which a prudent man would exercise in the selection of food or drink for the consumption of himself and family; and if you find from this evidence that the defendant in this case has exercised that due care and diligence that a prudent man would exercise, then in that event your verdict will be for the defendant.
"No. 5. The Court charges the jury that if you find from this evidence that the drinks manufactured and sold by the defendant to the public for human consumption were inspected by a competent and suitable employee of the defendant before it left the defendant's plant and that it was found to be wholesome and suitable for human consumption, then the defendant discharged the duty that it owed to plaintiff and would not be liable in this action."
Pruet Glass, of Ashland, for appellant.
Charge 3 correctly states the law. Tryme Beverage Co. v. Harris, 217 Ala. 302, 116 So. 147; L. Pizitz D. G. Co. v. Waldrop, 237 Ala. 208, 186 So. 151; Kirkland v. Great A. P. T. Co., 233 Ala. 404, 171 So. 735. Charge 5 also correctly states the law as applied to this case. L. Pizitz D. G. Co. v. Waldrop, supra.
Hardegree Dempsey, of Ashland, for appellee.
If when sealed bottle of beverage is opened it contains foreign unwholesome substance, there is presumption such matter found its way in it on account of negligence of person bottling it, and burden of rebutting that presumption is upon the manufacturer or bottler. Dr. Pepper Co. v. Brittain, 234 Ala. 548, 176 So. 286; Alabama Coca Cola Bot. Co. v. Causey, 28 Ala. App. 115, 180 So. 588; Id., 235 Ala. 570, 180 So. 590. Whether bottled soft drink contained deleterious matter causing injury to purchaser was for the jury. Alabama Coca Cola Bot. Co. v. Causey, supra.
As appellant's competent counsel state in their brief filed here: "This is a suit filed by the appellee against the appellant seeking a thousand dollars damages, alleging that the appellant on the 22nd day of July, 1937, was engaged in the manufacture and bottling of a beverage known as Coca Cola, and that the same was sold and distributed for the purpose of human consumption and that the appellee purchased one of the bottles from Thompson Grocery Company, located in the town of Ashland, Clay County, Alabama, and that the appellee consumed a portion of said bottle, which contained a spider, and that the appellant negligently permitted said spider to be bottled in said Coca Cola and that the appellee became sick from drinking a portion of the contents."
There was a verdict in favor of appellee for the sum of $50, upon which judgment was duly entered.
We shall not deal with the evidence in the case further than to say that that for appellee tended to support the allegations of his complaint; while that for appellant tended to refute same. The issues raised were for the jury.
The law applicable seems to have been succinctly and finally settled and declared by our Supreme Court in its opinion in the case of Dr. Pepper Co. v. Brittain, 234 Ala. 548, 176 So. 286. And, so far as we can observe, the learned trial court charged the jury in this case exactly, and completely, in accord therewith.
This fact, in itself, was ample justification for the refusal of appellant's requested written charges appearing in the record so endorsed. Code 1923, Sec. 9509.
But the above is not to say that said charges should, otherwise, have been given to the jury. Written refused charge 3 was not applicable to the issues in this case; while written refused charge 5 would assume, as a matter of law, that appellant's "inspector," to so designate the employee named therein, could not be guilty of negligence.
The case seems to merit no more detailed discussion of the assignments of error argued and insisted upon here, than that hereinabove set forth. We will state that we have carefully considered each of them, in the light of the general rules of evidence, and in the light of the law as it is established in the Dr. Pepper case hereinabove cited; and as it is not contrary to the law as outlined in each of the following cases cited to us by counsel in the cause, viz., Try-Me Beverage Co. et al. v. Harris, 217 Ala. 302, 116 So. 147; and Alabama Coca-Cola Bottling Co. v. Causey, 28 Ala. App. 115, 180 So. 588, certiorari denied by Supreme Court 235 Ala. 570, 180 So. 590. And, in the light of such law — not thought necessary to be here set out in extenso — it appears to us obvious that there is merit in none of said assignments.
The judgment is affirmed.
Affirmed.