Opinion
Filed 17 March, 1954.
Food 6c — In an action to recover damages resulting to plaintiff from a foreign and deleterious substance found in a bottled drink, failure of evidence that the bottled drink was manufactured and marketed by the defendant compels nonsuit.
APPEAL by plaintiff from Paul, Special J., January Term, 1954, JOHNSTON. Affirmed.
E. R. Temple, Jr., for plaintiff appellant.
Young Taylor and Shepard Wood for defendant appellee.
Civil action to recover compensation for personal injuries.
On 25 December 1951 plaintiff purchased a bottle of coca-cola at Stewart's combination store and filling station. After drinking a part of the Coca-Cola, he discovered the bottle contained a partly decomposed mouse. He became nauseated, and he testified he still suffers ill effects as a result thereof.
At the conclusion of plaintiff's evidence in chief, the court, on motion of defendant, entered judgment of involuntary nonsuit, and plaintiff appealed.
To make out a case for the jury, the plaintiff must prove that the Coca-Cola he drank was manufactured and marketed by this defendant for human consumption. This record is devoid of any evidence to that effect. That the Coca-Cola was purchased from "the Coca-Cola man from Dunn," and the bottle had "Dunn" written on the bottom will not suffice. Indeed, the operator of the delivery truck from defendant's plant, testifying for plaintiff, stated he did not deliver any Coca-Cola to Stewart's place of business. In the absence of proof of this essential element of plaintiff's cause of action, the judgment in the court below must be
Affirmed.