Summary
In Coca-Cola Bottling Company v. Cox, 174 Miss. 790, 165 So. 814, which was a suit against the Coca Cola Bottling Company by Cox for a breach of an implied warranty that the coca cola bottled by the company was fit for human consumption.
Summary of this case from Southern Wholesalers, Inc. v. Drug Co.Opinion
No. 32057.
February 10, 1936.
1. VENUE.
Consumer's cause of action for illness resulting from drinking portion of contents of bottle of soda water containing decomposed bodies of roaches held to have "occurred or accrued" in county where drink was purchased and consumed, and not where bottled, so as to authorize suit in county of purchase and consumption (Code 1930, section 495).
2. TRIAL.
Instructions, covering power of nine or more jurors to agree on verdict and return it as verdict of jury, should conform substantially to constitutional language (Constitution 1890, section 31).
APPEAL from the circuit court of Tunica county HON. WM. A. ALCORN, Judge.
Brewer Montgomery, of Clarksdale, for appellant.
The court erred in sustaining the motion of appellee to strike the plea to the jurisdiction of the court. Section 495, Code of 1930, provides that civil actions of which the circuit court has original jurisdiction shall be commenced against a domestic corporation in the county in which said corporation is domiciled or in the county where the cause of action may occur or accrue.
A cause of action on an implied obligation arises where the matters from which the obligation is implied occur.
15 C.J. 736, par. 36; Runkle v. Pullen, 49 Ind. 619, 97 N.E. 956; Hibernia National Bank v. Lacombe, 84 N.Y. 367, 38 Am. Rep. 526; 67 C.J. 94; Kalberg v. Grenier, 8 P.2d 799.
The court erred in refusing to grant change of venue.
We believe it to be the general rule of law that in giving instructions the court should not assume as conclusions of law anything that should be submitted to the jury as a question of fact; nor should it assume as true any issuable fact. The law applicable to the facts should be given, leaving it to the jury to say whether propositions of fact have been established.
Myrick v. Wells, 52 Miss. 149; Baker v. Justice, 41 Miss. 244; Patrick v. Carr, 50 Miss. 199; Soloman v. City Compress Co., 69 Miss. 319, 327, 10 So. 446, 12 So. 339.
The damages awarded appellee are excessive.
A. V. Ry. Co. v. Dennis, 128 Miss. 298, 91 So. 4; Gulfport Mississippi Coast Traction Co. v. Keebler, 130 Miss. 631, 94 So. 795.
Dulaney Bell, of Tunica, for appellee.
The cause of action occurred in Tunica county. The suit was brought by Mrs. Cox in Tunica county against the appellant, a domestic corporation, under authority of section 495 of the Mississippi Code of 1930, Tunica county being the place where her cause of action, or right to sue the appellant, occurred and accrued or, to borrow the words of the United States Supreme Court, the place where the right of action became fixed and the legal liability was incurred.
Dennick v. Railroad Co., 103 U.S. 11, 26 L.Ed. 439; Runkle v. Pullin, 49 Ind. 619, 97 N.E. 956; Kalberg v. Grenier, 8 P.2d 799.
The fact that the appellant did something wrong in Coahoma county connected with the cause of action does not fix that as the place where it arose.
Masonite Corp. v. Burnham, 146 So. 292.
The implied warranty runs with the sale and passes with the title.
Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97.
The instruction complained of is merely a nine juror verdict instruction, authorizing such a verdict if nine or more jurors should believe from a preponderance of the evidence and the instructions of the court that the plaintiff should recover. While the instruction is not in the language of section 2067 of the Mississippi Code of 1930 it seems scarcely open to question but that it correctly states the law.
The verdict was not excessive.
Jackson Coca-Cola Bottling Co. v. Rena, 97 So. 674; F.W. Woolworth Co. v. Volking, 135 Miss. 410, 100 So. 3; Bufkin v. Grisham, 157 Miss. 746, 128 So. 563; Armour Co. v. McMillain, 155 So. 218.
Appellee purchased from a retail dealer in Tunica county, in this state, a bottle of Coca-Cola which had been bottled by appellant in Coahoma county. The proof shows that the bottle contained the decomposed bodies of roaches, and appellee having drunk, at the place of purchase, a portion of the contents of the bottle, was, as a result thereof, made ill. She sued appellant upon the implied warranty appertaining to such cases, the suit being instituted and prosecuted in Tunica county. Appellant moved for a change of venue, on the asserted ground that the cause of action accrued in Coahoma county where the drink was bottled, and not in Tunica county, when and where all control of the bottle and its contents had passed beyond appellant's hands.
There is a diversity of opinion among the authorities upon the precise question, but we think it was ruled against the contention of appellant in Masonite Corporation v. Burnham, 164 Miss. 840, 851, 146 So. 292, 91 A.L.R. 752. There a distinction is made between the cause of the injury and the cause of action. It was said that although the cause of the injury may have had, and did have, its origin in one county, the cause was entirely harmless, and on account of which no action could accrue, until the injury took place, and when that injury occurred in another county, the cause of action, within the meaning of the statute, section 495, Code 1930, occurred or accrued in the latter county.
We think that instructions, covering the power of nine or more jurors to agree on the verdict and return it as the verdict of the jury, should conform substantially to the language of section 31, Constitution 1890, as amended; but upon a critical examination of the instruction complained of in this case, we are unable to declare that the instruction so far departs in substance from the constitutional language as to constitute reversible error, particularly in view of the fact that so far as the record discloses the verdict was unanimous.
The other points raised by appellant have been dealt with in numerous decisions by this court, and we add only that, as applied to this record, we find no reversible error.
Affirmed.