Opinion
No. 40989.
January 19, 1959.
1. Food — unwholesome beverage — negligence — breach of warranty — burden of proof on consumer to show bottling company manufactured soft drink allegedly containing decomposed roach.
In action by consumer against bottling company for injuries allegedly caused by alleged decomposed roach in bottle of soft drink, burden was on consumer to show that company manufactured the soft drink, whether declaration was based on negligence or on breach of warranty, and there being no proof whatsoever as to the manufacture of the beverage, consumer could not recover.
Headnote as approved by Hall, J.
APPEAL from the Circuit Court of Harrison County; LESLIE B. GRANT, J.
Mize, Thompson Mize, Gulfport, for appellant.
I. No negligence was shown against the defendant, and the doctrine of res ipsa loquitur cannot be applied in this case. Cudahy Packing Co. v. Baskin, 170 Miss. 834, 155 So. 217; Cudahy Packing Co. v. McPhail, 170 Miss. 508, 155 So. 163; Goodwin v. Misticos, 207 Miss. 361, 42 So.2d 397; Jackson Coca Cola Bottling Co. v. Grubbs, 143 Miss. 590, 108 So. 732; Jordan v. Coca Cola Bottling Co. of Utah, 117 Utah 578, 52 A.L.R. 2d 108; Neely v. Jackson Coca Cola Co., 183 Miss. 635, 184 So. 467; Peerless Supply Co. v. Jeter, 218 Miss. 61, 65 So.2d 240; Pongetti v. Spraggins, 215 Miss. 397, 61 So.2d 158, 34 A.L.R. 2d 1277; Southern Railway Co. v. Laning, 83 Miss. 161, 35 So. 417; Wheeler v. Laurel Bottling Works, 111 Miss. 442, 71 So. 743, L.R.A. 1916E 1074; Yazoo M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274; 38 Am. Jur., Sec. 295 p. 989; 65 C.J.S., Negligence, Sec. 220(2) p. 987.
II. The failure to use a doctor as a witness, and the failure of the Court to grant an instruction with reference to the effect of the plaintiff's not calling a doctor, constitutes reversible error. Killings v. Metropolitan Life Ins. Co., 187 Miss. 265, 192 So. 577; Robinson v. Haydel, 177 Miss. 233, 171 So. 7.
III. The verdict of the jury and the judgment are excessive. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Boyle Gin Co. v. W.F. Moody Co., 188 Miss. 44, 193 So. 918; Dixie Stockyard v. Ferguson, 192 Miss. 166, 4 So.2d 724; Hattiesburg Coca Cola Bottling Co. v. Cawley (Miss.), 2 So.2d 143; Jackson Coca Cola Bottling Co. v. Renna (Miss.), 97 So. 674; Jones v. Dixie Greyhound Lines, 211 Miss. 34, 50 So.2d 902; Meridian Coca Cola Bottling Co. v. Illges, 187 Miss. 27, 191 So. 817; Palmer v. Gardner, 226 Miss. 123, 83 So.2d 800; R.J. Reynolds Tobacco Co. v. Loftin (Miss.), 99 So. 13; Rawlings v. Inglebritzen, 211 Miss. 760, 52 So.2d 426.
Morse Morse, Gulfport, for appellee.
I. In determining whether the defendant is entitled to a directed verdict the evidence must be treated as proving every fact favorable to the plaintiff's case which is established either directly or by reasonable inference. Grice v. Central Electric Power Assn., 230 Miss. 437, 92 So.2d 837.
II. The jury was warranted in concluding that the particular bottle involved was manufactured, distributed and sold under the control of the defendant, that a roach was negligently bottled in the particular article involved, that the plaintiff drank some of the contaminated coke, and was proximately damaged thereby. Coca Cola Bottling Works, Inc. of Columbus v. Petty, 190 Miss. 631, 200 So. 128.
III. The verdict for $1500.00 which was remitted to $1000.00 is not excessive. Coca Cola Bottling Works, Inc. of Columbus v. Petty, supra.
The appellant appeals from a judgment against it in favor of the appellee for damages for a decomposed roach in a bottle of Coca-Cola.
(Hn 1) The declaration was not based upon a breach of warranty but upon negligence. But, in either case, the burden was upon appellee to show that the appellant manufactured the beverage in question.
The appellee produced no proof whatsoever as to the manufacturer of the beverage and, consequently, the requested peremptory instruction should have been granted.
Therefore, the judgment of the lower court will have to be reversed and a judgment entered here in favor of the appellant.
Reversed and judgment here for appellant.
Roberds, P.J., and Arrington, Ethridge, and Gillespie, JJ., concur.