Summary
In Culbertson v. Coca-Cola Bottling Co., 157 S.C. 352, 154 S.E. 424, a yellow jacket was found in a bottle of Coca-Cola. Here again there was evidence of careful inspection but the court said it was a jury question.
Summary of this case from Norfolk Coca-Cola Wks. v. KrausseOpinion
12960
August 14, 1930.
Before SEASE, J. Greenville, 1929. Affirmed.
Action by J.C. Culbertson against Coca-Cola Bottling Co. of Greenville. From a judgment for plaintiff defendant appeals.
Affirmed.
Defendant's fifth, sixth, seventh, and eighth exceptions were as follows:
Exception V. The Court erred in charging plaintiff's fourth request to charge, which was as follows:
"The jury is instructed that the adulteration of drink as defined in this charge, by said drink consisting, if it did, in whole or in part of a filthy, decomposed or putrid animal or vegetable substance, would constitute a violation of the criminal law of South Carolina, and such violation in itself, if there was a violation, would be negligence per se, all questions growing out of the language of this instruction to be left to the jury."
SPECIFICATIONS(a) There was no evidence of a violation of a section of the criminal law, under the facts of this case, the law, as charged, was not applicable.
(b) To make the act criminal it is necessary to establish knowledge, willfulness or criminal negligence, and there was no evidence of knowledge, willfulness or criminal negligence in this case.
Exception VI. The Court erred in charging plaintiff's fifth request to charge, which was as follows:
"If a manufacturer of a food product, or a bottler of soft drinks, disobeys the prohibition, or neglects to perform the duty imposed by a pure food statute, all of which questions are for the jury, negligence may be implied from such violation or neglect, if any, and he is liable for injuries resulting from the unwholesomeness of such food or drink regardless of his knowledge of its unwholesomeness."
SPECIFICATIONS(a) There was no evidence of a violation of a section of the criminal law, and under the facts of this case, the law, as charged, was not applicable.
(b) To make the act criminal it is necessary to establish knowledge, willfulness or criminal negligence, and there was no evidence of knowledge, willfulness or criminal negligence in this case.
Exception VII. The Court erred in charging plaintiff's sixth request to charge, which was as follows:
"The jury is charged that the defendant was bound to know whether the article, which was sold to be retailed to customers of the purchaser, if such was the fact, was sound, wholesome, and complied with the statute."
SPECIFICATIONS(a) This charge made the defendant a guarantor and required more than the law requires, to-wit, ordinary care.
(b) The law, as charged in this request, made the defendant liable regardless of the degree of care which it had used.
Exception VIII. The Court erred in charging plaintiff's tenth request to charge, which was as follows:
"The degree of care required of a manufacturer or dealer in human food for immediate consumption is much greater by reason of the fearful consequences which may result from what could be slight negligence in manufacturing or selling food for animals. In the former a higher degree of care should be required than in manufacturing or selling ordinary articles of commerce. A manufacturer or dealer who puts human food upon the market for sale or for immediate consumption does so upon an implied representation that it is wholesome for human consumption. Practically he must know it is fit, or take the consequences if it proves destructive."
SPECIFICATIONS(a) This language does not contain a correct statement of the law.
(b) It is a charge upon the facts of the case in violation of Article V, Section 26 of the Constitution of South Carolina.
(c) It is argumentative in favor of the plaintiff and was prejudicial to the defendant.
(d) The law, as charged, makes the defendant responsible in damages for unavoidable accidents and makes it a guarantor.
Mr. C. Granville Wyche, for appellant.
Messrs. Plumer C. Cothran and J. Frank Eppes, for respondent, cite: Judgment will not be reversed if there is any admissible and relevant testimony of substantial probative value tending to establish allegations of complaint: 143 S.C. 226; 148 S.C. 69; 141 S.C. 453. Mistake of physician will not be imputed to patient: 84 Ill., 195; 112 N Y, 643; 66 N.Y., 50; 57 N.Y., 849; 115 S.C. 177; 114 S.E., 761. Negligence per se: 140 S.C. 124; 108 S.C. 390. Point not raised on trial not available on appeal: 142 S.C. 286. Pure food statutes: 1 Code 1922, Sec. 398; 119 N.W., 428; Where wholesaler sells to retailer article rendered inherently dangerous by act of vendor and dangerous quality being undisclosed subsequent sale by retailer will not avoid wholesaler's liability: 10 S.E., 118; 106 Mass. 193; 6 N.Y., 397; 79 Pa. St., 493; 31 S.E., 190; L.R., 5 Ex. Ch. 1. Degree of care required: 1 Code 1922, Sec. 398; 26 C.J., 784-5; 119 N.W., 428; 117 S.W. 80; 144 S.W., 202; 176 N.W., 382; 80 So., 734; 135 Pac., 633. Implied warranty: 117 S.C. 140. Manifest error in charge should be corrected at time: 146 S.C. 209; 148 S.C. 512; 151 S.C. 280.
August 14, 1930. The opinion of the Court was delivered by
In his complaint, the plaintiff alleged that the defendant, engaged in the business of manufacturing, bottling, selling, and distributing soft drinks, including coca-cola, sold a certain bottle of coca-cola to the commissary at the disposal plant at Parkins' old mill, for the purpose of resale, which coca-cola was represented by the defendant as a harmless, healthful, and invigorating drink fit for beverage purposes; that the plaintiff purchased the particular bottle of coca-cola for drinking purposes, and, in drinking the same, drank a yellow jacket, a poisonous insect, contained in the beverage, which made him sick in body and in mind, caused him to have violent, terrific, and excruciating aches and pains, from which he suffered much, and on account thereof he was confined to his home and bed for upwards of two days, during which time he underwent great physical and mental agony, all to his serious detriment and damage; that the introduction of the yellow jacket into the bottle of coca-cola was negligent, willful, and wanton, in that the defendant violated its duty to properly bottle the said beverage, and did not properly inspect the same before sending it out, and that it failed to properly inspect its syrup, carbonated water, and bottling machines used in manufacturing and bottling said coca-cola. Plaintiff asked for damages in the sum of $10,000.00.
While admitting its corporate existence and being engaged in the business of bottling beverages, the defendant denied all the other allegations of the complaint.
The trial in the Court of Common Pleas for Greenville County before his Honor, Circuit Judge Sease, and a jury, resulted in a verdict and judgment in favor of the plaintiff for the sum of $200.00. From the result, the defendant has appealed.
The appellant, in its second exception, charges error on the part of the Circuit Judge in refusing to direct a verdict in its favor, on the ground that there was no evidence to show the appellant sold the particular bottle of coca-cola, alleged to have been used by the respondent. Mr. Cunningham, a witness for the respondent, testified that he had some connection with the commissary, being paymaster for Tucker Laxton, who operated the same; that he paid the bills to the appellant for coca-cola sold by it to the commissary; while coca-cola had been purchased from other distributors, at the time of the sale of the bottle to the respondent, the only coca-cola on hand was that purchased for the commissary from the appellant; and that he saw the appellant's truck delivering the goods to the commissary. Under the well-recognized rule that if there is any competent evidence going to establish material issues, the trial Judge is required to submit the case to the jury, we think the evidence was sufficient to sustain the refusal to direct a verdict on the ground stated.
Appellant's fourth exception complains at the refusal of the presiding Judge to direct a verdict in its favor, on the ground that the undisputed evidence established that the alleged injuries of the respondent were not caused by swallowing the yellow jacket. The respondent testified that as soon as he drank the coca-cola he became sick and suffered pain; that he announced that he swallowed a fly or something, and later the yellow jacket came back. The respondent admitted that on account of his condition he took a drink of whiskey, and appellant seems to think that beverage caused the respondent's illness. The whiskey, according to the respondent, however, was not taken until after the yellow jacket had been emitted, and for the purpose of relieving the condition produced by swallowing the insect. While the whiskey, and not the yellow jacket, may have made the respondent sick, or the whiskey may have aggravated the illness he already had, these questions were all for the jury, and the presiding Judge was correct in submitting them for their determination.
The fifth, sixth, seventh, and eighth exceptions complain of errors in the giving of certain instructions to the jury. (Let the questioned charges be reported.) In addition to the complaint that the jury were not correctly charged as to the legal principals involved in the cause, the appellant urges that some of the instructions violated the constitutional provisions as to a charge on facts, and that they were argumentative in favor of the respondent's cause. In passing upon the instructions contended to have been erroneous, we, of course, must consider them with the whole charge of the trial Judge. It is our opinion that the instructions, when so considered, stated correctly the principles of law applicable to the issues involved in the case. We do not deem it necessary to go into any discussion, for this case is controlled mainly by the opinion of this Court in the case of Tate v. Mauldin, 157 S.C. 392, 154 S.E., 431, the opinion in which is filed along with this opinion. Under the authority of that case, the exceptions as to the charge must be overruled.
The remaining exceptions, Nos. 1 and 3, relate to the refusal to direct a verdict in appellant's favor, the first on the ground that there was no evidence of negligence, and the third that the undisputed evidence showed that the appellant had exercised due care in bottling the coca-cola. The facts of this case are very much similar to those in the case of Tate v. Mauldin, supra. Too, as in that case, the jury inspected the bottling plant of the defendant bottling company. Agreeable to our views in the last-mentioned case, we think the evidence was entirely sufficient to require that the jury pass upon the facts.
It is the judgment of this Court that the judgment below be affirmed.
MESSRS. JUSTICES COTHRAN STABLER and CARTER, and MR. ACTING ASSOCIATE JUSTICE MENDEL L. SMITH concur.