Leatherman v. Coca-Cola Bottling Co.

Full title: LEATHERMAN v. COCA-COLA BOTTLING CO

Court: Springfield Court of Appeals, Missouri

Date published: Jan 19, 1953

254 S.W.2d 436 (Mo. Ct. App. 1953)

Opinion

No. 7131.

January 19, 1953.

APPEAL FROM THE CIRCUIT COURT, BUTLER COUNTY, RANDOLPH H. WEBER, J.

O. A. Tedrick, of Poplar Bluff, for appellant.

Ted M. Henson and Bloodworth Bloodworth, of Poplar Bluff, for respondent.

BLAIR, Judge.

The appellate jurisdiction of this Court is unchallenged, and need not be discussed.

The respondent was plaintiff and the appellant was defendant in the trial court, and they will be so designated in this Court. The case was briefed by both sides; but neither appeared for argument. A transcript, approved by attorneys for plaintiff and defendant, is before us, so that we are well advised as to the facts testified to by the witnesses in the trial court.

The petition was in two counts, in substantially the same language, both asking for actual damages in the sum of $10,000. The defendant asked and the trial court ruled that plaintiff should give security for costs, and plaintiff was granted until August 8, 1950, to file such security for costs. Plaintiff apparently did not give such security for costs on or before the date fixed by the trial court, for, on August 28, 1950, defendant filed a motion to dismiss the case for the failure of plaintiff to give security for costs on the date previously fixed. The trial court passed the motion to dismiss the case until September 12, 1950, on which latter date the plaintiff was permitted to file bond for costs.

Defendant did not complain of error because the trial court extended the time for plaintiff to furnish security for costs. The question for security for costs rests largely in the discretion of the trial court. 15 C.J., loc. cit. 22, and cases; 20 C.J.S., Costs, § 2; Whitsett v. Blumenthal, 63 Mo. 479, loc. cit. 482.

Thereafter the case was continued from time to time until defendant filed its answer to both counts of the petition on November 25, 1950. That answer made certain admissions, as defendant stated in such answer, and on the trial, that it was a Missouri corporation, engaged in the manufacture and distribution of a bottled drink, called "Coca-Cola," and distributed through Payton Haynes, who operated a store on Gardner Street, in the city of Poplar Bluff, Missouri. There is, therefore, no need to discuss proof on those points.

The trial began on March 20, 1952, and plaintiff then testified that, on January 24, 1950, she left her home across the street from the Payton Haynes store, with an aspirin in her hand and entered Haynes' store on Gardner Street, and there secured a bottle of Coca-Cola from the self-service coke box, and opened that bottle right there in the presence of Payton Haynes. She immediately became violently sick and nauseated. She said she discovered part of a dead mouse in the bottle. She said that Payton Haynes took the bottle out of her hands and held it up to the light and said that there was something in the bottle. Appellant said she vomited there again. She said she went home and continued vomiting there and suffered dysentery. The plaintiff went to the hospital for a few days. She could not eat after returning home. It was a month before plaintiff recovered and was able to work. She said that she vomited up mouse hair at one time.

The first witness for plaintiff was Payton Haynes, who operated the store described by plaintiff. Plaintiff's testimony was corroborated by Haynes and we quote his language:

"And she says, this soda tastes awful, and I just don't remember exactly the conversation, but I believe she taken an aspirin, and I said no wonder it tastes bad, you just taken an aspirin. Then she took another drink of it and something touched her lips and she come up and set the soda down and I picked it or else I seen it and it was a dark object in it, and then we took the bottle of soda back to the kitchen where there was a woman working for me, and we took it out and it was a mouse head."

One of plaintiff's witnesses was Edith Spencer, a daughter of plaintiff. This witness corroborated plaintiff as to her illness. As to her sickness and retention in the hospital, plaintiff was corroborated by Janie Owens, and Dr. James W. McPheeters, Jr., the latter a physician at the Lucy Lee Hospital in Poplar Bluff. The latter witness described the treatment of plaintiff at the hospital.

The foregoing was all the evidence given by witnesses called by plaintiff. At the conclusion of her case, defendant offered instructions "A" and "B" in the nature of a demurrer to the evidence under counts 1 and 2 of plaintiff's petition.

The trial court was well justified in refusing to give either of those instructions. There was no question under the case of Crews v. Sikeston Coca-Cola Bottling Company, 240 Mo.App. 993, 225 S.W.2d 812, written by the author of this opinion, in December, 1949, but that plaintiff made a case under either count of her petition. That was for the consideration of the jury.

After the trial court refused to give either instruction "A" or instruction "B", defendant called as a witness Mrs. Barwick, formerly a Mrs. Crawford, who was in the kitchen of the store at the time the plaintiff drank or started to drink the bottle of Coca-Cola, to which plaintiff and Haynes had testified.

It would have been much better for defendant not to have called Mrs. Barwick at all; for her testimony corroborated the story of plaintiff as to the presence of a mouse head in the bottle of Coca-Cola. Among other things, Mrs. Barwick testified as follows:

"Well, I heard Mrs. Leatherman say there is something in this coke, and Mr. Haynes said, we will see what it is, and they brought it back in the kitchen, both of them came back, but I don't know which one had it, and I got a pan and they poured it out into it, and I took it over to the window to see, I first thought it was a berry you know, it was gray, I thought a moulded berry, and I turned it over, and I didn't want to tell Mrs. Leatherman what it was, but she said I have got to know, tell me, and she was standing there like that, and I said, well if you must, it is a mouse's head, and she gagged and went to vomiting."

At the conclusion of the testimony of Mrs. Barwick, plaintiff dismissed count 2 of her petition, and defendant withdrew instruction "B" and moved for a directed verdict on count 1. It is true that count 1 alleged that a whole dead mouse was in the bottle of Coca-Cola, while the testimony of Mrs. Barwick was that she only saw the head of a dead mouse. But the jury was authorized to find that the whole dead mouse had been in the bottle of Coca-Cola since the head of a dead mouse was in the remaining contents of the bottle, which Mrs. Barwick examined, and there is not evidence that a whole dead mouse was not in the bottle a one time. The head, and hair discovered later, tended to show that fact.

At the conclusion of the testimony the jury returned a verdict in the sum of $1,000, and judgment was rendered accordingly. Defendant filed a motion for a new trial. It was unsuccessful in this and it appealed to this Court.

The head of a dead mouse was seen, when the bottle of Coca-Cola was opened, and was indicative of a whole mouse at the time the bottle was closed. We do not doubt that the jury believed that the head of a dead mouse indicated the presence therein of a dead mouse as a whole, when such Coca-Cola bottle was sealed and put on the market.

We do not think it necessary to discuss the cases defendant has cited in its brief, said to hold that a verdict based upon speculation and conjecture cannot stand. There is no question about that rule of law. But the verdict in this case does not rest upon mere conjecture or speculation. The plaintiff not only saw the evidence of a mouse in one of defendant's Coca-Cola bottles; but one of its agents and a woman in the kitchen fully corroborated the plaintiff that a dead mouse was actually in one of defendant's bottles. Nor can defendant be heard to say that plaintiff's story about the presence of a dead mouse in one of its bottles of Coca-Cola is impossible. Whatever anyone might think about the impossibility of plaintiff's story, the jury had the right to accept her story, corroborated as it was by persons who would naturally deny the story, if the presence of the dead mouse in one of defendant's Coca-Cola bottles was impossible. That was for the jury and not for defendant's attorneys, nor this Court, to say.

Defendant urges that we should grant a new trial, because the verdict of the jury is excessive. To support such contention defendant cites Holyfield v. Joplin Coca-Cola Bottling Company, Mo. App., 170 S.W.2d 451, and Norman v. Jefferson City Coca-Cola Bottling Company, Mo.App., 211 S.W.2d 552.

The verdicts in both of those cases were much less than this case; but we have carefully read the cases and do not find that there was any expression in them indicating that the amount of the judgment in a case like this should be deemed excessive.

We do not think the amount of the verdict returned by the jury in this case was either excessive or indicated bias and prejudice on the part of the jury. The verdict of $1,000 is not excessive, in view of the pain, suffering, illness and loss of employment, which the jury had the right to believe were undergone by the plaintiff. If she suffered as she said, the jury was justified in returning the verdict rendered.

We are convinced that the judgment rendered on the verdict of the jury, should be approved.

It is our order that the judgment should be affirmed.

VANDEVENTER, P.J., and McDOWELL, J., concur.