Coca-Cola Bottling Co. v. Burgess

• Decision Date: 24 May 1946
• Docket Number: No. 14761.,14761.
• Citation: 195 S.W.2d 379
• Parties: COCA-COLA BOTTLING CO. OF FORT WORTH v. BURGESS.
• Court: Texas Court of Appeals

Page 379

195 S.W.2d 379

COCA-COLA BOTTLING CO. OF FORT WORTH v. BURGESS.

No. 14761.

Court of Civil Appeals of Texas. Fort Worth.

May 24, 1946.

Rehearing Denied June 28, 1946.

Appeal from Tarrant County Court; Thomas J. Renfro, Judge.

Suit by T. J. Burgess against the Coca-Cola Bottling Company of Fort Worth for damages for injuries allegedly sustained by plaintiff from drinking beverage from a bottle allegedly containing a dead and partially decomposed mouse. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Cantey, Hanger, McMahon, McKnight & Johnson, of Fort Worth, for appellant.

Callaway, Wade & Davis, of Fort Worth, for appellee.

SPEER, Justice.

Plaintiff T. J. Burgess sued defendant Coca-Cola Bottling Company, a corporation, for damages alleged to have been sustained by reason of a dead and partially decomposed mouse being present in a bottle of Coca-Cola manufactured by defendant, and procured by plaintiff, from which he drank a portion of the beverage before discovering the carcass of the rodent in the bottle.

The trial petition sets out a cause of action against defendant based upon the implied warranty by defendant to plaintiff and the public in general, that the contents of the bottle was clean, wholesome and fit for human consumption as a drink and as nourishment; that it was not contaminated but free from poisonous, deleterious and injurious substances. Allegations were made, in substance, that plaintiff drank from the bottle a portion of its contents and became sick and extremely nauseated which produced frequent spells of vomiting; that as a result of said drinking he suffered with nausea and an upset stomach for a year thereafter. There are no allegations of negligence by defendant. Since there are no criticisms of the pleadings, we need not set them out more fully. In so far as this appeal is concerned, defendant relied upon the general denial.

Trial was to a jury. At the conclusion of taking testimony, defendant moved for an instructed verdict, for reasons therein set out. The motion was overruled, and the ruling is the basis for assigned error. Special issues were submitted to and answered by the jury; the verdict was in all respects favorable to the plaintiff. Judgment for $500 was entered on the verdict, from which defendant has appealed.

Points of error one and two complain because the court refused to instruct a verdict for defendant. We shall first notice point two; it is in substance: that the court erred in refusing the peremptory instruction because the plaintiff failed to make out a case, in that no negligence by defendant was either pleaded or proved, especially so when the defendant assumed the burden of that issue and proved beyond a reasonable doubt that the mouse in question could not have gotten into the Coca-Cola bottle while in defendant's possession.

Plaintiff did not plead nor rely upon negligence for recovery in the case. His recovery depended upon an implied warranty by defendant that the beverage was good and wholesome for human consumption. If plaintiff established his case upon the theory upon which he thus relied, he was under no obligation to prove negligence by defendant, and the latter could not defeat liability by proving that it was not negligent. It is now the settled law in this state, that in an action pleaded as this one was "Liability * * * is not based on negligence, nor on a breach of the usual implied contractual warranty, but on the broad principle of public policy to protect human health and life." Jacob E. Decker & Sons, Inc., v. Capps, 139 Tex. 609, 164 S.W.2d 828, 829, 142 A.L.R. 1479.

First point of error complains because the court refused to give defendant's request for an instructed verdict based upon the contention that plaintiff had failed to establish recoverable damages, in that there was no evidence of toxic poisoning and no evidence of "damage or harm to the physical structure of the plaintiff's body."

If we properly interpret defendant's contention under this point, it is in substance that the evidence conclusively shows that such physical pain and mental suffering as plaintiff sustained were not produced from drinking the contaminated beverage, but from having seen the dead and partially decomposed mouse in the bottle, after he had swallowed parts of its content, and therefore even the implied warranty of defendant that the beverage was good, clean and wholesome to drink, cannot be construed to mean what defendant had impliedly warranted the beverage to be good, clean and wholesome to look at.

If the exceptional niceties of the distinction sought to be drawn were all that were involved here we might go along with counsel. The effect upon the "physical structure" of one's body produced by the finer sensibilities of his emotions is not essentially different from that produced by fright and such things. Unaccompanied nor followed by bodily injury, the victim may not recover compensation for fright, or imaginary injuries when they do not exist. In support of these contentions defendant cites several cases, and could have cited many more. However the broad assertion of no liability in such circumstances is subject to many elements entering into the situation. The courts of this and other jurisdictions have for a century wrestled with the age-old proposition. The latest expressions may be found in Houston Electric Co. v. Dorsett, Tex.Sup., 194 S.W. 2d 546, 548, where Judge Sharp wrote well on the subject based upon the observation, "We are not here concerned with an action based merely on fright, neither accompanied nor followed by bodily injury."

Before discussing the testimony relied upon by defendant in support of its contention that it should have had an instructed verdict, we deem it appropriate to make some observations applicable to the duty of a trial court to give a summary instruction, when a jury trial has been demanded.

It is the recognized function of the jury to pass upon and determine the facts when the evidence is conflicting; it also determines the credibility of the witnesses and the weight to be given their testimony. It is equally well settled that a trial court should direct a verdict where the facts are well pleaded and are indisputably proved, leaving no issue for the jury. A verdict should be directed when there is no evidence to support the material issues (relied upon by the opposing party), when the jury can come to no other correct conclusion, when the evidence is all on one side, or whenever there is a pure question of law involved. 41 Tex.Jur. 935, 936, sec. 166. Unless these or some other recognized principles are involved, no peremptory instruction should be given. Some of the tests prescribed by our jurisprudence governing the question of instructed verdicts are:

To authorize the court to take the case from the jury or to instruct a verdict, the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusions to be drawn from it. 41 Tex.Jur. 939, secs. 169, 170; Lee v. International & G. N. Ry. Co., 89 Tex. 583, 36 S.W. 63. To hold that a peremptory charge should be given the court must find and believe that the evidence in the case "provided no reasonable basis for opposite conclusions by ordinary minds." Woods v. Townsend, Tex.Sup., 192 S.W.2d 884, 886. "If there is any material issue of fact arising from the evidence it must be submitted, and it is error to direct a verdict, the test of such issue being whether there is any probative evidence, which, considered by itself and accepted as true with inferences arising therefrom, would call for a finding of fact and a verdict accordingly." 41 Tex. Jur. 939 sec. 168. If there is any evidence of probative value it must be construed in the light most favorable to the adverse party and against the motion for an instructed verdict. 41 Tex.Jur. 941 sec. 170; City of Houston v. Chapman, 132 Tex. 443, 123 S.W.2d 652; McAfee v. Travis Gas...