Amarillo Coca-Cola Bottling Co. v. Loudder
| Decision Date | 08 December 1947 |
| Docket Number | No. 5829.,5829. |
| Citation | 207 S.W.2d 632 |
| Parties | AMARILLO COCA-COLA BOTTLING CO., Inc. v. LOUDDER et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Randall County; Henry S. Bishop, Judge.
Action by Lois Loudder and husband against Amarillo Coca-Cola Bottling Company, Inc., for personal injuries allegedly sustained from drinking an alleged contaminated beverage. From an order overruling defendant's plea of privilege, defendant appeals.
Affirmed.
Gibson, Ochsner & Little, of Amarillo (Sterling Kinney, of Amarillo, of counsel), for appellant.
Sanders, Scott, Saunders & Smith, of Amarillo, and J. D. Barker, of Canyon, for appellees.
Appellees, Lois Loudder and her husband, J. D. Loudder, instituted this action against the appellant, Amarillo Coca-Cola Bottling Company, Inc., in the District Court of Randall County to recover damages for personal injuries sustained by Mrs. Loudder alleged to have resulted from drinking a portion of the contents of a bottle of coca cola which was contaminated and polluted by the decomposed body of a mouse. Mrs. Loudder purchased several bottles of coca cola from the Houston Pritchard Service Station at Canyon on the afternoon of February 22, 1947. She took them to their farm home in Randall County and placed them in the refrigerator where they remained until the afternoon of the next day when her husband opened two of the bottles, the contents of one of which was consumed by him and he handed the other to Mrs. Loudder who drank a portion of its contents. Observing something unusual as to its flavor, she set it aside and drank the contents of another bottle. About an hour or so later she examined the first bottle and discovered in it the decomposed and putrid body of a mouse.
The appellant is a corporation with its office and principal place of business located at Amarillo in Potter County and it filed and urged a plea of privilege to be sued in the county of its residence. Appellees duly controverted the plea of privilege and invoked the provisions of subdivision 23 of Article 1995, R.S.C.1925, Vernon's Ann.Civ.St. art. 1995, subd. 23. Upon a hearing before the trial judge, the plea was overruled. Appellant duly excepted to the order overruling its plea, perfected an appeal therefrom, and presents the case to this court for review. It asserts the court erred in overruling its plea of privilege because, first, the appellees failed to establish a cause of action against it, as required by Article 2007, Vernon's Annotated Civil Statutes, and, secondly, because there was no showing in the evidence that the mouse was not placed in the bottle after it left the hands of the appellant.
Appellant introduced no testimony. The uncontradicted evidence showed that Houston Pritchard was engaged in operating a filling station at Canyon in Randall County, and that, in connection therewith, he sold bottled coca cola and also maintained a small stock of groceries. All of the coca cola purchased and handled by him was purchased from the appellant and deliveries were made by it to the filling station at Canyon twice each week. When the beverage was delivered at the filling station, it was placed in a small room in the rear of the building, the outside door of which was closed and locked at all times. The bottles purchased by Mrs. Loudder were procured from this small room and delivered to her by one of Pritchard's daughters who occasionally worked with her father at the station. Houston Pritchard testified that when the bottles of coca cola were sold, they were in the same condition as they were when he received them from the appellant. Appellee, J. D. Loudder, opened the contaminated bottle by the use of a bottle-opener with which he pried the cap and he testified that he noticed nothing wrong with it. It was further shown that Mrs. Loudder became violently ill and remained so for a number of days, during which she was treated by a physician, and it is not controverted that her illness was the direct result of the consumption by her of the contaminated contents of the coca cola bottle.
It is now the settled policy of the law of this state that, to protect the health and lives of the public, a manufacturer or vendor of foods and beverages is liable to consumers thereof for injuries caused by contaminated or...
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...have followed the Decker holding. Coca-Cola Bottling Co. v. Burgess, Tex.Civ.App. 1946, 195 S.W. 2d 379; Amarillo Coca-Cola Bottling Co. v. Loudder, Tex.Civ.App. 1947, 207 S.W. 2d 632; Sweeney v. Cain, Tex.Civ.App. 1951, 243 S.W.2d 874 (no writ history); Campbell Soup Co. v. Ryan, Tex. Civ.......
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