255 F.2d 149 (1st Cir. 1958), 5215, Coca-Cola Bottling Co. of Puerto Rico v. Negron Torres
|Citation:||255 F.2d 149|
|Party Name:||The COCA-COLA BOTTLING COMPANY OF PUERTO RICO, Inc., Defendant, Appellant, v. Hiram NEGRON TORRES, Plaintiff, Appellee.|
|Case Date:||May 07, 1958|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
Rehearing Denied July 7, 1958.
Carmen B. Hernandez, San Juan, P.R., James R. Beverley, San Juan, P.R., on the brief, for appellant.
Appellee submitted on the record appendix without brief or oral argument, by leave of Court.
Before MAGRUDER, Chief Judge, and WOODBURY and STALEY, Circuit Judges.
WOODBURY, Circuit Judge.
The plaintiff-appellee, a citizen of Puerto Rico, brought an action in the Superior Tribunal, Mayaguez Section, sounding in tort for negligence against the defendant-appellant, a Delaware corporation doing business in Puerto Rico, and Crown Beverages, Inc., a Puerto
Rican corporation, to recover damages for personal injuries which he alleged he sustained as a result of his discovery of the putrified body of a small mouse in a bottle of Coca-Cola from which he was drinking. The defendant-appellant, filing an affidavit, which was not controverted, to the effect that Crown Beverages, Inc., had sold all its assets and gone wholly out of business years before in November, 1946, and alleging that the plaintiff had joined it as a defendant only to defeat federal jurisdiction, removed the case to the court below under Title 28 U.S.C. § 1441 et seq. and 48 U.S.C.A. § 864 where it came on for trial without a jury, no timely request therefore having been made. On the basis of the evidence adduced at the trial the court below entered a judgment for the plaintiff in the amount of $850 against the Coca-Cola Bottling Company of Puerto Rico, Inc., Crown Beverages, Inc., having been dropped as a defendant by stipulation, and Coca-Cola Bottling Company thereupon took this appeal.
The District Court's findings support the allegations in the plaintiff's complaint. It found that the defendant was the sole producer, seller and distributor of Coca-Cola in Puerto Rico, that a retail merchant named Sixto Ruiz purchased all the Coca-Cola for his establishment in Sabana Grande, P.R., directly from the defendant through one of its agents, that on September 20, 1952, the plaintiff entered Ruiz' establishment and ordered a bottle of Coca-Cola from one of his employees, that the employee took a bottle of the beverage, part of a consignment received by Ruiz a few days before, from a refrigerator, opened it, and handed it to the plaintiff, and that the plaintiff put the bottle to his lips but after the first swallow complained of the taste of the beverage and then, discovering that the bottle contained the putrid body of a small mouse, immediately became violently sick to the stomach, a condition which lasted for several days and rendered him wholly unable to work for four weeks and unable to work full time for four weeks more.
The complaint is couched in the language of an action sounding in tort for negligence, it being averred that the reason for the putrid body of the mouse in the sealed bottle of Coca-Cola 'is either or both the defendants' guilt, negligence, carelessness, lack of skill, and inconsiderate conduct.' And, although once or twice during the trial mention was made of the possibility of imposing liability on the defendant for breach of implied warranty of fitness for specific use, the case was tried on the tort theory of liability, the defendant introducing extensive evidence of the great care and elaborate precautions taken in preparing and bottling its beverage. The District Court, however, did not consider the question of the defendant's negligence but found it liable for breach of warranty. Relying quite properly upon Castro v. Payco, Inc., 75 P.R.R. 59, 68 (1953), for the proposition that Act No. 72 of April 26, 1940, known as the 'Puerto Rico Food, Drug and Cosmetic Act, ' made...
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