269 A.2d 117 (Me. 1970), Wallace v. Coca-Cola Bottling Plants, Inc.

Citation269 A.2d 117
Opinion JudgePOMEROY,
Party NameMalcolm H. WALLACE v. The COCA-COLA BOTTLING PLANTS, INC.
AttorneyBerman, Berman & Simmons, by Jack H. Simmons, Lewiston, for plaintiff. Marshall, Raymond & Beliveau, by John G. Marshall, Lewiston, for defendant.
Judge PanelBefore WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.
Case DateSeptember 17, 1970
CourtSupreme Judicial Court of Maine

Page 117

269 A.2d 117 (Me. 1970)

Malcolm H. WALLACE

v.

The COCA-COLA BOTTLING PLANTS, INC.

Supreme Judicial Court of Maine.

September 17, 1970

Page 118

Berman, Berman & Simmons, by Jack H. Simmons, Lewiston, for plaintiff.

Marshall, Raymond & Beliveau, by John G. Marshall, Lewiston, for defendant.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.

POMEROY, Justice.

At the conclusion of a trial, an Androscoggin County jury awarded Plaintiff $2,000 damages against the Defendant.

The complaint, the filing of which commenced this action, alleged Defendant was liable to the Plaintiff because of, (a) a breach of warranty and (b) negligence. The case was submitted to the jury only on the issue of negligence, the breach of warranty count having been removed from the jury's consideration by the Court on Defendant's motion. The Plaintiff has not appealed from this ruling.

In the posture in which the case is before us for review, we must accept the evidence in the light most favorable to the Plaintiff. Scammon v. City of Saco, Me., 247 A.2d 108.

We conclude the jury was justified in finding from the evidence.

On December 23, 1966, the Plaintiff entered a store known as Lindley's in Canton, Maine. After ordering a pizza he went to the back of the store in the company of a friend and there removed a Coca-Cola bottle from a cooler and opened it. The cooler was not coin-operated and contained not only Coca-Cola bottles but other bottled products as well. Customers in the store usually served themselves from the cooler, a practice having the owner's approval.

After opening the bottle, Plaintiff placed it to his lips and drank from it. While doing so, a foreign object came in contact with his lips and tongue. He thereupon called the owner of the store to the cooler and in her presence poured the remaining contents of the bottle into a cup. It was then discovered the foreign object was an unpackaged prophylactic. When the bottle was opened it reacted normally, 'the cap came off as it normally would.' Upon opening the bottle the Plaintiff heard a sound, 'kind of a fizzle like a bottle does when it opens, the carbonation I presume.' The Plaintiff became ill after he returned home and began to think about his experience.

The jury was justified in believing from the evidence that the illness persisted for some time and caused the Plaintiff to be absent from his work. The Coca-Cola bottle had been purchased from the Defendant.

The Defendant says in its Points of Appeal:

'1. The Court erred in admitting certain testimony on the part of the plaintiff as to the cause of his sickness or illness which the plaintiff claimed followed his consuming some of the contents of the bottle of Coca-Cola.

'2. It was error to submit the matter to the jury because there was no evidence from which it could be inferred that the defendant was negligent and no evidence that there was any foreign matter in the bottle of Coca-Cola when it was delivered to the store where it was allegedly purchased.

Page 119

'3. It was error on the part of the Court to deny the defendant's motion for a new trial.

'4. It was erroneous on the part of the Court to submit the matter to the jury on the issue of damages because there was no injury to the plaintiff, that is no physical injury that could be compensated for under the rules of our law.

'5. There was nothing in the plaintiff's evidence to show that there was any contamination or deleterious substance that rendered the contents of the bottle Coca-Cola allegedly purchased by the plaintiff that was harmful to him or to any reasonable person. There was no evidence that the contents of the bottle were injurious to any human.'

We start our discussion, as we must in view of the jury's finding, from the premise that the bottle in which the foreign object was found was purchased from the Defendant and at the time of the purchase by Plaintiff there was a foreign object in it.

This having been established, the only possible conclusions to be reached are, (a) the foreign object was in the bottle when it left the Defendant's plant and was delivered to the storekeeper, or (b) there was tampering with the bottle after it left the Defendant's plant and before it was...

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49 practice notes
  • 484 A.2d 239 (Conn.App. 1984), 2433, Leabo v. Leninski
    • United States
    • Connecticut Appellate Court of Connecticut
    • November 27, 1984
    ...the extent of mental suffering by the same standard of proof as physical suffering. See Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117, 121 (Me.1970). In today's world, both supply equal grist for the [trial court's] mill, based on '[t]he ordinary knowledge acquired from everyday ......
  • 420 So.2d 348 (Fla.App. 5 Dist. 1982), 81-1309, Champion v. Gray
    • United States
    • Florida Florida Court of Appeals Fifth District
    • October 6, 1982
    ...214 Va. 27, 197 S.E.2d 214 (1973); Whetham v. Bismarck Hospital, 197 N.W.2d 678 (N.D.1972); Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (Me.1970), see also Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433 (Me.1982) (no physical injury but recovery allowed, thus overruling ......
  • 408 A.2d 728 (Md. 1979), 14, Vance v. Vance
    • United States
    • Maryland Court of Appeals of Maryland
    • December 12, 1979
    ...distress even absent physical injury, See Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974); Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (Me.1970); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). [5] Although the record suggests that Muriel may have suffered from emotional di......
  • 313 A.2d 913 (Me. 1973), McNally v. Nicholson Mfg. Co.
    • United States
    • Maine Supreme Judicial Court of Maine
    • November 30, 1973
    ...'. . . has not approved the use of the phrase 'strict liability', . . .', its analysis in Wallace v. Coca-Cola Bottling Plants, Inc., Me., 269 A.2d 117 (1970), concerning events in the year 1966, '. . . compels the conclusion' that Count III, containing allegations adequate to meet the spec......
  • Request a trial to view additional results
48 cases
  • 484 A.2d 239 (Conn.App. 1984), 2433, Leabo v. Leninski
    • United States
    • Connecticut Appellate Court of Connecticut
    • November 27, 1984
    ...the extent of mental suffering by the same standard of proof as physical suffering. See Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117, 121 (Me.1970). In today's world, both supply equal grist for the [trial court's] mill, based on '[t]he ordinary knowledge acquired from everyday ......
  • 420 So.2d 348 (Fla.App. 5 Dist. 1982), 81-1309, Champion v. Gray
    • United States
    • Florida Florida Court of Appeals Fifth District
    • October 6, 1982
    ...214 Va. 27, 197 S.E.2d 214 (1973); Whetham v. Bismarck Hospital, 197 N.W.2d 678 (N.D.1972); Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (Me.1970), see also Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433 (Me.1982) (no physical injury but recovery allowed, thus overruling ......
  • 408 A.2d 728 (Md. 1979), 14, Vance v. Vance
    • United States
    • Maryland Court of Appeals of Maryland
    • December 12, 1979
    ...distress even absent physical injury, See Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974); Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (Me.1970); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). [5] Although the record suggests that Muriel may have suffered from emotional di......
  • 313 A.2d 913 (Me. 1973), McNally v. Nicholson Mfg. Co.
    • United States
    • Maine Supreme Judicial Court of Maine
    • November 30, 1973
    ...'. . . has not approved the use of the phrase 'strict liability', . . .', its analysis in Wallace v. Coca-Cola Bottling Plants, Inc., Me., 269 A.2d 117 (1970), concerning events in the year 1966, '. . . compels the conclusion' that Count III, containing allegations adequate to meet the spec......
  • Request a trial to view additional results
1 books & journal articles
  • Ridicule or recourse: parents falsely accused of past sexual abuse fight back.
    • United States
    • Journal of Law and Health Vol. 11 Nbr. 1-2, March 1996
    • March 22, 1996
    ...of Cal., 17 Cal.3d 425 (1976). (155) 616 P.2d at 817. (156) Id. (157) Id. (158) Id. (159) Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (Me. 1970). (160) Id. at 121. (161) Molien, 616 P.2d at 820. (162) Montoya, 761 P.2d at 288. (163) Id. at 290. (164) Id. at 286. (165) Id. (166)......