Salisbury Coca Cola Bottling Co. v. Lowe

• Decision Date: 22 February 1939
• Docket Number: 12.
• Parties: SALISBURY COCA COLA BOTTLING CO. v. LOWE.
• Court: Maryland Court of Appeals

4 A.2d 440

176 Md. 230

SALISBURY COCA COLA BOTTLING CO. v. LOWE.

No. 12.

Court of Appeals of Maryland

February 22, 1939

Appeal from Circuit Court, Dorchester County; T. Sangston Insley Judge.

Action by Robert L. Lowe against the Salisbury Coca Cola Bottling Company for injuries allegedly sustained by drinking bottled beverage containing foreign matter. From an adverse judgment the defendant appeals.

Reversed and remanded for new trial.

Zanvyl Krieger, of Baltimore (Aiken & Krieger, of Baltimore, and V Calvin Trice, of Cambridge, on the brief), for appellant.

Emerson C. Harrington, Jr., of Cambridge, and Stanley G. Robins, of Salisbury (John B. Robins, of Crisfield, and Long & Robins, of Salisbury, on the brief), for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

MITCHELL Judge.

On January 14, 1937, Robert L. Lowe purchased at the oyster shucking establishment of Ralph and Thomas Riggin, in which he was then employed as an oyster shucker, a bottle of beverage familiarly known as Coca Cola. From it he drink three swallows of its contents, resulting in the alleged injury, which forms the basis of the suit from which this appeal arises.

Detailing the circumstances of his purchase and consumption of a part of the contents of the bottle, the appellee testified that on the morning of the happening of the incident he reported for his regular duties, and there being no work for him to perform on that day, he later went to the second floor of the oyster house, where his employers conducted a restaurant; that one Willie Riggin was then in charge of the restaurant and three other persons were present, when he and two of them decided to purchase three bottles of Coca Cola; that he was told by Willie Riggin to get the three bottles of Coca Cola from a carrier in which they were contained; that the carrier was one of five or six filled with Coca Cola bottles and piled upon each other in a closet under a stairway in the restaurant and that the bottles were taken by him from a carrier of the Salisbury Coca Cola Bottling Company. His testimony then continues as follows: 'I opened my Coca Cola on an opener which was on a post. The Coca Cola had a lot of gas like any other Coca Cola, and I put it to my mouth and took two swallows. I had another swallow in my mouth and I wanted to spit it out, but I swallowed that too. As soon as I drank it, my stomach made a funny noise; they all heard it. I felt just like my stomach had turned over. The perspiration bursted out on me and I thought I was poisoned. I did not notice any difference between the Coca Cola I drank and the Coca Cola I had been drinking on previous times. The Coca Cola made me so sick I could not stand up for a while, and I vomited quite a lot. I sat down and rested a while, but I did not get any better; it seemed like I was getting worse. After I drank the Coca Cola, I noticed it had a reddish color, and when you held it up you could see some oil under it, and when you let it set for a while the oil came to the top. It tasted bad. I smelled the contents after I drank it and it smelled like coal oil or gasoline.'

Further testifying the witness stated that he carried the bottle with its remaining contents to the office of his physician, Dr. Collins, who took from it a sample of the fluid and returned it, and that there still remained in the bottle about one-third of its original contents; that he mailed a sample of the contents to the Salisbury Coca Cola Bottling Company, with a letter of complaint; that from four to six days after the purchase he gave the bottle to Dr. Ward; that when he handed it to Dr. Collins it was in the same condition as when he drank from it; that when it was redelivered to him by Dr. Collins it was in the same condition, except that a sample of the fluid had been taken from it; that at the time he saw Dr. Collins he was sick and vomiting blood; that the next morning he was in the same condition and could not eat anything; that on the third day he went to his place of employment to resume work and as he started to shuck oysters, he felt a knot in the lower part of his stomach and could not work; that he then went to see Dr. Ward, in whose charge his case had been placed by Dr. Collins during the latter's absence, and later went home, where he remained in bed almost continuously, until the 18th day of April, 1937; that, meanwhile, Dr. Ward attended him and that at times the doctor's visits were two or three times a day; that before he drank from the bottle of alleged Coca Cola, he was in perfect health and did not lose time from work, and that he had been in that state of health since he was released from a sanitarium to which he had been sent by Dr. Collins three and one-half years prior thereto; that he had not been able to do any work since the incident happened; that before he drank from the bottle he weighed 142 pounds, and at the time of the trial his weight was 116 pounds; that he paid Riggin for the Coca Cola; that he knew the Coca Cola was delivered to the Messrs. Riggin by Mr. Kelly, who was the man who drove the Coca Cola wagon for the defendant company; that the bottle he purchased had on it the words 'Coca Cola' and 'Salisbury, Maryland'.

On cross examination the witness stated that the closet in which the Coca Cola was kept by the Messrs. Riggin was under a stairway leading to the restaurant, the door to which was kept closed with a 'button', and that it was only necessary to turn the button for the purpose of entering the closet; that he entered it and got the three bottles of Coca Cola above mentioned, with the permission of Mr. Riggin; that he handed one to Nelson and another to Conner, and kept the third for his own use; that after he opened the bottle he put it to his lips without examining it and began drinking from it; that at first he did not detect any odor or bad taste from the contents, and that he saw the carriers from which he took the bottles, delivered by Mr. Kelly and placed in the closet around 2 o'clock on the day prior to the date on which he purchased and drank the liquid.

George T. Nelson, who was a consumer of one of the bottles of Coca Cola referred to in the testimony of the appellee, substantially corroborated the statements made by the latter; he saw Lowe take the bottles out of a case belonging to the Coca Cola Bottling Company, of Salisbury, and he had seen the cases delivered by Kelly to the Riggin establishment on the day previous to the date on which Lowe purchased the bottle from which he drink; the bottle which Lowe got was capped when he opened it; he found nothing wrong with the liquid in the bottle which Lowe handed him, nor was there anything wrong with that contained in a third bottle consumed by Aaron Conner. He noticed an 'awful expression' on Lowe's face just after he drank from the bottle, but did not taste its contents. He examined what was left in the container and it looked thick, red and different from the contents of the bottle from which the witness drank. Upon smelling the Lowe bottle he detected the odor of kerosene. He stopped Lowe from pouring the remaining contents out of the bottle; the cap was replaced thereon, and he accompanied Lowe to the office of Dr. Collins; the incident took place in his presence and in the presence of Aaron Conner, Willie Riggin and Rachael Smith.

Aaron Conner and Rachael Smith both corroborated the statements made by Nelson as to the manner in which the bottles were obtained from the closet, and what took place when Lowe drank the liquid. Miss Smith also testified that the color of the contents of the bottle was red, and that what was left in it smelt like oil.

It was shown by Willie Riggin, who was in charge of the restaurant, that the Coca Cola sold by him was delivered by Mr. Kelly, an employee of the Salisbury Coca Cola Bottling Company, on the day previous to the day on which Lowe made the purchase; that the bottle was in a regular case of the company when Lowe got it, the case being stored in a closet and the outer doors of the establishment being locked when it was not open for business.

Dr. C. C. Ward testified that he had practiced medicine for forty years; that on January 16, 1937, Lowe came to see him; that he had a bottle of Coca Cola which he asked the doctor to examine; that he stated he became ill from drinking from the bottle and had a knot on his side; that he (the doctor) examined the patient and found that he had an incomplete rupture; that Lowe gave him the Coca Cola bottle when it was about one-third full; that he gave it to John B. Robins (plaintiff's attorney) in the same condition as it was when he received it; and Mr. Robins testified that he received the bottle from Dr. Ward when one-third full; that he kept it locked in his safe, and delivered it to Dr. Collins, in the same condition as it was when he received it.

Dr. Collins testifying on behalf of the plaintiff, stated that he received a Coca Cola bottle from Mr. Robins on April 26; that he carried it to Baltimore on April 27, and delivered it to Maurice Siegel, a Consulting Chemist; that on April 28, he received the bottle from Mr. Siegel in the same condition as it was when he delivered it, except that the latter had removed some of its contents, and that he returned the bottle to Mr. Robins in the same condition, with the above exception, on April 29.

In previous testimony, Dr. Collins stated that Mr. Lowe came to his office on January 14, at which time he was nauseated and in intense pain. He was suffering from a toxic condition or acute poisoning of some kind, and vomited for half an hour. He showed the doctor a Coca Cola bottle then about two-thirds full of liquid, which had the odor of gasoline...