Minkus v. Coca Cola Bottling Co. of California

• Citation: 44 F. Supp. 10
• Decision Date: 26 March 1942
• Docket Number: No. 22072.,22072.
• Parties: MINKUS et al. v. COCA COLA BOTTLING CO. OF CALIFORNIA.
• Court: U.S. District Court — Northern District of California

44 F. Supp. 10

MINKUS et al. v. COCA COLA BOTTLING CO. OF CALIFORNIA.

No. 22072.

District Court, N. D. California, S. D.

March 26, 1942.

Gorman R. Silen, of San Francisco, Cal., for plaintiffs.

Jesse H. Steinhart and John J. Goldberg, both of San Francisco, Cal., for defendant.

ST. SURE, District Judge.

The question for decision is whether the parents of a minor may recover damages for nervous shock, resulting from an alleged breach of warranty and negligence whereby the minor was injured.

The complaint contains four counts. In the first, the minor, through his guardian, seeks damages for personal injuries alleged to have been suffered from finding a decomposed mouse in a bottle of Coca Cola which he had partly consumed. It is further alleged that the beverage was warranted fit for human consumption, whereas, in fact, it was dangerous to health and life. Upon the same facts the second count charges negligence. In the third and fourth counts the father and mother, respectively, seek damages for nervous shock alleged to have been caused by the happening mentioned.

A motion to dismiss the third and fourth counts is made upon the ground that each falls to state a claim upon which relief can be granted.

Defendant relies upon the general rule that one may not recover damages for fright or mental shock from injuries received by another when the claimant himself sustained no physical injury. In the United States a limitation is placed upon the liability of a defendant for a negligent act. Emphasis is laid upon the duty owed by the defendant to the particular plaintiff, rather than whether the negligent act of the defendant was the proximate cause of the injury. The reason for the limitation, especially in cases like the present, is that "once the defendant's duty is held to extend to those outside the field of physical peril, a doctrine is stated to which no rational boundaries can be erected." Waube v. Warrington, 1935, 216 Wis. 603, 258 N.W. 497, 500, 98 A.L.R. 394.

In actions similar to the one at bar the courts have discussed and passed upon three situations:

(1) Where there is fright, shock or mental suffering due to peril to children or spouse and there is actual physical impact. In such cases the courts allow recovery on the theory that the plaintiff is within the field of those persons to whom defendant owed a duty. In the case of Lindley v. Knowlton, 179 Cal. 298, 176 P. 440, 441, a chimpanzee entered a home and started to choke the plaintiff's children. She successfully fought the ape and saved her children. The jury awarded her damages due to shock and fright. Appeal was taken on the ground that the trial court refused to instruct the jury that no recovery could be had unless the fright occasioned by defendant's negligence was accompanied by some personal and bodily injury to plaintiff; that the injury must be a physiological one, and that no recovery could be had on account of fright produced by apprehended danger or peril to a third person. In affirming the decision of the trial court, the court said:

"Conceding the full force of appellant's first contention that no damages may be given for mere fright, we are of the opinion that the court sufficiently covered this matter in the instructions to which we have alluded. The complaint was not drawn upon the theory that the lady had merely suffered the mental discomfort of fear, but was...