Alabama Coca-Cola Bottling Co. v. Ezzell

• Decision Date: 01 November 1927
• Docket Number: 7 Div. 339
• Citation: 22 Ala.App. 210,114 So. 278
• Parties: ALABAMA COCA-COLA BOTTLING CO. v. EZZELL.
• Court: Alabama Court of Appeals

114 So. 278

22 Ala.App. 210

ALABAMA COCA-COLA BOTTLING CO. v. EZZELL.

7 Div. 339

Court of Appeals of Alabama

November 1, 1927

Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.

Action for damages by L.E. Ezzell against the Alabama Coca-Cola Bottling Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Knox Acker, Sterne & Liles, of Anniston, for appellant.

Longshore & Longshore, of Gadsden, and Rutherford Lapsley, of Anniston for appellee.

BRICKEN P.J.

This was an action for damages. The appellee (plaintiff below) brought suit against appellant, wherein it was alleged that the defendant was engaged in the business of bottling and selling to the retail trade, for sale to the general public, a beverage known as Coca-Cola; that he purchased a bottle of this beverage from a retail dealer which had been bottled and put up and sold by defendant to said retailer; and that after drinking some of the contents of the bottle, he discovered there was a dead mouse in said bottle, and as a result thereof he, the plaintiff, was poisoned, made sick and greatly nauseated, and was thus caused great physical suffering, nausea, and pain for many hours, and was thereby greatly humiliated, outraged, and chagrined, etc., all proximately resulting from the use of the beverage from the bottle of Coca-Cola, and which damage and injury resulted to plaintiff as a proximate consequence of the negligence of the defendant in bottling and selling to the retail trade, for use by the public, Coca-Cola in condition above described, etc. There was judgment for plaintiff, from which this appeal was taken.

There were demurrers, of a general nature, interposed to the complaint. These, we think, were properly overruled, for it is apparent that the complaint in its ordinary meaning and construction stated a good cause of action.

The rule is well established that the seller of products that are to be used for human consumption warrants that they are suitable for that purpose. Coca-Cola Bottling Co. v Barksdale, 17 Ala.App. 606, 88 So. 36.

In this case a jury question was presented, thus rendering inapt the affirmative charge in favor of defendant. Moreover, the court must be sustained in refusing said charge under the authority of Bellingrath v. Anderson, 203 Ala. 62, 82 So. 22. In that case the court said:

"The defendant moved the court 'to have the jury go to its [i.e., defendant's] plant and

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