Bellingrath v. Anderson

• Decision Date: 01 May 1919
• Docket Number: 3 Div. 385
• Citation: 203 Ala. 62,82 So. 22
• Parties: BELLINGRATH v. ANDERSON.
• Court: Alabama Supreme Court

82 So. 22

203 Ala. 62

BELLINGRATH v. ANDERSON.

3 Div. 385

Supreme Court of Alabama

May 1, 1919

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Action by Mrs. C.W. Anderson against W.A. Bellingrath. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911 Affirmed.

Ball &amp Beckwith, of Montgomery, for appellant.

Hill Hill, Whiting & Thomas, of Montgomery, for appellee.

McCLELLAN J.

The plaintiff (appellee) sued the defendant (appellant) for damages proximately resulting to her because of the negligence of the defendant who was engaged in bottling and selling to the retail trade, to be sold to the public, a beverage called "Coca-Cola." The plaintiff's case was this: She purchased from a retailer a bottle of "Coca-Cola," put up by the defendant, in which there was a dead mouse; innocently drank a part of the bottle; was in a degree poisoned; was made acutely sick requiring the care of a physician; and suffered great discomfort from nausea, etc., for many hours. The jury awarded plaintiff damages in the sum of $500.

Only two questions are argued for the appellant in this court, viz.: (a) That defendant was erroneously refused the general affirmative charge, requested by him; and (b) that the damages fixed by the jury are excessive.

The defendant moved the court "to have the jury go to its (i.e., defendant's) plant and inspect the machinery (which, we interpose, the defendant's evidence disclosed was used to clean and purify the bottles before they were filled, and to fill them) and to see how it was operated." The motion being granted, the bill of exceptions recites that "the jury went to defendant's plant, inspected and [the] machinery testified about, and saw the operation of this machinery." It is manifest that the jury were thus afforded, through their observation and inspection of the machinery and its operation, an opportunity for and means of information that is not now presented to this court. In such circumstances it has been consistently often ruled that review cannot be accorded the action of the trial court, or of the jury in respect of conclusions upon issues of fact including the propriety vel non of refusing the general affirmative charge, that may have been affected by the data that is not submitted to the consideration of this court. Faught v. Leith, 78 So. 830; Hale v. Tenn. Co., 183 Ala. 507,...