Beyer v. Coca-Cola Bottling Co.

• Decision Date: 08 November 1934
• Docket Number: No. 23041.,23041.
• Citation: 75 S.W.2d 642
• Parties: BEYER v. COCA-COLA BOTTLING CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

75 S.W.2d 642

BEYER v. COCA-COLA BOTTLING CO. OF ST. LOUIS.

No. 23041.

St. Louis Court of Appeals. Missouri.

November 8, 1934.

Rehearing Denied November 23, 1934.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be published in State Reports."

Action by Albert J. Beyer against the Coca-Cola Bottling Company of St. Louis. Judgment for plaintiff, and defendant appeals.

Affirmed.

Allen, Moser & Marsalek, all of St. Louis, for appellant.

Eagleton, Henwood & Waechter and Donald Gunn, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages arising out of the alleged breach by defendant Coca-Cola Bottling Company of St. Louis, in the sale of a certain bottle of its product to plaintiff, of the implied warranty of the fitness of the product for human use and consumption. At the trial below, before the court and a jury, plaintiff recovered a verdict and judgment in the sum of $1,200; and defendant's appeal to this court has followed in the usual course.

Pleading the sale of the bottle to plaintiff on or about March 21, 1931, the petition set up that, instead of the Coca-Cola being suitable and wholesome for drinking and consumption, the bottle contained a mouse, rendering the contents poisonous, dangerous, sickening, and injurious.

The answer filed by defendant was a bare general denial.

Plaintiff is Albert J. Beyer; and at the time in question he was engaged in the restaurant business at 1729 North Ninth street, in the city of St. Louis. His business, of course, included the sale of soft drinks to his trade; and it was his custom from time to time to buy a case or two of Coca-Cola from defendant's salesman assigned to that territory, paying cash in each instance as the delivery would be made. The salesman would bring the cases in from off his truck and set them back of plaintiff's counter near where the ice box stood; and the evidence shows that, after delivery was thus made, no one outside of plaintiff and his wife had access to that part of the premises.

Shortly before midnight on the night of March 21, 1931, plaintiff was in his restaurant waiting on his trade, which, at that moment, consisted of some five or six customers, three of whom were seated at a table playing cards. His wife was also present, busying herself in the preparation of the orders that were given in.

The card players ordered soda; and, when plaintiff went to the ice box to get the bottles, being thirsty himself, he also took out a bottle of Coca-Cola which he opened and started in to drink before taking the soda to his customers. He was in the act of taking the second drink out of the bottle when he felt some strange substance press against his lips, preventing the further flow of the liquid; and, upon a cursory examination of the bottle, he was able to see the foreign substance inside of it, although unable to determine what the substance was. He set the bottle down upon the counter, and, becoming nauseated, he went to the rear of the restaurant, where he immediately started in to vomit.

Plaintiff testified that he had drunk about one-third of the contents of the bottle before he discovered the substance inside of it, and that he did not see the bottle again until the following morning, when he was able to determine that the bottle contained the complete body of a mouse. However, his wife testified that, as soon as she noticed that her husband had become nauseated from drinking the Coca-Cola, she took up the bottle and found the mouse in it, and then, by using an ice pick, she partly removed the mouse from the bottle and then pushed it back inside again, so that the bottle could be kept for future observation in the same condition as when plaintiff had drunk from it.

The story of plaintiff and his wife was corroborated by two of his customers of that evening, as well as by their son-in-law, who chanced to come by the restaurant on his way home from the theater, arriving there just as Mrs. Beyer, in the presence of several men who were gathered around, was removing the mouse from the bottle with the ice pick. He testified that the body appeared to be that of "a tiny, baby mouse, just beginning to get hair."

In support of its general denial, defendant went into great detail in regard to the cleanliness of its plant and the system followed in the manufacture of Coca-Cola, the purport of all of which was to show, as its counsel state in their brief, "that the manufacturing and bottling process which defendant followed made it practically impossible for any foreign object, such as a mouse, to get into a bottle, or remain therein, so as to be sent out to the trade in such condition." However, as tending to support the idea that all bottles that are sent out to the trade are not satisfactory, we observe the testimony of Mr. Grooms, defendant's vice president and secretary, to the effect that, when bottles are returned to defendant because of some complaint made about them, they are put on his desk for a report to be made, and then a meeting is called of the superintendent, his assistants, and one or two bottlers, and inspections and tests are made to see if any trouble in the machinery can be eliminated.

The salesman on plaintiff's territory testified that on his first call upon plaintiff after the incident in question plaintiff told him of his experience and showed him the bottle, but refused to let the salesman have it so that an inspection and analysis could be made. He testified that he himself saw nothing in the bottle, but that he made a report of the complaint to his superiors.

Mr. Grooms admitted the receipt of such notice from the salesman, but testified further that neither plaintiff nor any one for him had ever turned the bottle in to defendant, and that the bottle had never come into his possession or the possession of defendant. However, in rebuttal, plaintiff denied the conversation with the salesman, and testified that a couple of days after the occurrence he called defendant on the telephone, that he did not know who it was who answered, and that latter in the day some one representing himself to be from defendant called at his restaurant and got the bottle.

The salesman testified that he had never at any time opened or tampered with a bottle given him for delivery to a customer, and that, save for periods of five or ten minutes while he would be inside places of business making deliveries, the bottles in his possession would never be out of his immediate sight and supervision. Other evidence for defendant was that it would be impossible for its delivery people to tamper with bottles because to open them would release the gas and render the drink unpalatable; and that, as soon as bottles are filled and capped, they are put in the stockroom, into which no one but defendant's own employees go.

Of the several reasons assigned why in its opinion the judgment rendered against it should not be permitted to stand, defendant argues as a matter of chief insistence that its requested peremptory instruction in the nature of a demurrer to all the evidence should have been given.

The first suggestion in support of such point is that plaintiff pleaded a breach of warranty in connection with a sale made "on or about the 21st day of March, 1931," that he failed to show that defendant had sold him the bottle in question, or in fact any bottle of Coca-Cola, at or about the time mentioned in the petition, and that the contract of sale and warranty specified in the petition was consequently wholly unproved, thus precluding a recovery under the theory that the plaintiff in a case cannot plead one transaction and recover upon proof of another.

We fail to find any merit in this contention. So far as concerns the proof of the warranty of fitness, that impliedly followed from proof of the sale of the product designed for immediate human consumption (Fantroy v. Schirmer [Mo. App.] 296 S. W. 235; Crocker Wholesale Grocer Co. v. Evans [Mo. App.] 272 S. W. 1017), so the ultimate question is that of whether plaintiff satisfied the burden of his case, notwithstanding the fact that he failed to show when the bottle was sold to him. We think that under the circumstances of the case no point is properly to be raised regarding the insufficiency of his proof in this respect. The use of the phrase "on or about" in the petition made the allegation of the time of the sale indefinite and uncertain at best (Hackenyos v. City of St. Louis [Mo. Sup.] 203 S. W. 986), and limited only to a period within a reasonable time of the date stated; and, if defendant then thought that time was definitely of the essence of the transaction, it might well have asked that the petition be made more definite and certain. Now, under the evidence, a sale of the Coca-Cola to plaintiff by defendant very shortly before March 21, 1931, could very reasonably be inferred. Plaintiff testified that all the Coca-Cola he bought came from defendant, and it will be recalled that he bought it in lots of only one or two cases at a time, a circumstance which would tend strongly to show that the particular bottle had not been very long in his possession.

So even upon this theory alone defendant's point might be thought to have been sufficiently answered, but there is even more to the case than this. Not once during the trial, so far as we can find from the record, did defendant intimate to the court that plaintiff, by having failed to prove the exact date of the sale, had failed to prove the cause of action set up in his petition. Indeed, the question of the precise date of the sale was not stressed as material at the trial; the contested issue being rather that of whether the mouse was or could have been inside the bottle when the bottle left defendant's possession and was delivered to plaintiff. Especially is such trial theory evidenced by defendant's own instructions Nos. 3 and 4, the one on the burden of proof, and the other upon...