Blount v. Houston Coca Cola Bottling Co.

• Decision Date: 02 January 1939
• Docket Number: 33475
• Citation: 185 So. 241,184 Miss. 69
• Court: Mississippi Supreme Court
• Parties: BLOUNT v. HOUSTON COCA COLA BOTTLING CO. et al

185 So. 241

184 Miss. 69

BLOUNT v. HOUSTON COCA COLA BOTTLING CO. et al

No. 33475

Supreme Court of Mississippi, Division B

January 2, 1939

APPEAL from the circuit court of Calhoun county HON. T. H. McELROY Judge.

Action by J. M. Blount against Houston Coca Cola Bottling Company and another for damages resulting from drinking a part of the contents of a bottled beverage. From a judgment for defendants upon a directed verdict, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Patterson & Patterson, of Calhoun City, and Creekmore, Creekmore &amp Capers, of Jackson, for appellant.

The doctrine of res ipsa loquitur applies in this case.

We think this question of res ipsa loquitur is foreclosed in Mississippi by the case of Pillars v. R. J. Reynolds Tobacco Co. et al., 117 Miss. 490, 78 So. 365, wherein it was held that the manufacturer of tobacco was liable where a human toe was found in chewing tobacco and poisoned an ultimate customer.

As a practical matter it would be impossible for a plaintiff injured by drinking coca cola with foreign matter in it to prove that the bottling company was negligent in its manufacture. This is because the coca cola is bottled before the injury occurs and the facts about the negligence are exclusively within the knowledge of the company. If the company, on the other hand, can prove to the satisfaction of a jury that it had used great care in the manufacture of the bottle drink, then a defense would be made, but the law is that great care must be used and it is no undue burden to place upon the defendant to require him to prove the manner and method of the manufacture of the bottle drink and that great care was used in such manufacture. The general weight of authority in this country is that the doctrine of res ipsa loquitur applies in such a case.

4 A.L.R. 1559; Jackson Coca Cola Bottling Co. v Chapman, 106 Miss. 864, 64 So. 791.

In the case of Try-Me Beverage Company v. Harris, an Alabama case, 116 So. 147, it was held that the presence of foreign matter deleterious to health in a bottle of soft drink is evidence of negligence.

We respectfully submit that the rule in Mississippi is, as announced by Pillars v. Tobacco Co., 117 Miss. 490, 78 So. 365, that the manufacturer of food (or drink) is liable to one eating (or drinking) the manufactured product when there is a foreign and deleterious substance therein: and the proof by the plaintiff that there was a harmful and foreign matter in the product raises a presumption of negligence on the part of the manufacturer, and makes out a prima facie case of liability.

Thomas J. Tubb, of West Point, for appellees.

The doctrine of res ipsa loquitur does not apply in this case.

Practically all the cases on impurities in beverages that have been to this court have been based upon the breach of an implied warranty.

Rainwater v. Hattiesburg Coca Cola Bottling Co., 94 So. 444, 131 Miss. 315; Coca Cola Bottling Works of Greenwood v. Simpson, 130 So. 479, 158 Miss. 390; Coca Cola Bottling Works v. Lyons, 111 So. 805; Chenault v. Houston Coca Cola Bottling Co., 118 So. 177, 151 Miss. 371; Grapico Bottling Co. v. Ennis, 106 So. 97, 140 Miss. 502.

In only one case do we find suit based on negligence, Bufkin v. Grisham, 128 So. 563.

Appellant cites the case of Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490, 78 So, 365, as authority for applying the doctrine. The opinion does not state upon what theory or basis the suit was founded. However, this case has been cited in support of the implied warranty doctrine by this court in the cases, Kroger Grocery Co. v. Lewelling, 145 So. 726; Rainwater V. Hattiesburg Coca Cola Bottling, 95 So. 444. We do not think the court held the doctrine applicable in the Pillars case. But, if we be wrong, it should be overruled in the light of the development of the law since that case in this state on impurities in beverages.

The doctrine should not be held applicable in this jurisdiction in beverage cases because we are committed to the doctrine of the right to recover either on a breach of an implied warranty or in tort. In the ex contractu suit the plaintiff has only to prove the foreign substance in the bottle. Certainly the plaintiff should be required to prove negligence, if he bases his suit thereon.

McCain v. Wade, 180 So. 748.

We call the court's attention further to the proof. The coca cola in question was purchased from defendant Lipham. Lipham is the only witness who testified about the coca cola prior to the purchase thereof by the appellant. His sole testimony on that point is that he purchased the coca cola which he sold appellant from Houston Coca Cola Bottling Company. There is no proof as to how long Lipham had had possession of the bottle, nor where he kept it, what use, if any, had been made of it, whether or not other people had access to it, nor that it was in the same condition when he sold it to appellant as when he purchased it. Under these facts and the following general rule, the doctrine of res ipsa loquitur cannot apply: "It must appear, in conformity with the statements of the rule (res ipsa loquitur) that the negligent cause or thing which produced the injury complained of was wholly and exclusively in the possession, and under the control and management of defendant or his servants." 45 C. J., pages 1214-13, sec. 781.

OPINION

McGehee, J.

This appeal is from the action of the circuit court of Calhoun County in granting a peremptory instruction in favor of appellees, Houston Coca Cola. Bottling Company, as the manufacturer, and J. D. Lipham, as the retailer, of a bottle of Coca Cola sold to appellant, and the...