Broadway v. Grimes

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS, Justice.
• Citation: Broadway v. Grimes, 169 S.E. 194, 204 NC 623 (N.C. 1933)
• Decision Date: 03 May 1933
• Docket Number: 410.
• Parties: BROADWAY v. GRIMES et al.

169 S.E. 194

204 N.C. 623

BROADWAY v. GRIMES et al.

No. 410.

Supreme Court of North Carolina

May 3, 1933

Appeal from Superior Court, Davidson County; Shaw, Emergency Judge.

Action by S. M. Broadway against J. C. Grimes and another, trading as the Lexington Coca-Cola Bottling Company. Judgment for plaintiff, and defendants appeal.

No error.

Consumer purchasing from retailer bottled beverage containing foreign substance could recover against manufacturers.

In consumers' actions against manufacturers of bottled beverages containing foreign substance, evidence that on prior occasions foreign substances had been found in other bottles prepared by defendant manufacturers is admissible when properly guarded.

The plaintiff brought suit to recover damages for injury caused by drinking from a bottle of coca-cola which contained some noxious foreign substance. His allegations are that he drank a part of the contents and suffered a burning sensation in his throat, stomach, and other internal parts of his body that he immediately became sick and upon examination found in the bottle a brown, green, and black substance, some of it floating and some adhering to the bottle; and that he was thereby poisoned.

The plaintiff bought the coca-cola from a retail dealer who had purchased it from the defendant, by whom it had been bottled. The contention was that the defendants had negligently permitted a poisonous substance to be intermixed with the coca-cola.

The defendants denied all the averred acts of negligence and alleged that they had used the best procurable machinery in cleansing and filling the bottles, had inspected every bottle, had employed skilled labor, and had exercised all reasonable care in the prosecution of their business.

The plaintiff testified in support of his complaint that the bottle contained green slime, half as long as his little finger; that the drink burned his mouth, throat, stomach, and caused nausea; that he could not sleep; that he lost in weight and was under treatment about four months.

A medical expert found sediment in the bottle and a large black lump about an inch in diameter, with flakes around it floating in the solution. He testified that he had found the plaintiff's mouth red, congested, irritated; that he was sick, weak, and highly nervous; and that "some powerful irritant had upset him."

The defendants offered evidence in rebuttal, and the two issues of negligence and damages were answered by the jury in favor of the plaintiff.

Judgment for the plaintiff, and appeal by defendants upon assigned error.

Raper & Raper, of Lexington, for appellants.

Spruill & Olive, of Lexington, for appellee.

ADAMS Justice.

It is not controverted that the defendants bottled the beverage and sealed it in "a regulation coca-cola bottle with a regulation cap," or that they sold it to a distributor or that the plaintiff purchased it in due course of trade and became the ultimate consumer. The regulation bottle is opaque or colored to such extent that a noxious substance in it would not as a rule be readily observable. The verdict establishes the negligence of the defendants and the consequent injury suffered by the plaintiff. The first question is whether the defendants as manufacturers of the drink were under legal obligation to the plaintiff to exercise reasonable care that the article sold contained no substance likely to cause injury to health.

On this question there is divergence of opinion. There are decisions which in these circumstances hold the defendant to strict accountability; there are others which limit liability to injury caused by negligence connected with some contractual dealing or relation of the parties. The opposing views are set forth in exhaustive opinions recently delivered in the House of Lords in McAlister v. Stevenson, Appeal Cases, Law Reports 1932, 562. There a shopkeeper sought damages from a respondent, who was a manufacturer of aerated waters, for injuries she suffered as a result of consuming part of the contents of a bottle of ginger-beer which had been manufactured by the respondent, and which contained the decomposed remains of a snail. It was averred that the bottle had been purchased for the appellant by a friend in a café; that the bottle was made of dark opaque glass and that the appellant had no reason to suspect that it contained anything but pure ginger-beer; that the beer was poured into a tumbler and that the appellant drank some of the contents of the tumbler; that a friend was then proceeding to pour the remainder of the contents of the bottle into the tumbler when a snail, which was in a state of decomposition, floated out of the bottle; that as a result of the nauseating sight of a snail in such circumstances and in consequence of the impurities in the ginger-beer which she had already consumed, the appellant suffered from shock and severe gastro-enteritis. The appellant further averred that the ginger-beer had been manufactured by the respondent to be sold as a drink to the public (including the appellant); that it had been bottled and labeled by the defendant and sealed with a metal cap. The negligence of the respondent was specifically set out. The Lord Ordinary held that the averments disclosed a good cause of action, but the Second Division of the Court of Sessions dismissed the action, and an appeal was taken.

Five opinions were delivered in which the various aspects of the case were considered and the judgment of the Second Division was reversed and that of the Lord Ordinary was restored. Special interest was attached to the subject, Lord Atkin observing, "I do not think a more important problem has occupied your Lordships in your judicial capacity." The decision was rendered in 1932. On the one hand, it was said that the only safe rule is to confine the right to recover...