Bufkin v. Grisham

• Decision Date: 19 May 1930
• Docket Number: 28657
• Citation: 128 So. 563,157 Miss. 746
• Court: Mississippi Supreme Court
• Parties: BUFKIN et al. v. GRISHAM

128 So. 563

157 Miss. 746

BUFKIN et al. v. GRISHAM

No. 28657

Supreme Court of Mississippi, Division B

May 19, 1930

APPEAL from circuit court of Bolivar county, Second district, HON WM. A. ALCORN, JR., Judge.

(Division B.)

1 ACTION. Food. Sales. Manufacturer of drinks, permitting deleterious or harmful agencies therein, may be liable for negligence, though also liable on implied warranty of purity declaration against manufacturer of drinks, permitting deleterious or harmful agencies therein, may be on tort or on contract.

A party may be liable for negligence in the manufacture of drinks for human consumption by which deleterious or harmful agencies are permitted to be mixed in the drink, although he is also liable on implied warranty of the purity of the drinks. In such case a person may declare in tort or on contract.

2 FOOD. Venue, Manufacturer's agent may be joined as defendant in suit based on negligence in permitting deleterious substances in drinks; agent of manufacturer was properly joined in suit for permitting deleterious substances in drinks and venue properly laid in county where agent is doing business (Hemingway's Code 1927, section 500).

In a suit for damages based upon negligence in permitting deleterious substances to become mixed in drinks manufactured for human consumption, the superintendent or other agent of the corporation whose negligence caused the injury may be joined as a defendant with his principal, and venue may be laid in the county where the agent is found doing business for the manufacturer.

3. APPEAL AND ERROR. Witnesses. Though witness may be examined as to conviction of crime, details of crime should not be inquired into; fact that witness examined as to conviction of crime gives details is not reversible error.

A witness may be examined as to his conviction of crime, and the crime of which he was convicted may be ascertained, but the details of the crime should not be inquired into, but if, when asked as to what crime he was convicted, the witness gives the details not called for by the question, it is not reversible error.

4. APPEAL AND ERROR. Damages. One thousand two hundred sixty dollars for damages caused by being made sick from drinking Coca-Cola containing deleterious substances held not excessive; verdict involving sickness and physical suffering will not be set aside unless brought about by bias, prejudice or corruption.

A verdict for one thousand two hundred fifty dollars for damages caused by being made sick from drinking Coca-Cola which contained deleterious substances, where such sickness lasted two days, accompanied by vomiting and symptoms similar to ptomaine poison and injuries to the stomach, necessitating abstinence from heavier foods for several weeks, will not be deemed excessive within the meaning of the law so as to require diminution or a new trial. Unless the court can say that a verdict was brought about by bias, prejudice, or corruption, it will not set it aside, where sickness and physical suffering are involved.

HON. WM. A. ALCORN, JR., Judge.

APPEAL from circuit court of Bolivar county, Second district, HON. WM. A. ALCORN, JR., Judge.

Suit by J. G. Grisham against R. L. Bufkin and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Judgment affirmed.

Wynn & Hafter, of Greenville, for appellants.

In the beverage cases, our courts have fixed liability on the bottler, on the theory of an implied warranty; viz., ex contractu.

Coca-Cola Company v. Chapman, 64 So. 791; Watson v. Brewing Company, 112 Ga. 121; Chenault v. Coca-Cola Company, 118 So. 177.

The court has adhered strictly to the doctrine of an implied warranty as a basis of liability, and, on numerous occasions, has declined to consider the theory of liability based on negligence.

Rainwater v. Coca-Cola Co., 95 So. 444.

Over the objection of appellant, he was questioned as to the details of the conviction, and this was erroneous.

Powers v. State, 126 So. 12.

Shands, Elmore & Causey, of Cleveland, for appellee.

Civil actions, of which the circuit court has original jurisdiction, shall be commenced in the county in which the defendant or any of them may be found.

Hemingway's 1927 Code, Sec. 500; Indianola Cotton Oil Mill Co. v. Crowley, 121 Miss. 262.

There was a proper joinder.

I. C. R. Co. v. Clark, 85 Miss. 691.

In the case at bar judgment was recovered against both the owner and the general manager and agent.

The agent because of his personal negligence in failing to see that every bottle was inspected as he, in his testimony, states was his duty, and to further see that no bottles were placed upon the market containing any deleterious substance; the owner, J. Q. Strange, was held liable because of his failure to discharge his nondelegable duty to the public regarding the preparation of beverages intended to be consumed by human beings.

Negligence of manufacturers may be shown, and declaration may be on tort or contract.

Grapico Bottling Company v. Ennis, 140 Miss. 502; Coca-Cola Bottling Works v. Lyons, 145 Miss. 876.

The verdict was not excessive.

Coca-Cola Company v. Lyons, 145 Miss. 876.

OPINION

Ethridge, P. J.

J. G. Grisham was plaintiff in the court below, and filed a suit against J. Q. Strange and R. L. Bufkin for damages resulting from sickness and injury to the plaintiff caused by drinking a bottle of Coca-Cola manufactured by Strange and one Pidgeon, a partnership operating a Coca-Cola bottling plant in Cleveland, Mississippi, of which R. L. Bufkin was manager but not an owner.

It appears that about July 1, 1929, the plaintiff went to Brown drug store at Merigold, Mississippi, and purchased the bottle of Coca-Cola, of which he had consumed about one-third, when he was called from the drug store to his place of business. As he reached his place of business, he became violently sick, and vomited for a considerable period. A doctor was summoned who treated him and testified as to his illness and injury, and that the said plaintiff was under his treatment for several days, and that his stomach was affected from drinking the concoction, and he had to be placed on a diet. According to the doctor's recollection, the patient was under his treatment for some two or three weeks at intervals. From other testimony it appears that he was confined to his bed for two days and remained in Merigold only about a week after the injury and moved to Arcola, Mississippi. It was testified for the plaintiff that he was still affected by the injury, and was still on a diet, and could not eat heavier foods, but that prior to his injury he was healthy and could eat almost any food.

There was a verdict for one thousand two hundred fifty dollars for the plaintiff, from which judgment this appeal is prosecuted.

It appeared that Pidgeon was a resident of Memphis, Tennessee, and was not served, and that Strange was a resident of Washington county, and Bufkin was a resident of Bolivar county where the bottling works were operated. Strange made a motion for a change of venue to Washington county, and also filed a plea of misjoinder as to Bufkin, contending that Bufkin was made a defendant for the fraudulent purpose of obtaining jurisdiction.

The declaration was...