Caines v. Marion Coca Cola Bottling Co.

• Decision Date: 31 March 1941
• Docket Number: 15237.
• Citation: 14 S.E.2d 10,196 S.C. 502
• Parties: CAINES v. MARION COCA COLA BOTTLING CO. et al.
• Court: South Carolina Supreme Court

14 S.E.2d 10

196 S.C. 502

CAINES v. MARION COCA COLA BOTTLING CO. et al.

No. 15237.

Supreme Court of South Carolina

March 31, 1941

J K. Dorman, Epps & Epps, and Lonnie D. Causey, all of Conway, for appellant.

Wright & Burroughs and E.S.C. Baker, all of Conway, for respondents.

FISHBURNE Justice.

Alleging that he swallowed a small portion of a mangled and putrified cockroach while drinking from a bottle of coca cola manufactured and sold by the corporate defendant, Marion Coca Cola Bottling Company, and retailed by the personal defendant, B. T. Dorman, on October 6, 1938, the plaintiff brought this action for the recovery of damages actual and punitive. The coca cola was purchased by the plaintiff for immediate consumption in Dorman's store in the city of Conway. At the close of the testimony a directed verdict was granted as to the personal defendant, but refused as to the defendant company. The jury found a verdict for the defendant company, and it is from the judgment entered thereon that this appeal is taken.

The appellant assigns error relating to the instructions given by the Court to the trial jury. Complaint is made that the Court erred in refusing the requested instruction that the Pure Food Statute would govern in this case. That instead of so doing the presiding Judge charged both the statute law and the common law, which tended to confuse and mislead the jury to the prejudice of the plaintiff's case.

The complaint contained allegations appropriate to a cause of action under the provisions of the Pure Food Statute as well as under the common law. During the progress of the trial the Court inquired of plaintiff's attorneys: "Do you base your whole cause of action on the Pure Food Act, or do you also insist on the common-law rule of due care?" The attorneys replied, after some colloquy, "We are resting on the statute, the Pure Food Act."

That the action was rested solely upon the Pure Food Statute appears to have been clearly understood by defendant's attorneys. Their motion for a directed verdict was confined to a failure of proof under the statute and it is recited in their motion, as shown by the record, that "The plaintiff brings his action under the Pure Food Law, Section 1452 of the Code." No reference whatever was made to common-law principles of negligence, either in the motion for the directed verdict made by the corporate defendant, or in the order of the Court overruling the same. In his instructions to the jury, however, the Court, in discussing the question of the defendant's liability, dealt at great length on the law of negligence and due care as being applicable to the facts in the case. The record shows that neither side offered any evidence tending or purporting to show any negligence on the part of the corporate defendant in the manufacture and bottling of the coca cola in question. The evidence made no issue as to which common-law principles might apply. In our opinion the error assigned must be sustained.

A Court is not warranted in submitting to a jury, by instructions, an issue raised by a pleading which is abandoned in open Court by the party pleading it, and in support of which no evidence is presented. The general rule is well settled that instructions should be confined to the issues made by the pleadings and that an instruction which is based on an issue not raised by the pleadings is erroneous. 64 C. J., Section 651, Page 745; Fanning v. Stroman, 113 S.C. 495, 101 S.E. 861; Dickson v. Epps, 104 S.C. 381, 89 S.E. 354.

By charging common-law principles of negligence, we cannot escape the conclusion that the Court committed prejudicial error. The instructions should have been confined to the Pure Food Statute.

The only witnesses called by the defendant to testify were six jurors who had served on the jury on the first trial of this case which resulted in a mistrial. They were permitted to testify over objection that in the first trial the same bottle of coca cola was introduced in evidence; that they examined the contents of the bottle at that time, and did not find anything therein in the nature of a cockroach or portions of a cockroach. They stated that the foreign matter in the coca cola was paraffin wax. The objection of the appellant to this evidence is that it was incompetent contrary to public policy, and that it constituted an invasion of...