Caudle v. F. M. Bohannon Tobacco Co.

• Decision Date: 08 October 1941
• Docket Number: 19.
• Citation: 16 S.E.2d 680,220 N.C. 105
• Parties: CAUDLE v. F. M. BOHANNON TOBACCO CO.
• Court: North Carolina Supreme Court

16 S.E.2d 680

220 N.C. 105

CAUDLE v. F. M. BOHANNON TOBACCO CO.

No. 19.

Supreme Court of North Carolina

October 8, 1941

This is an action for actionable negligence, brought by plaintiff against the defendant alleging damage. The defendant introduced no evidence. The evidence on the part of plaintiff is to the effect that the defendant is engaged in the manufacture and sale of plug tobacco in Winston-Salem, N. C under different brands--one of which was that of "Red White and Blue".

E M. Gough, a retail merchant of Surry County, N. C., testified that he lived near plaintiff and that this and other brands of tobacco were purchased through defendant's salesman and shipped direct to him by defendant by parcel post from Winston-Salem, N. C., where defendant operated a factory. "As a merchant I have been buying from the Bohannon Tobacco Company such brands of plug chewing tobacco as Detective Lucky Joe, Favorite and Red, White and Blue."

Gough sold to plaintiff's husband, who traded with him and usually bought the Bohannon brands--one of the brands being the "Red, White and Blue". Plaintiff's husband testified to the effect that he and his wife chewed "Red, White and Blue" tobacco and he bought a plug from Gough about the 1st day of January, 1939. "I cut it in two and gave my wife half and put the other half in my pocket. I bought it at the store of Mr. Gough. My wife was not with me when I bought that plug of tobacco. I went down bought it and brought it home. I came straight on home the day I bought it. She was chewing on it something like two or three days. She started using it as quick as I gave it to her. She had no other tobacco. It was just a short plug. It had a seam in the middle of it to cut it by. It was a ten-cent piece, the best I recall. It had a seam in the middle, which made an equal division, and I gave her half and took the other. It was about 10 or 11 o'clock in the day of January 5th that I found out about an injury to my wife. *** I had been away from home about an hour. I started down there and saw my wife coming, bent over with her hand over her mouth. I knew something was the matter because she was well when I left home. I asked her what was the matter. (The Court limited the evidence to corroboration.) She says, 'I have got something in my mouth. I bit it off with a piece of tobacco.' I says, 'Let me see'. I looked in her mouth and saw a wire sticking through her teeth, sticking through her lower teeth into the gum. The hook part was hooked back in the gum on the lower side. I didn't try to fool with it. I carried her to Mr. Lane's, a neighbor, to get him to carry her to the doctor to get it out. Mr. Lane lives five or six hundred yards from my house. We went down there and Mr. Lane got to work at it and got the hook out. I carried Mrs. Caudle home. She had to lay down when we got about half way home, on the ground. When she got able I got her to the house. In an hour or two I had Mr. Lane carry her to Dr. Tillotson at Pilot Mountain. I do not know just how many times I carried her to Dr. Tillotson but it was two or three times a week for right about four months. *** Then Dr. Tillotson sent her to the Martin Memorial Hospital in Mount Airy. She was treated at the hospital on each Thursday for eleven weeks straight. I carried her to Dr. Mitchell at Mount Airy and he looked in her mouth. I took her down to Winston one time to Dr. Rousseau, a cancer specialist. Dr. Fry in Pilot Mountain, a dentist, treated her mouth the first day I took her to Dr. Tillotson. He has not treated her since. I have the tobacco and the fish hook. The piece of tobacco I hold in my hand is the piece of tobacco I bought at Mr. Gough's store and gave to my wife. Mr. Lane got the fish hook which I hold in my hand out of Mrs. Caudle's mouth. I got it from Mr. Lane, and that is the same fish hook that came out of my wife's mouth. I took it at that time and have kept it since. The bridgework I hold in my hand is a bridge out of my wife's mouth. It broke out and came out of my wife's mouth. I have kept up with it since then."

He further testified as to the impairment of his wife's health, which had been good before: "She was up at night for a while a whole lot, because she was suffering. She couldn't sleep and couldn't rest. That situation existed for something like four months, all the time Dr. Tillotson was tending on her. My wife weighed approximately 165 pounds on the 5th day of January, 1939. I don't know what her weight was during that four month period but she fell off considerably. I didn't have her weighed but she got mighty lean and fell off a whole lot. She couldn't eat. Ate from the corner of her mouth for a long time. She would drink milk and eat from the side of her mouth. She ate only liquids during that time and she couldn't stand anything with any salt in it. I saw inside her mouth. It was raw and sore in there. That got on the outside. It finally broke out all over her face when she was going to the hospital in Mount Airy. No dentist other than Dr. Fry treated her mouth any time lately. Dr. Hardin bridged her teeth way back, years before that. After that bridge came out, the teeth that the bridge was swung to rotted out. I saw the condition of her teeth, I could see the condition was bad, they rotted."

Plaintiff testified, in part: "My husband and I have been married for about 43 years. I am 61 years of age now. I do not now chew tobacco, but I used to chew. I think I took a chew of tobacco off the plug which is handed to me. I know I did. The fish hook handed to me is the one that was in my mouth when I bit the tobacco. That bridgework was in my mouth at one time. It was the 5th day of January, 1939 that I bit into the plug of tobacco and got the fish hook in my mouth. I reached up on the mantel board. I had the tobacco in the poke he gave it to me in. I was sitting there sewing and reached up and got the piece of tobacco, taken it out and taken a chew of tobacco. When I first bit it, I thought it was a stem I had. I bit down a little bigger. Whenever I bit the chew off, something slipped through my teeth and come into my lip. I just started off that way to get somebody to help me get it out, do something; I didn't know what. *** I always chewed plug tobacco, manufactured tobacco. I always told him when he went to the store to get 'Red, White and Blue', because I liked that brand better than any brand of tobacco I ever chewed. When he got the first hook out of my mouth, he took out the chew of tobacco in my mouth. The fish hook was plumb through my teeth and sticking in my lip. I guess the tobacco was still in there, too. It never came out until the fish hook was taken out. The tobacco wasn't out of my mouth until the fish hook came out. The fish hook came out first and then the tobacco. Up until that morning I was in very good health all the time, and was doing my work. I got up anywhere from 3:30 to 4 o'clock in the morning. I always generally done my house work and if there was anything for me to help my husband do, I did that. I did the milking, the cooking, and cleaned up the house. I worked in the garden. *** After I received this injury on this fish hook, the whole side of my mouth was plumb raw. My lip had swollen until it was wrong-side-out for I guess a month. Dr. Tillotson treated me for about four months, the best I can recall. Then he said he had done all he could do for me and for me to go to Dr. Ashby, at the Martin Memorial Hospital in Mount Airy, and I went. They treated me there for about eleven weeks. During that period of time I suffered lots in day time and nights too. Lots of times at night I didn't rest at all. The pains run around, went up and down the leaders all the time."

W. W. Ball testified, in part: "I live in Dobson. I chew tobacco and did in 1939, during the January or February Term of Court that year. I chew different kinds but at that time I was chewing 'Red, White and Blue', which is manufactured by the F. M. Bohannon Company. It was the same type as plaintiff's Exhibit A, a short plug pretty thick. That is the same kind I was chewing.

"Q. Mr. Ball, did you bite into a plug of this in Court about the first Court in 1939, January or February? A. I bought a dime's worth at the time.

"Q. Please tell His Honor and the jury what you found in it?

"The Court: Was it 'Red, White and Blue' tobacco? A. Yes sir.

The Court: Did it have a tag on it? A. Yes, sir.

"Q. What did you find in it, if anything? A. I bit in it and it didn't bite right. I taken it out of my mouth and broke out the piece where I couldn't bite and I pulled it open. I knew there was something or other in it. I thought it was a piece of wood, and it looked more like a rat's claw or foot.

"Q. Just describe what it was. A. I couldn't describe positively it was a rat's foot. The best of my opinion it was a rat's foot.

"Q. Go ahead and describe it. How long was it? A. It was short, something like a wharf rat's foot. Pretty good sized or squirrel's.

"The Court: Just describe it, whether it was hard or soft. A. It was hard and I couldn't bite it. I took it out and opened it up, the piece of tobacco, and looked at it.

"Q. How long was it? A. It wasn't very long, about as long as an ordinary rat's foot. I have killed wharf rats.

"Q. How was it shaped? A. I didn't pay so much attention to it after I saw what it looked like to me. I just throwed it down. Just like a rat's foot.

"Q. Please tell His Honor and the jury if it was sharp at one end and broader at the other.

"The Court: Just describe the object. A. It looked like there was a little more to one end of it than there was to the other."

Several witnesses corroborated the testimony of the Caudles, who proved that their general reputation was good. Dr. S. M....