Cernes v. Pittsburg Coca Cola Bottling Co.

• Decision Date: 06 December 1958
• Docket Number: No. 41098,41098
• Citation: 183 Kan. 758,332 P.2d 258
• Parties: , 77 A.L.R.2d 208 William Eugene CERNES, Appellee, v. The PITTSBURG COCA COLA BOTTLING COMPANY, a Corporation, Appellant.
• Court: Kansas Supreme Court

Page 258

332 P.2d 258

183 Kan. 758, 77 A.L.R.2d 208

William Eugene CERNES, Appellee, v. The PITTSBURG COCA COLA BOTTLING COMPANY, a Corporation, Appellant.

No. 41098.

Supreme Court of Kansas.

Dec. 6, 1958.

Syllabus by the Court.

In an action for breach of an implied warranty where plaintiff recovered damages for personal injuries resulting from the consumption of a portion of a bottled carbonated beverage containing a foreign substance--as more fully set out in the opinion--which caused immediate nausea and vomiting and the aggravation of a pre-existing physical condition, the record is examined and it is held that the trial court did not err:

(1) In overruling defendant's demurrer to plaintiff's evidence;

(2) In refusing certain requested instructions;

(3) In its instructions to the jury;

(4) In striking certain allegations from defendant's answer; and

(5) In sustaining objections to a portion of defendant's proffered testimony.

R. L. Letton, Pittsburg, R. L. White, Pittsburg, on the briefs, for appellant.

Perry Owsley, Pittsburg, Sylvan Bruner, Pittsburg, on the briefs, for appellee.

WERTZ, Justice.

This was an action, based upon breach of an implied warranty, to recover damages for personal injuries caused by drinking a part of a bottled beverage which contained a foreign substance. The basis of plaintiff's action was that defendant in bottling and placing the beverage on the market for immediate human consumption impliedly warranted it was wholesome and fit for such purpose, and the contents of the bottle in question being unfit for human consumption, defendant thereby reached such implied warranty.

Defendant (appellant) alleged that at the time plaintiff (appellee) was drinking from the bottle of beverage he was also eating peanuts and but for his act or omission or the act or omission of some person or persons other than defendant or its agents, the bottle of beverage from which plaintiff was drinking could not and would not have contained any foreign substance and could not and would not have produced any injury to plaintiff.

On the basis of the issues thus joined the case was tried to a jury which, in answer to the special questions submitted it by the court, found the bottle of Coca Cola contained a harmful foreign substance, that is, particles of a kola nut, when it was removed from the vending machine and at the time plaintiff drank from it, which was not there as a result of any act of plaintiff; that such substance was the sole, direct and proximate cause of plaintiff's illness or aggravation of his pre-existent condition. The jury also returned a general verdict for plaintiff in the sum of $662.50, for which judgment was entered.

Defendant appeals from an order of the trial court overruling its demurrer to plaintiff's evidence and from an order overruling its motion for a new trial.

Defendant first contends the trial court erred in overruling its demurrer to plaintiff's evidence. The argument is that plaintiff failed to prove the breach of implied warranty in not showing the beverage was harmful, deleterious and unwholesome. Approaching this phase of the appeal we must bear in mind our constant holding that in considering the sufficiency of evidence tested by demurrer thereto, the evidence and every reasonable inference to be drawn therefrom must be liberally construed in favor of the party adducing it. Such evidence will not be weighed, even though there may be a conflict between the witnesses or in direct and cross-examination thereof. When so considered, if there is any evidence which sustains plaintiff's case, then the demurrer should be overruled and the matter submitted to a jury. Marshall v. Bailey, 183 Kan. 310, 314, 327 P.2d 1034; Harvey v. Palmer, 179 Kan. 472, 477, 478, 296 P.2d 1053; Messinger v. Fulton, 173 Kan. 851, 252 P.2d 904; West's Kansas Digest, Appeal & Error, k927 , and Trial, § 156 , ; 1 Hatcher's Kansas Digest [Rev. Ed.], Appeal and Error, § 488.

An examination of plaintiff's evidence discloses that on the morning in question he, having had no breakfast and having eaten nothing before and not eating anything at the time, was in the company of Mr. Smith and Mr. Girard in a garage in Arma, where he was handed an open bottle of Coca Cola from a dispensing machine by Mr. Smith about which he noticed nothing unusual, but on the third swallow he swallowed some foreign particle and there was something in his mouth which he 'more or less flipped * * * back in the bottle' (he had by then consumed about one-half of its contents); whereupon, two minutes later he became ill and he and the other men 'discussed it a little bit' and 'looked in the bottle'; upon examination he found a substance 'floating around the bottom of the bottle,' which appeared to be 'a jelly substance like, of slimy like serum, mud or a bug or something'; he vomited and within five minutes vomited again, and thereafter went home. This condition continued that day and evening, when he called his doctor, who prescribed a medicine for his illness. His evidence further revealed he later picked up the half-empty bottle of cola from the garage and turned it over to his attorney.

Mr. Smith, operator of the garage, who had opened the bottle of Coca Cola, testified that as plaintiff took a drink from the bottle he spit something on the floor which was some of the substance Smith saw in the bottle; that there was 'something in the bottle and he [plaintiff] did get a slug of it'; that 'it was a jelly substance' and 'looked a lot like a wad of matter * * *white matter,' that it was a stringy substance floating in the bottom of the bottle.

Mr. Heckert, a Chemist, some two weeks later examined the liquid remaining in the bottle of Coca Cola and filtered off 'some material floating in it,' which 'appeared to be a nut of some kind,' covered by 'a husk or some cellulose material,' and tentatively identified it as a kola nut, which comes out of the kola bean from which extract is normally made. He testified, 'Kola nuts are rather rare around this part of the country. It is tropical fruit. We don't know too much about it.' He also found that some fermentation had taken place 'so there was a little, possibly yeast or something of that kind in the bottle.' His analysis report stated, 'It would appear that any untoward effects produced by drinking this bottle of liquid were largely psychological.' He explained 'psychological' as distinguished from 'actual toxics.'

Plaintiff's physician, Doctor Lance, testified that in July, 1956, he had treated plaintiff for thrombosis hemorrhoid, which he 'incised under local anaesthesia and removed a clot and treated him conservatively'; that...