Chenault v. Houston Coca Cola Bottling Co.

• Decision Date: 24 September 1928
• Docket Number: 26302
• Citation: 151 Miss. 366,118 So. 177
• Court: Mississippi Supreme Court
• Parties: CHENAULT v. HOUSTON COCA COLA BOTTLING CO. [*]

118 So. 177

151 Miss. 366

CHENAULT v. HOUSTON COCA COLA BOTTLING CO. ^[*]

No. 26302

Supreme Court of Mississippi

September 24, 1928

Division B

FOOD. Beverage manufacturer owes duty of preventing mixture of foreign substance with leverage through bottling, to general public as well as retailer.

Manufacturer bottling and selling to retail trade beverage represented to be refreshing and harmless, was under legal duty to see that no foreign substance was mixed with beverage in process of bottling, and owes such duty to general public, for whom drinks are intended, as well as to retailer.

Hon. T E. PEGRAM, Judge.

APPEAL from circuit court of Chickasaw county, First district, HON T. E. PEGRAM, Judge.

Action by T. C. Chenault against the Houston Coca Cola Bottling Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Judgment reversed and remanded.

James W. Cassedy, Jr. and Rush H. Knox, for appellant.

The case of Coca Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305, recognized the right to sue and to recover damages in a case similar to the one at bar. It was based only upon the breach of an implied warranty without reference to the right to recover on account of the negligence of such manufacturer.

It appears from the opinion rendered in this case, therefore, that where a consumer purchases a beverage from a retailer who in turn had purchased it from the manufacturer, that the title goes with the purchases so made, and that the implied warranty runs with the title. It is manifest, therefore, that the contention that there is no privity between the consumer and the manufacturer is without merit, and further that the manufacturer does, in fact, impliedly warrant that the bottle drink was pure and wholesome. The rule has been established in this state by the cases of Coca Cola Bottling Company v. Chapman, 105 Miss. 864, 64 So. 791; Rainwater v. Coca Cola Company, 131 Miss. 315, 95 So. 444; Grapico Bottling Works v. Ennis, 140 Miss. 502, 106 So. 97, 44 A. L. R. 124, that the manufacturer is liable upon an implied warranty that a bottle drink is pure and wholesome when it is manufactured and put upon the market by the manufacturer for the public, for the injury to the consumer because of foreign or harmful substances, regardless of whether the manufacturer was guilty of negligence or not.

From the authorities above reviewed, it appears well settled, that the declaration filed by the appellant against the appellee states a good cause of action and that the demurrer thereto should have been overruled.

Creekmore & Creekmore, for appellee.

The judgment of the lower court sustaining a demurrer to the declaration should be reversed unless the cases of Coca Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305; Grapico Bottling Works v. Ennis, 140 Miss. 502, 106 So. 97; Rainwater v. Coca Cola Company, 131 Miss. 315, 95 So. 404; and Coca Cola Bottling Company v. Chapman, 106 Miss. 864, 64 So. 791, are overruled. The sole question in this case is whether the liability of a manufacturer of beverages to an ultimate consumer is based on negligence in the process of manufacture or on an implied warranty by the manufacturer that his beverage is wholesome. It is generally agreed that a manufacturer of beverages is directly liable to a consumer for an injury caused by the unwholesomeness of the beverage although purchased by the consumer from a retail dealer and not from the manufacturer or bottler; by some courts liability is placed on the ground of negligence while other courts base liability on the doctrine of implied warranty. By far the weight of authority in America is that there is no liability by reason of implied warranty, but any such liability is grounded solely on negligence in the preparation of the beverage by the manufacturer. This is the more reasonable rule, and, as was said by the supreme court of Tennessee in a recent case, permits the innocent to escape while exacting reparation from the negligent and careless manufacturer. We realize that it is an uphill undertaking to get the court to overrule the line of decisions beginning in 1914 with the case of Jackson Coca Cola Company v. Chapman, 106 Miss. 864, but believing that the rule announced by these cases is unsound and that the court in adopting the doctrine of implied warranty inadvertently fell into error and failed to appraise the full force and real effect of the case relied on as authority for this doctrine, we venture to analyze this line of cases together with the authorities from other jurisdictions on which these cases are bottomed, and to respectfully ask the court to reconsider the whole question and put the basis of liability of a manufacturer or bottler to the ultimate consumer on the ground of negligence.

The opinion in the Rainwater case is the first decision in which our court definitely committed itself to the doctrine of implied warranty in this type of case and that opinion is bottomed on the court's construction of the decision in Watson v. Augusta Brewing Company, from the supreme court of Georgia and Pillars v. Reynolds Tobacco Company, from the supreme court of Mississippi.

We respectfully submit that the court wholly misconceived the scope and effect of both of these decisions, and that while both of them bottomed the liability of the manufacturer or bottler entirely on negligence, yet they were cited as supporting the doctrine of implied warranty.

Many cases might be cited holding that there is no implied warranty by the manufacturer running to the ultimate consumer of food or beverages, but these cases will all be found collated in notes to cases heretofore cited, and in the note in L. R. A. to the case of Crigger v. Coca Cola Bottling Company, L. R. A. 1916B, page 877, and the rule will be found stated in paragraph 244 of Williston on Sales,...