Claxton Coca-Cola Bottling Co. v. Coleman

• Decision Date: 12 November 1942
• Docket Number: 29695.
• Parties: CLAXTON COCA-COLA BOTTLING CO. et al v. COLEMAN.
• Court: Georgia Court of Appeals

22 S.E.2d 768

68 Ga.App. 302

CLAXTON COCA-COLA BOTTLING CO. et al v. COLEMAN.

No. 29695.

Court of Appeals of Georgia, Division No. 2.

November 12, 1942

P M. Anderson, of Claxton, for plaintiffs in error.

H.H Elders and R. N. Odum, both of Reidsville, for defendant in error.

SUTTON Judge.

This was a suit by E. Z. Coleman against the Claxton Coca-Cola Bottling Company and H. D. Davis for damages alleged to have been sustained by the plaintiff as a result of his drinking a portion of a bottle of unclean and polluted coca-cola. It was alleged that the plaintiff purchased from the defendant Davis at his place of business a bottle of coca-cola which was manufactured and bottled by the bottling company, and that when he opened the bottle and drank a portion of the contents thereof he discovered that there was something wrong with it, and upon examination found that the bottle of coca-cola had in it a considerable quantity of kerosene and pine needles; that shortly after drinking the coca-cola he became ill, suffered severely from nausea for several days, and was confined to his bed for two weeks as a result of drinking the coca-cola, and that he also suffered severe pains in his stomach and that his heart was seriously affected as a result of said illness; that he was wholly unable to do any work for a period of two months, and on account of his pain and suffering, loss of time, permanent impairment of his health, resulting from his drinking the polluted coca-cola, all of which was caused by the alleged negligence of the defendants, he sued for a stated sum in his petition. It was alleged that the bottling company was negligent in failing to properly clean and sterilize the bottles in which said product was contained, in using and filling a bottle with said product that had not been properly cleaned and sterilized, in furnishing to their customers for sale to the public a product that was unsanitary, unclean and polluted as set forth in the petition, and that the said bottling company knew or could have known by the exercise of ordinary care and diligence that said coca-cola was thus unsanitary, unclean, and polluted. It was alleged that the defendant Davis was negligent in selling and offering for sale a product that was unclean, polluted, and unsanitary and in failing to ascertain, before offering the said bottle for sale, that it was unclean, polluted, and unfit for consumption.

The defendants demurred generally and specially to the petition. The demurrers were overruled, and the defendants filed exceptions pendente lite to the judgment overruling the demurrers. The defendants filed an answer, denying liability. The case was tried and resulted in a verdict and judgment for the plaintiff.

1. No question is presented for decision by this court by the exceptions pendente lite to the judgment overruling the defendants' demurrers, as there is no assignment of error in the bill of exceptions on the exceptions pendente lite nor upon the rulings complained of therein, although the exceptions pendente lite are specified in the bill of exceptions and sent up to this court as a part of the record in the case. Virginia Lumber Corp. v. Atlantic C. L. R. Co., 46 Ga.App. 534, 168 S.E. 323; McDuffie County v. Gunn, 50 Ga.App. 198(1), 177 S.E. 363; Lanier v. Council, 179 Ga. 568(1), 176 S.E. 614; Allen v. E. Mason Roberts Enterprises, 181 Ga. 99, 181 S.E. 578; McIntire v. McQuade, 190 Ga. 438(1), 9 S.E.2d 633; Id., 63 Ga.App. 116, 10 S.E. 2d 233.

2. The assignment of error in the bill of exceptions is to the judgment overruling the defendants' motion for new trial, which contained only the usual general grounds. So, under the record as here presented, the question for determination is whether or not the verdict was authorized by the evidence. To determine this question it will not be necessary to set out or refer to all of the evidence, but only to certain portions of it.

There was testimony by the plaintiff that he lived at Cobbtown, Georgia, and that the defendant, H. D. Davis, operated a mercantile store there, and that he often bought coca-cola from him and that Davis bought his supply of coca-cola from the bottling company; that about 6:30 in the morning on November 1, 1940, he went to Davis' place of business and bought a bottle of coca-cola from him, and that when he had drunk about a third of the bottle of coca-cola he discovered that there was something wrong with it and called Davis' attention to it and told him there was something wrong with it, that it tasted like kerosene, and that Davis told him to set the bottle down, which he did; that he became nauseated immediately after drinking the portion from the bottle of coca-cola, and that he went to breakfast in about thirty minutes or so, but was not able to eat any breakfast, and that he was nauseated and vomited for some two or three days and was unable to eat anything during that time; that he did not examine the bottle at the time of drinking the portion therefrom but went back to the store in a short time thereafter and examined the bottle and it smelled like kerosene and had pine needles in it, and Davis said to him at that time "Look what you have drunk off of"; that he left the bottle and its contents with Davis and asked him to keep it for him. He testified that as a result of drinking from the bottle of coca-cola he was very sick for some two or three weeks, that it affected his heart, and that he was unable to do any work for a period of some two or three months thereafter, and that he went to see Dr. Strickland and received medical treatment from him.

Ouida Mae Buckner, an employee at Davis' store, testified for the plaintiff that she was working for Davis on November 1 1940, and that she got to the store that morning a few minutes after the plaintiff had drunk from the bottle of coca-cola in question; that Davis showed her the bottle that the plaintiff had drunk out of, and...