Coast Coca-Cola Bottling Co. v. Bryant

• Decision Date: 01 June 1959
• Docket Number: No. 41185,COCA-COLA,41185
• Citation: 112 So.2d 538,236 Miss. 880
• Parties: COASTBOTTLING COMPANY v. Annie Mae BRYANT.
• Court: Mississippi Supreme Court

Page 538

112 So.2d 538

236 Miss. 880

COAST COCA-COLA BOTTLING COMPANY v. Annie Mae BRYANT.

No. 41185.

Supreme Court of Mississippi.

June 1, 1959.

Wallace & Greaves, Gulfport, for appellant.

Morse & Morse, Gulfport, for appellee.

HALL, Justice.

This suit was brought by the appellee against the appellant for the recovery of damages because of a roach in a bottle of Coca-Cola manufactured by appellant and from a judgment in her favor the bottling company appeals.

Under the evidence there is no question that the Coca-Cola in question was manufactured or bottled by the appellant. The appellee purchased the same from a Coca-Cola vending machine at Gulfport Laundry where she was employed as a seamstress, and at about 9:30 o'clock in the morning she and other seamstresses, at the time for a coffee break, purchased Coca-Colas from this vending machine. The appellant had deivered the same to the Gulfport Laundry and it was placed in a room about fifty feet from the vending machine and the machine was filled by an employee at the laundry and not by the appellant or any of its employees. After partaking of the beverage the appellee became nauseated and vomited. She was carried to a doctor's office by someone at the laundry and was then carried back to the laundry but she remained ill and finally called a taxicab to carry her home. On the way home she had to stop and vomit three or four different times and according to the testimony she continued to be ill and nauseated for a considerable period of time.

The appellant introduced its sales manager who, by the use of a chart, explained the process of bottling and the process of inspections which were employed in the appellant's plant, but there was no direct testimony that the bottle in question was ever inspected.

The appellant divides its argument into three points. One is that no negligence was proved and that a directed verdict should have been given. The second is that the doctrine of res ipsa loquitur has no application to the instant case. We will discuss these two points together. The appellant relies heavily on the case of Jordan v. Coca-Cola Bottling Company of Utah, 117 Utah 578, 218 P.2d 660, 52 A.L.R.2d 108. In that case the Supreme Court of Utah held that where persons other than employees of the bottling company had access to the beverage, the burden was on the plaintiff to produce evidence of negligence on the part of the defendant and in this connection that the plaintiff must show that no third person had the opportunity for tampering with the bottle. The appellant also cites cases to the same effect from Tennessee, Louisiana, North Carolina and Illinois.

The theory upon which the appellant relies has never been adopted by this Court. One of the recent cases is Laurel Coca-Cola Bottling Co. v. Hankins, 222 Miss. 297, 75 So.2d 731, 732. In that case this Court said: 'It was conclusive that the defendant bottled the Coca-Cola, and there was no proof that it was tampered with between the time of bottling and drinking.' This Court in effect held that the burden was on the defendant to prove that the drink had been tampered with. In the Hankins case the bottle in question was carried to State College for analysis and the Court said: 'Prof. S. J. Few, a chemist at the college, analyzed the remaining contends in the bottle. He made known his findings to Dr. M. P. Etheredge, his superior, who called Dr. Coursey (plaintiff's physician) over the telephone that same evening. However, the substance of that report is not in the record, although several days later, on April 9, 1952, he wrote a letter to Mr. Hankins about the analysis as follows: * * *

'Prof. Few testified concerning his analysis. He said that coca cola contains phosphoric acid, and that acid iron earth water contains ferrous sulphate, and that when these two substances are combined, they form iron phosphate and leave a quantity of sulphuric acid. * * *.

'The defense was twofold: (1) Defendant's method of bottling was so efficient that it was impossible for acid iron earth water to get into the bottle, and (2) the plaintiff was passing through the menopause; she was troubled with nausea prior...