Coca-Cola Bottling Co. of Jonesboro v. Misenheimer

• Decision Date: 09 November 1953
• Docket Number: COCA-COLA,No. 5-181,5-181
• Citation: 261 S.W.2d 775,222 Ark. 581
• Parties: BOTTLING CO. OF JONESBORO v. MISENHEIMER.
• Court: Arkansas Supreme Court

Page 775

261 S.W.2d 775

222 Ark. 581

COCA-COLA BOTTLING CO. OF JONESBORO v. MISENHEIMER.

No. 5-181.

Supreme Court of Arkansas.

Nov. 9, 1953.

Frierson, Walker & Snellgrove, Jonesboro, for appellant.

Bon McCourtney and Claude B. Brinton, Jonesboro, for appellee.

MILLWEE, Justice.

This appeal is from a judgment in favor of appellee, Mrs. Edward Misenheimer, against appellant Coca-Cola Bottling Company of Jonesboro, Arkansas, in the sum of $50 damages allegedly sustained by drinking from a bottle of Coca-Cola which contained a dead mouse.

At the conclusion of the testimony on behalf of plaintiff, and at the close of all the evidence, appellant requested a directed verdict in its favor, without indicating to the trial court the basis for such requests. Both requests were denied. The only assignments of error in the motion for new trial are: (1) the court erred in refusing appellant's requests for an instructed verdict, and (2) that the verdict is inconsistent with the instructions given. The question of the sufficiency of the evidence was not mentioned either at trial or in the motion for new trial.

For reversal, appellant says the case was tried under the doctrine of res ipsa loquitur, and it is now contended that the evidence was insufficient to meet the requirements of the doctrine because it was not shown that the bottle from which appellant drank was then in the same condition as when it left the exclusive custody and control of appellant. The assignment that the court erred in not directing a verdict for appellant must be overruled, if there is any substantial evidence, viewed in the light most favorable to appellee, to support the verdict. Arkansas Power & Light Company v. Connelly, 185 Ark. 693, 49 S.W.2d 387.

The testimony on behalf of appellee discloses that she lives with her husband and their three children in the little village of Waldenburg, in Poinsett County, near the W. K. Neeley Company, where the husband is employed as a farm implement mechanic. In connection with the implement store, Neeley Company also operates a service station which handles soft drinks bottled by appellant. Appellee's husband quit work about 6 p. m. on August 17, 1952, when he purchased from the service station a case of assorted soft drinks containing several Coca-Colas bottled by appellant. The bottles remained sealed and capped while in the possession of the service station, and in the same condition when brought into the home by appellee's husband, shortly after 6 p. m. Appellee immediately put the drinks into the refrigerator.

About 9 o'clock the following morning, appellee opened drinks for some children and a Coca-Cola for herself, using a bottle opener to remove the caps. Upon drinking one swallow of Coca-Cola, she immediately became nauseated and started vomiting. Her son then pointed out to her that the bottle contained a mouse, which was whole at that time but had a foul odor. It was in a state of decomposition when the bottle was introduced in evidence at the trial. Appellee was treated several times by a physician who testified as to her illness.

Although appellant has not abstracted the instructions, we will assume the case was tried on the theory of res ipsa loquitur, since there was no direct or affirmative proof of negligence on the part of appellant. We have held that under the doctrine of res ipsa loquitur a plaintiff must show that there was no opportunity for the contents and character of a bottled drink to have been changed from the time it left defendant's hands until the time of the alleged injury. See Coca-Cola Bottling Company of Fort Smith v. Hicks, 215 Ark. 803...