Coca-Cola Bottling Co. v. Barksdale

• Decision Date: 09 November 1920
• Docket Number: 2 Div. 214
• Citation: 17 Ala.App. 606,88 So. 36
• Parties: COCA-COLA BOTTLING CO v. BARKS-DALE.
• Court: Alabama Court of Appeals

88 So. 36

17 Ala.App. 606

COCA-COLA BOTTLING CO v. BARKS-DALE.

2 Div. 214

Court of Appeals of Alabama

November 9, 1920

Appeal from Circuit Court, Dallas County; B.M. Miller, Judge.

Action by H.L. Barksdale against the Coca-Cola Bottling Company for damages for personal injuries received from drinking an imperfect bottle of Coca-Cola. Judgment for the plaintiff in the sum of $500, and defendant appeals. Affirmed.

Arthur M. Pitts, of Selma, for appellant.

Samuel F. Hobbs, of Selma, for appellee.

MERRITT J.

The judgment from which the appeal is taken in this case was rendered against the appellant in a suit for damages wherein it was alleged that appellant, being engaged in the business of bottling and selling a beverage known as Coca-Cola, did so negligently conduct its business as to bottle and sell a bottle of said beverage which contained a decomposed rat or mouse; a part of the contents of the bottle being drunk by appellee, who was made sick. The case was submitted to the jury on amended count No. 1, and the sufficiency of this amended count was questioned by demurrers to the same. There was no error in overruling these demurrers. The appellant being engaged in the business of bottling and selling a beverage for human consumption, was bound to use due care to see that the beverage bottled and sold was such as could be partaken of without causing sickness or endangering human life or health because of its unwholesome and deleterious condition; and for any negligence in this particular, in failing to observe this duty, which proximately resulted in injury to any one, the appellant would be responsible. See recent case of Chysky v. Drake Bros. Co., 192 A.D. 186, 182 N.Y.Supp. 459; Craft v Parker Webb Co., 96 Mich. 245, 55 N.W. 812, 21 L.R.A. 139; Bishop v. Weber, 139 Mass. 411, 1 N.E. 154, 52 Am.Rep. 715; Huset v. Case Threshing Mach. Co., 120 F. 865, 57 C.C.A. 237, 61 L.R.A. 303; Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A. (N.S.) 1178, 110 Am.St.Rep. 157; Pantaze v. West, 7 Ala.App. 599, 61 So. 42.

What the defendant did and how he did it and what he failed to do are generally better known to the defendant than to the plaintiff; and hence it is that in such cases a general form of averment is sufficient. M. & O.R.R. Co. v. George, 94 Ala. 214, 10 So. 145; Armstrong v. Montgomery St. R. Co., 123 Ala. 233, 26 So. 349.

Where a duty to exercise care is shown, a failure to perform the duty and negligence which causes the injury complained of may be well averred in the most general language. Postal Tel. Co. v. Jones, 133 Ala. 226, 32 So. 500; L. & N.R.R. v. Jones, 83 Ala. 376, 3 So. 902; L. & N.R.R. v. Marbury Lumber Co., 125 Ala. 237, 28 South, 438, 50 L.R.A. 620.

If there was any error in sustaining appellee's demurrers to appellant's plea No. 2, that of contributory negligence, it was without injury, for the reason that appellee's demurrers were overruled to appellant's amended plea of contributory negligence, which plea was substantially the same as the one to which demurrers were sustained.

We do not think the trial court was in error in permitting the introduction of the bottle and the decomposed rat, over the appellant's objections. The appellee identified the bottle and its contents. The testimony is not to be excluded because the witness does not speak with positive assurance. Mitchell v. State, 94 Ala. 68, 10 So. 518; Turner v. McFee, 61 Ala. 468; Walker v. State, 58 Ala. 393; 1 Greenleaf on Evidence, § 440.

It fairly appears from the cross-examination of the plaintiff that defendant's counsel asked the witness in regard to his answers to several interrogatories propounded to him by the defendant, and that on redirect examination plaintiff's counsel asked the witness the following question:

"I will ask you to look at this copy of the interrogatory which you answered in this case. In answer to the interrogatory propounded by Mr. Pitts, when did you eat your next meal after you drank Coca-Cola. Please state to the jury what your answer was."

To this question the defendant objected on the ground that the same was irrelevant, immaterial, and inadmissible. The court overruled the objection.

As said in the case of So. Ry. Co. v. Hubbard, 116 Ala. 387, 22 So. 541:

"It is the settled construction of the statutes which authorize the filing of interrogatories to the opposite party, and offering the answers into evidence, that only the party taking them can make them evidence."

Yet we think that, when the party propounding them questions the witness as to what his answer was to a certain interrogatory, certainly as to the answer to the interrogatory inquired about, the opposite party may cross him as to his answer, and that an examination of this kind on the part of the party propounding the interrogatory is to this extent, at least, an offering by him of the answers in evidence.

Furthermore, it will be seen that no objection was made to offering this part of the interrogatory, but the objection was to the question, and only general grounds of objection were assigned, and no motion was made to exclude the answer.

There was no error in overruling defendant's objection to the question:

"Have you ever drank Coca-Cola that tasted the same and had no ill effects from it?"

Besides, no motion was made to exclude the answer.

We know of no statute allowing a party to reserve an exception to what the court said in its oral charge "in substance," and a party desiring this court to pass on any part of the trial court's oral charge should reserve an exception to that particular part which is objectionable, and not to the substance of it, as appellant did in this case.

We hold that under the evidence in this case it was a question for the jury as to whether the plaintiff was entitled to damages for mental anguish and pain. Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A. (N.S.) 1178.

Whether or not the defendant was negligent in failing to use due care in seeing to it that the beverage bottled by it and sold to the public was fit for human consumption under the facts and the tendencies afforded by the evidence in this case was, we think, for the jury to determine. That the...