Coca Cola Bottling Co. of Shelbyville v. Creech

• Decision Date: 21 October 1932
• Citation: 245 Ky. 414,53 S.W.2d 745
• Parties: COCA COLA BOTTLING CO. OF SHELBYVILLE v. CREECH.
• Court: Kentucky Court of Appeals

53 S.W.2d 745

245 Ky. 414

COCA COLA BOTTLING CO. OF SHELBYVILLE v. CREECH.

Court of Appeals of Kentucky

October 21, 1932

Appeal from Circuit Court, Franklin County.

Action by Ella Reid Creech against the Coca Cola Bottling Company of Shelbyville, Ky. From a judgment in favor of plaintiff defendant appeals.

Affirmed.

Polk South, Jr., of Frankfort, and Eugene R. Attkisson, of Louisville, for appellant.

Leslie W. Morris, of Frankfort, for appellee.

DRURY C.

Appellant seeks to reverse a judgment for $500 obtained against it by Ella Reid Creech. This is a case like Nehi Bottling Co v. Thomas, 236 Ky. 684, 33 S.W.2d 701.

Dow Guy is a merchant, his store is just outside the city of Frankfort, he keeps Coca-Cola for sale, he buys this from the appellant and had purchased one lot on January 2, 1931, and another lot on January 9th. This he placed in his ice box to have it in readiness for sale.

The plaintiff, Ella Reid Creech, lives about a quarter of a mile from this store and about 6 p. m. on the date last named sent her sister Tillie to this store to get her two bottles of Coca-Cola. She got them and handed one to the plaintiff. The room was dark. Plaintiff opened the bottle and drank it. She became very sick and began to vomit. A light was turned on and she discovered a partially decomposed mouse in the bottle. Dr. Darnell was called and pumped and washed out her stomach. Later she called her regular physician Dr. Knoppe and he was still treating her on April 28, 1931, when this case was tried. He says in his testimony: "I found her very sick and in a terrible paroxysm of nausea. I can't say just how long she vomited, but she vomited off and on for over a week; had to have sedatives every day to keep her down. It happened on the 9th of January. This is late in April. Her abdomen still swells and she still has a great deal of trouble, she is continuing to lose weight. I think she has lost something like thirty-one or thirty-two pounds."

He was asked if her injury was permanent and he said: "I can't say absolutely as to that because that is hard to say. I just don't know. I hate to say that it will be permanent, and I hate to say that it won't be, for I can't tell."

The evidence for appellant disclosed a practice of most scrupulous care in the bottling of its products, so that it would seem it would be impossible for this mouse to have been in this bottle at the close of that process. All ...