Coca-Cola Bottling Works v. Lyons

• Decision Date: 31 January 1927
• Docket Number: 26133
• Citation: 145 Miss. 876,111 So. 305
• Court: Mississippi Supreme Court
• Parties: COCA-COLA BOTTLING WORKS v. LYONS. [*]

111 So. 305

145 Miss. 876

COCA-COLA BOTTLING WORKS v. LYONS. ^[*]

No. 26133

Supreme Court of Mississippi

January 31, 1927

Division B

Suggestion of Error Overruled Feb. 28, 1927.

APPEAL from circuit court of Coahoma county, Second district, HON WM. A. ALCORN, JR., Judge.

Action by Mrs. Fred Lyons against the Coca-Cola Bottling Works. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

John W. and Charles W. Crisler, for appellant.

I. An implied warranty is contractual in nature and inures only to the benefit of the parties to the contract. This is universal law. Being recognized as such by all courts, we will refrain from argument or citation of authority in its support.

II. Non-purchasers do not receive the benefit of implied warranty, and must rely upon negligence to sustain their action. 26 C. J. 785, see note 87; Gearing v. Berkson, 223 Mass. 257, 111 N.E. 785, L. R. A. 1916D, 1006; Bishop v. Weber, 139 Mass. 411, 1 N.E. 154, 52 Am. Rep. 715; Ketterer v. Armour & Co., 247 F. 921, L. R. A. 1918D 798.

III. Care in bottling may be shown in evidence either to conclusively refute negligence, or to create a question for the jury as to whether the bottler was negligent. Liggett & Myers Tob. Co. v. Cannon, 132 Tenn. 419, L. R. A. 1916A 940, 178; S.W. 1009; Crocker v. Baltimore Dairy Lunch Co., 214 Mass. 177, 100 N.E. 1078, Ann. Cas. 1914B 884; Pantaze v. West, 7 Ala.App. 599, 61 So. 42.

IV. The mere finding of a foreign substance in a bottled beverage is not sufficient to make out a prima-facie case of negligence; and the bottling of a foreign substance in a beverage is not in itself sufficient to establish negligence. Sheffer v. Willoughby, 163 Ill. 518, 34 L. R. A. 464, 54 A. S. R. 483, 45 N.E. 253; Crocker v. Baltimore Dairy Lunch Co., 214 Mass. 177, Ann. Cas. 1914B 884, 100 N.E. 1078; Rainwater v. Coca Cola Co., 131 Miss. 315, 95 So. 444.

V. A plaintiff must recover, if at all, upon its pleadings; hence, a plaintiff cannot recover ex delicto in a suit based on an alleged right ex contractu for breach of warranty. This rule, like our first proposition of law, needs no argument or citation of authority; hence, we will content ourselves with the mere statement of the principle.

F. H. Montgomery, for appellee.

I. This is an action ex contractu based upon a breach of an implied warranty as to the fitness and suitableness of a bottle of Coca Cola for human consumption, manufactured by the defendant, and sold to a retail dealer, to be by him resold to the public. That the suit was properly brought on contract can no longer be questioned in this state. Jackson Coca Cola Bottling Co. v. Chapman, 106 Miss. 864; Pillars v. Reynolds Tobacco Co., 117 Miss. 490; Rainwater v. Hattiesburg Coca Cola Bottling Co., 1331 Miss. 315; Grapico Bottling Co. v. Ennis, 140 Miss. 502, reannounces the doctrine of implied warranty running from a manufacturer to an ultimate consumer, who purchased of a middleman.

It is the contention of counsel for defendant that because the plaintiff did not actually pay for the drink, she was not the purchaser, and no warranty of quality existed in her favor from the manufacturer.

It appears that the plaintiff and her companion went to the retail store and ordered the drinks. The retailer delivered the drinks to them. Nothing was said as to who should pay for the drinks, as between the two purchasers. When the delivery was made to them, there was an implied obligation upon the part of both ladies, viewed from a strictly legal standpoint, to pay for their respective drinks the fair cash market price thereof. If neither had paid at the time, each would undoubtedly have been liable for the goods actually accepted by them respectively and consumed by them. The obligation was implied upon each of the ladies to pay for her drink the usual market price.

The fact that Mrs. Jackson, the companion of plaintiff, voluntarily discharged plaintiff's legal obligation to pay for her drink, could not be construed so as to change the relation of seller and purchaser existing between her and the retailer.

This is the fundamental error in the position taken by counsel for the defendant. The payment by Mrs. Jackson for the drink bought by Mrs. Lyons was merely a voluntary discharge of Mrs. Lyons' implied obligation to pay for it, arising out of her contract of purchase, and not the contract of purchase. State v. Austin (Miss.), 23 So. 34, 35 Cyc. 25; 35 Cyc. 49; Porter v. Title G. & S. Co., 27 L. R. A. (N. S.) 111; Town of Manitou v. First Nat'l Bank, 86 P. 75, 37 Col. 344; Ketterer v. Armour & Co., 247 F. 921, L. R. A. 1918D 798, is not in point, because the action there was in tort.

In view of the express recommendation and warranty to the public, as admitted by the manager of defendant company, is there any reason to limit the warranty to the individual who actually buys the product and exclude others who become consumer and who do not sustain any contractual relation to the manufacturer? Common knowledge of current customs informs the court that the immediate purchasers of food products from the retailer, constitute a small per cent of the actual consumers of the product. This is well known to the manufacturer. No plausible reason can be assigned for denying the injured member of society the right to invoke the benefit of the warranty. Mazetti v. Armour & Co., 135 P. 633, 48 L. R. A. (N. S.) 213; 6 Words and Phrases 5606; 3 Words and Phrases (2nd Series) 1217; Johnson v. Stebbins-Thompson Realty Co. (Mo.), 76 S.W. 1021; Withes v. Wabash R. R. Co. (Mo.), 99 S.W. 34; Towle v. Suante (Ill.), 92 N.E. 967.

The numerous authorities cited in Words and Phrases disclose that "privity" consists in a mutual or successive relationship to the same rights of property, and may arise by gift as well as by contract.

If the implied warranty in this case "runs with the sale and passes with the title," why would not the donee of a bottle of beverage who acquired the title to same of a purchaser of an intermediate retailer who stood in privity to the manufacturer, likewise stand in privity to the manufacturer? This appears to be the holding in Grapico Bottling Co. v. Ennis, supra, and such a holding is well founded in principle.

II. Care or negligence of the defendant in manufacturing and bottling the beverage in question in this case was not an issue under the pleadings. Rainwater v. Coca-Cola Bottling Co., 131 Miss. 315.

Since this court has adopted the rule that breach of implied warranty and not negligence is the proper basis for the action, decisions of foreign jurisdictions based on negligence, cited by appellant, cannot furnish authority in respect to the nature or quantity of proof necessary. Additional authorities in support of the theory of appellee are: N. O., J. & G. N. R. R. Co. v. Hurst, 36 Miss. 660-666; Miss. Cent. R. R. Co. v. Coruth, 51 Miss. 77; N. & M. V. R. R. Co. v. Cobb, 94 Miss. 561; A. & V. R. R. Co. v. McGee, 117 Miss. 370; N. O. & N. E. R. R. Co. v. Jackson, 140 Miss. 375.

Argued orally by J W. Crisler, for appellant, and F. H. Montgomery, for appellee.

OPINION

HOLDEN, P. J.

The Coca-Cola Bottling Works appeals from a judgment for two thousand five hundred dollars recovered by the appellee, Mrs. Fred Lyons, as damages for personal injuries received by her on account of drinking a portion of a bottle of Coca-Cola which contained a quantity of broken glass.

We shall state only such of the facts as are necessary to an understanding of the decision of the case. The appellee, Mrs. Lyons, in company with her friend, Mrs. Jackson, drove in an automobile, to the Belen Drug Store, at Belen, in front of which they parked, and ordered drinks to be brought to them. The exact testimony on this particular point is that, "We drove up in front of the drug store, and ordered cokes." A clerk in the drug store brought two bottles of Coca-Cola to the ladies, which they proceeded to drink, and Mrs. Lyons swallowed a quantity of broken glass which was in the bottle of Coca-Cola she drank from.

The bottle of Coca-Cola in question in this case had been manufactured, bottled, sealed, and delivered to the drug store to be sold to the public in the retail trade. The bottle was unsealed, or we may say uncapped, by the clerk in the drug store just before he delivered it to Mrs. Lyons. The above-stated testimony in the record is undisputed.

When the two ladies drove up and stopped in front of the drug store, Mrs. Jackson was the one who ordered the drinks, and she also paid for them; but the drinks were ordered for both of the ladies, and a bottle was delivered to each of them.

Mrs. Lyons suffered severe internal injuries on account of swallowing the broken glass in the Coca-Cola, and she testified that she suffered for many months from the effects of the glass in her stomach. There was about a tablespoonful of the broken glass in the bottle.

The recovery is based solely upon the theory that the Coca-Cola company was liable upon an implied warranty that the bottled drink was pure and wholesome, and that the fact that there was glass in the bottle when it was sealed and put upon the market for the public created liability for the injury to the one who drank it, regardless of whether the manufacturer was guilty of negligence or not. This rule is established in this state by the cases of Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791; Rainwater v. Coca-Cola Co., 131 Miss. 315, 95 So. 444; and Grapico Bottling Works v. Ennis, 140 Miss. 502, 106 So. 97, 44 A. L. R. 124.

This being a case, then, grounded upon the theory of the breach of an implied warranty, we may discard any question arising in the record with reference to the right to recover on account of the negligence...