Coca Cola Bottling Works of Greenwood v. Simpson

• Decision Date: 03 November 1930
• Docket Number: 28868
• Citation: 130 So. 479,158 Miss. 390
• Court: Mississippi Supreme Court
• Parties: COCA COLA BOTTLING WORKS OF GREENWOOD v. SIMPSON

130 So. 479

158 Miss. 390

COCA COLA BOTTLING WORKS OF GREENWOOD v. SIMPSON

No. 28868

Supreme Court of Mississippi

November 3, 1930

Division B

1 SALES.

Manufacturer putting drink on market for human consumption breaches implied warranty, and is liable to person consuming drink for injury resulting, where drink is not fit for human consumption.

2 SALES.

Whether plaintiff suffered permanent injury by drinking beverage containing decomposed mouse or parts of rat held for jury.

3 WITNESSES. Plaintiff's testifying on cross-examination that he was willing for physician to testify did not constitute waiver of right to claim privilege (Hemingway's Code 1927, section 7455).

Code 1906, section 3695, Hemingway's Code 1927, section 7455, provides that all communications made to physician by patient under his charge are privileged, and that physician shall not be required to disclose same in legal proceeding except at instance of patient.

4. WITNESSES.

Testimony of plaintiff on cross-examination regarding communications made to physician is not "voluntary" in sense constituting waiver of privilege (Hemingway's Code 1927, section 7455).

5. APPEAL AND ERROR. Excluding evidence that defendant's machinery and methods for bottling beverage injuring plaintiff was modern and of the best held harmless.

Defendant by its evidence absolutely demonstrated that its machinery and methods rendered it all but impossible for any foreign substance to get into bottles during process of manufacture, but the evidence failed to show that it was impossible.

6. SALES.

Manufacturer was liable to consumer if foreign substance got into bottle of beverage during manufacture, regardless of efficiency of its machinery and methods.

7. TRIAL. Modifying instructions that, if evidence failed to show that foreign substance got into bottle containing beverage injuring plaintiff during manufacture, jury should find for defendant by adding "or sale" after "manufacture," held not error.

The evidence was undisputed that defendant manufactured bottle of beverage and delivered it sealed to retailer, and that defendant's seal was still on bottle when purchased by plaintiff's companion and was removed in presence of plaintiff and others immediately before plaintiff drank contents.

8. EVIDENCE.

It would not be presumed that foreign substance got into bottle of beverage through wrongful act of third person.

9. SALES.

Two thousand five hundred dollar verdict, where foreign substance in beverage caused ptomaine poisoning, held not excessive under evidence.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Le Flore county, HON. S. F. DAVIS, Judge.

Action by J. D. Simpson against the Coca Cola Bottling Works of Greenwood. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Osborn & Witty, of Greenwood, for appellant.

The privilege of a physician is one which the patient may always waive by his consent. Such waiver may be either express or implied. Once the privilege is waived, the waiver cannot be recalled. The evidence is made incompetent at the option of the patient only, and if he elects at any time to remove the seal from the lips of the witness, the evidence may be received.

5 Jones on Evidence (2 Ed.), pages 4096-4183.

Where a party has, himself, produced fragmentary parts of confidential communications, he so far surrenders the privilege that the other party may offer the remaining parts. A party cannot waive such a privilege partially. He cannot remove the seal of secrecy from so much of the privileged communications as makes for his advantage, and insist that it shall not be removed as to so much as makes to the advantage of his adversary, or may neutralize the effect of such as has been introduced.

2 Jones on Evidence (2 Ed.), page 1347; Supreme Camp, Woodmen of the World v. Farmer, 116 Miss. 626, 645, 77 So. 655.

If the physician can exclude from consideration the information which he obtained in a professional way, he may testify.

Estes v. McGehee, 133 Miss. 174, 97 So. 530; Dabbs v. Richardson, 137 Miss. 789, 102 So. 769.

Appellant admits that under the law it impliedly warrants as fit for human consumption drinks bottled by it, but this warranty does not extend to the delivery of bottled drinks.

Jackson Coca Cola Bottling Works v. Chapman, 64 So. 791, 106 Miss. 864; Rainwater v. Coca Cola Bottling Co., 131 Miss. 315, 95 So. 444; Grapico Bottling Co. v. Innis, 140 Miss. 502, 106 So. 97; Coca Cola Bottling Works v. Lyons, 145 Miss. 877, 111 So. 305; Chenault v. Coca Cola Bottling Works, 118 So. 176.

Denman & Breland, of Sumner, and S. L. Gwin and Means Johnston, both of Greewood, for appellee.

As a matter of law the patient himself knows more about what caused his illness than even the attending physician could possibly know.

Coca Cola Bottling Works v. Lyons, 111 So. 305.

Client's informal expression of willingness that the physician should testify, made on the stand and before consulting his attorney is not a waiver.

5 Wigmore on Evidence, Supp. (2 Ed.), sec. 2388; True H. L. Co. v. Fishburn, 101 Minn. 181, 111 N.W. 950; Roche v. Mason, 185 N.Y. 128, 75 N.E. 1007; 10 Enc. of Evidence, par. (c), p. 150.

The testimony of a plaintiff on cross-examination, as to communications made to his physician is not voluntary in such senses as to constitute a waiver of his privilege.

4 Jones on Evidence, page 569, sec. 761 (779).

When a manufacturer bottles and places upon the market a beverage such as Coca Cola for human consumption it impliedly warrants that it does not contain any foreign or obnoxious substance which, if taken into the stomach, would be injurious.

Dulaney v. Jones & Rogers, 100 Miss. 835, 57 So. 225; Coca Cola Bottling Company v. Chapman, 106 Miss. 864, 64 So. 791; Rainwater v. Hattiesburg Coca Cola Bottling Co., 95 So. 444; Coca Cola Bottling Works v. Lyons, 111 So. 305.

The verdict of the jury was not excessive.

Coca Cola Bottling Works v. Lyons, 111 So. 305; Quinn v. R. R. Co., 46 A. L. R. 1230.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Le Flore county to recover of the latter damages for a personal injury suffered by the former as the result of drinking a bottle of poisoned Coca Cola, put on the market by appellant. There was a trial, resulting in a verdict and judgment in favor of appellee in the sum of two thousand five hundred dollars. From that judgment appellant prosecutes this appeal.

Appellee drank a bottle of Coca Cola sold by the Gilmer Grocery Company, of Tutwiler. The evidence on behalf of appellee tended to show that in the bottle there was a decomposed mouse or parts of a rat, which appellee swallowed in drinking the Coca Cola before discovering its presence, resulting in ptomaine poisoning, from which appellee had not recovered at the time of the trial, which took place more than a year after he drank the contents of the bottle of Coca Cola.

The basis of appellee's action was that appellant, in bottling and putting the Coca Cola on the market for human consumption, impliedly warranted that it was fit for that purpose; and the bottle in question being unfit for human consumption, appellant thereby breached such implied warranty. Appellee sought to make a case under that principle, relying on the cases of Jackson Coca Cola Bottling Works v. Chapman, 106 Miss. 864, 64 So. 791; Rainwater v. Coca-Cola Co., 131 Miss. 315, 95 So. 444; Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97, 44 A. L. R. 124; and Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305.

It was held in those cases that the manufacturer of a drink put on the market for human consumption impliedly warranted that the drink was fit for that purpose; and if the drink was not fit for human consumption, there was a breach of the implied warranty, for which the manufacturer was liable to any person consuming such drink for the injury resulting therefrom.

The evidence showed without conflict that the bottle of Coca Cola which appellee drank was manufactured and put on the market for human consumption by appellant. The Gilmer Grocery Company, at Tutwiler, was one of appellant's customers. A day or two before appellee drank the bottle of Coca Cola in question, the appellant sold and delivered it to the Gilmer Grocery Company. The bottle which appellee drank came from appellant to the Gilmer Grocery Company capped in the usual way. The cap was removed in the appellee's presence immediately before he drank it. The evidence showed that the cap on the bottle was a Coca Cola cap.

Appellant showed by its evidence that in the manufacture of the Coca Cola great care was taken to prevent any foreign substance from getting into the bottles; but the evidence failed to show that it was impossible for a foreign substance to get into the bottles during the manufacturing process and escape notice.

Appellant assigns five grounds for the reversal of the judgment. We will consider them in the order presented and argued in appellant's brief, and in doing so will set out the controlling evidence pertinent to each contention.

1. Appellant contends that the verdict of the jury was contrary to the great weight of the evidence. There was no dispute in the evidence that the bottle of Coca Cola in question was manufactured and put on the market for human consumption by appellant, and that it contained a part of a decomposed mouse or rat, which appellee swallowed in drinking the Coca Cola resulting in ptomaine poisoning, and causing nausea and suffering. Appellee testified that his stomach and bowels had been permanently injured from the poison. Four physicians testified as experts, on behalf of appellant; according to their...