Coca Cola Bottling Works, Inc. v. Catron

• Decision Date: 15 March 1946
• Docket Number: 90.
• Citation: 46 A.2d 303,186 Md. 156
• Parties: COCA COLA BOTTLING WORKS, Inc., v. CATRON.
• Court: Maryland Court of Appeals

46 A.2d 303

186 Md. 156

COCA COLA BOTTLING WORKS, Inc., v. CATRON.

No. 90.

Court of Appeals of Maryland

March 15, 1946

Appeal from Circuit Court, Harford County; Frederick Lee Cobourn Judge.

Action by John Catron against Coca Cola Bottling Works, Inc., for damages allegedly caused by drinking beverage containing foreign substance. Judgment for plaintiff, and defendant appeals.

Affirmed.

G. C. A. Anderson, of Baltimore (Robert H. Archer Jr., and William S. James, both of Bel Air, on the brief) for appellant.

Ernest Volkart, of Baltimore (D. Paul McNabb, of Bel Air, on the brief), for appellee.

Before MARBURY, Chief Judge, and DELAPLAINE, COLLINS, GRASON HENDERSON, and MARKELL, JJ.

HENDERSON Judge.

This is an appeal from a judgment for the plaintiff in the Circuit Court for Harford County, in a case tried before the court and a jury. The jury's verdict of $2,000, on motion for new trial, was reduced by the trial court to $750, and final judgment entered for the latter amount. Three questions are presented on appeal: (1) Whether the Court properly refused to direct a verdict for the defendant, as requested by the defendant's demurrer prayers; (2) whether the Court properly granted the plaintiff's prayer as to the measure of damages; and (3) whether the Court correctly instructed the jury on the law of the case.

The plaintiff, John Catron, on the night of September 12, 1943, went to the restaurant of one Herbert Gittings in the village of Cedars, Harford County, where he ordered an egg sandwich and a bottle of Coca Cola. While waiting for the sandwich, he took a bottle of Coca Cola from a service box, removed the cap, went to a booth and started to drink from the bottle. He had drunk about half the bottle and taken a bite of the sandwich, when he became sick and rushed out of the restaurant with the bottle still in his hand. Outside he vomited and sent a small boy for the proprietor, who came out and was informed by the plaintiff that there was something wrong with the food or the Coca Cola. Gittings held up the bottle to the light, and they both saw that it contained a dead mouse. The Coca Cola had been bottled by the Coca Cola Bottling Works, Inc., at Havre de Grace, Maryland, and delivered to Gittings for sale to his customers. Gittings took the plaintiff to Dr. Gallion, who gave him a hypodermic of morphia to quiet him, and then took him home and helped put him to bed. Plaintiff testified that he vomited and retched all that night, and that an incision in his abdomen burst open, which his daughter taped. He remained in bed four or five days, during which time he was nauseated and unable to eat. This testimony was verified by members of his household. He also testified that it was about nine weeks before he could do any work.

The record shows that Catron suffered from stomach trouble long prior to the incident referred to, and had been treated by Dr. Snodgrass for gastric disturbances, vomiting and nausea. On January 27, 1943, he went to Johns Hopkins Hospital, where he was operated upon for a chronic duodenal ulcer. At the time of admission he complained of pain, retching, vomiting, constipation and inability to hold down his food. He left the hospital on February 25, 1943, but returned on June 16, June 22, July 1 and September 1, 1943, complaining of the same symptoms. The hospital record shows that on September 1, 'patient has gained twenty pounds and is able to tolerate almost any kind of diet. Wound is o. k. There is no reason why the patient should not do light work.' On July 26, 1943, Catron asked assistance from the County Welfare Board, stating 'he was not well enough to make a living for his family.' On August 20, 1943, he complained to the County Health authorities of pains in his stomach, feeling sick at his stomach and stated that he was unable to work. He was advised to return to the hospital. After the Coca Cola episode of September 12, 1943, he did not return to the Johns Hopkins Hospital until March 6, 1944, at which time the hospital records show: 'patient is gaining weight * * * wants statement that vomiting caused present symptoms but I do not see how it could be possible and told patient so. He refused to cooperate with further examination * * * has hernia in upper portion of chest.' He made another visit on May 16, 1944, when the intestinal diagnosis was 'VENTRAL HERNIA, POST-OPERATIVE'. HE was told to return in one month, but never did so.

Dr. P. Byrd Hopkins, a practicing physician of twenty-five years and a graduate of the Johns Hopkins Medical School, testified from the hospital records and the testimony in the case, that the drinking of the Coca Cola containing the mouse was not physically injurious, but he said: 'It would be rather disgusting to most people to discover a dead mouse in any kind of a drink. * * * I think he was mentally disgusted by what he saw and that caused the vomiting.'

Catron was a painter by trade but had no regular employment prior to the mouse incident. He testified that he had 'a little job here and a little job there.' He painted a porch for a Mr. Terrell 'and that took a little over a day.' At the time of the incident on September 12, 1943, he testified, 'I was working for myself--putting up a house--on my own place at Poplar Grove.' There was no evidence whatever as to the value of his labor, or that he lost any work as the result of the incident.

The only other evidence in the case related to the precautions taken by the defendant company to prevent any foreign substances from getting into the bottles before they were sealed and the inspection of the product before it was put on the market.

The appellant contends that the evidence in the case does not establish a causal connection between the drinking of the Coca Cola and the vomiting and other conditions that ensued. But we think the contention is untenable. At the argument it was not contended that there was no evidence from which the jury might infer that the mouse was in the bottle, at the time it was opened, and that its presence in the unopened bottle was due to negligence on the part of the defendant either in processing or in inspecting the product. Armour & Co. v. Leasure, 177 Md. 393, 406, 9 A.2d 572; Salisbury Coca-Cola Bottling Co. v. Lowe, 176 Md. 230, 4 A.2d 440; Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866, citing Jackson Coca Cola Co. v. Chapman, 106 Miss. 864, 64 So. 791, and Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S.W. 155, L.R.A.1916B, 877, Ann.Cas.1917B, 572. See also Canada Dry Ginger Ale Co. v. Jochum, D.C.Mun.App., 1945, 43 A.2d 42. The point pressed was that the evidence does not exclude illness from causes other than the drinking of the Coca Cola. But there was evidence that twelve days prior to the incident the plaintiff could tolerate almost any kind of diet, and he became ill immediately after drinking the Coca Cola, when he had taken only one bite from the sandwich. There was no evidence that the latter contained foreign matter, but there was undisputed evidence that the bottle contained a mouse. This evidence permits an inference that drinking the Coca Cola made him ill, and that it made him ill because it contained a mouse. According to the testimony of Dr. Hopkins the discovery of a dead mouse in a drink might cause anyone to vomit; if that had been the only injury, it would seem that recovery could still be had of nominal damages.

The fact that the plaintiff's condition made him peculiarly susceptible to nausea and injury from vomiting would not excuse the defendant from the consequences of its wrong. In Baltimore City Passenger Railway Co. v. Kemp, 61 Md 74, 81, this court, speaking through Judge Alvey, said: 'It is the...