Collins v. Lumberton Coca-Cola Bottling Co.
| Decision Date | 08 April 1935 |
| Docket Number | 675. |
| Parties | COLLINS v. LUMBERTON COCA-COLA BOTTLING CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Robeson County; Grady, Judge.
Action by R. C. Collins against the Lumberton Coca-Cola Bottling Company. From a judgment for plaintiff, defendant appeals.
New trial awarded.
This was a civil action by a consumer to recover of a bottler damages resulting from drinking bottled beverage containing foreign and deleterious substance. Negligence is alleged against the bottler and the action is to recover in tort.
The plaintiff alleged, and offered evidence tending to prove that on the 30th day of June, 1934, he purchased from one Hamp Mercer, at his place of business on Main street in Lumberton, a bottle of Coca-Cola which had been bottled and placed on the market by the defendant; that when he was drinking from the bottle the partially decayed body of a spider came with the fluid into his mouth, which he "blowed back into the bottle"; and that he became ill from drinking a portion of the contents of the bottle.
The plaintiff was allowed to offer evidence, over the objection of the defendant, tending to show that on six other occasions Coca-Cola bottled and sold by the defendant to retail dealers was found to contain foreign substances. These occasions, as gathered from a construction of the evidence most favorable to the plaintiff, were as follows:
1. About the same time the sale was made to the plaintiff by Mercer, Paul Britt bought a bottled Coca-Cola from Mercer containing a substance that "looked like ground up meat," which Mercer had bought from the defendant "two or three weeks, or a month," before the sale to Collins (the plaintiff).
2. Earl Thompson bought from J. F. Rozier a bottled Coca-Cola "in June, 1934," which had an "odor of kerosene." While the evidence tends to show that Rozier the retail dealer, or "middleman," purchased this Coca-Cola from the defendant, there is no evidence as to the time he purchased it, or how long he had had it before he sold it to Thompson.
3. W N. Ivey bought from Willie Davis a bottled Coca-Cola on the 15th of June, 1934, which had "three flies of some kind in it." As on the preceding occasion, the evidence tends to show that Davis, the retail dealer, bought the Coca-Cola from the defendant, but is silent as to when he bought it, or how long he had it in stock before selling it to Ivey.
4. Marvin Autrey bought from James Stanley a bottled Coca-Cola in November, 1934, which contained something that "looked like a bug." On this occasion, likewise while tending to show the Coca-Cola was purchased from the defendant, there is no evidence as to when it was so purchased.
5. Rester Ivey bought from Fundy Fry a bottled Coca-Cola "some time last summer" which had a "housefly in it." As on the other occasions, the evidence tends to show that the Coca-Cola was purchased by the retailer from the defendant, the bottler, but fails to indicate when such purchase was made.
6. James Allen bought from J. F. Rozier a bottled Coca-Cola on the 2d day of June, 1934, which contained something that "looked like a crushed bug." While there is evidence that the Coca-Cola was bottled and sold by the defendant, the record is silent as to when the sale was made by the defendant, the...
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