Connell v. Norton Coca-Cola Bottling Co.

• Decision Date: 10 December 1960
• Docket Number: COCA-COLA,No. 41869,41869
• Citation: 357 P.2d 804,187 Kan. 393
• Parties: Della CONNELL, Appellee, v. NORTONBOTTLING COMPANY, Inc., Appellant.
• Court: Kansas Supreme Court

Page 804

357 P.2d 804

187 Kan. 393

Della CONNELL, Appellee, v. NORTON COCA-COLA BOTTLING COMPANY, Inc., Appellant.

No. 41869.

Supreme Court of Kansas.

Dec. 10, 1960.

Syllabus by the Court.

1. The general rule is that no judgment can be rendered on an opening statement unless it appears that the party making it has admitted facts which necessarily and absolutely preclude his recovery under the issues made by the pleadings.

2. The general rule is that where a party raises questions involving instructions, such as the failure of the trial court to give certain ones requested, it is his duty to include in the record, on appeal, those which were given--otherwise there is no way for this court, on review, to determine what may or may not have been included in those given.

3. The rule is well established that where beverage is manufactured and bottled for immediate human consumption, the manufacturer or bottler impliedly warrants such beverage as wholesome and fit for such consumption and that it will cause no harmful effect because of deleterious matter therein--the basis of the rule being a matter of public policy for the protection of the consuming public.

4. In an action based upon a breach of an implied warranty to recover damages for personal injury sustained by plaintiff as a result of drinking from a bottle of Coca-Cola which contained a centipede, such action resulting in a verdict and judgment for plaintiff, the record is examined and it is held: No error shown.

Wm. B. Ryan, Norton, argued the cause and was on the brief for appellant.

Marion W. Chipman, Hill City, argued the cause, and W. H. Clark and Kenneth Clark, Hill City, and Keith G. Sebelius, Norton, were with him on the brief for appellee.

PRICE, Justice.

This action was based upon a breach of an implied warranty and sought damages for personal injuries sustained as a result of drinking from a bottle of Coca-Cola which contained a centipede.

The petition, after detailing the facts and circumstances surrounding the purchase of and drinking from the bottle of Coca-Cola, with the resulting nausea, vomiting and physical illness of plaintiff, alleged:

'* * * that said bottle of Coca-Cola, as hereinbefore described, was manufactured, handled, distributed and sold by said defendant and said defendant impliedly warranted to the public and to plaintiff that said bottle of Coca- Cola and the contents thereof was fit and safe for human consumption and that it was so manufactured, bottled, handled and sold in a manner as not to be inherently or imminently dangerous. That the plaintiff relied on the said warranty, and the breach thereof, as hereinbefore alleged, by said defendant, resulted in the damages and injuries to plaintiff as above alleged for which plaintiff should have and recover judgment herein against said defendant for the sum of $7,500.00 and the costs of this action.'

The answer and reply were in the form of a general denial.

The following is a brief summary of plaintiff's evidence:

On August 2, 1958, plaintiff and her sister, Mrs. Letha Rupp, visited their mother who was a patient in the Norton County Hospital. A Coca-Cola dispensing machine was in the waiting room of the hospital. Plaintiff inserted a coin in the machine and received a bottle of 'coke.' She opened the bottle and started to drink from it. Upon noticing that it tasted rather 'peculiar' she handed it to her sister to taste. The sister also noticed that it did not taste 'natural.' Each of them took two or three swallows, whereupon the sister noticed a large decomposed centipede in the bottom of the bottle. They became frightened and nauseated and were taken to the office of a Norton doctor where they were given medicine and were treated for severe vomiting. As a result of the 'experience' plaintiff and her sister were nauseated, given to vomiting, and suffered physical distress for a considerable period of time. Plaintiff's sister missed work for a week as a result thereof. Each of them incurred a doctor bill of approximately $49.

The doctor who treated them testified that plaintiff would suffer nausea and vomiting for a period of time--perhaps for three months, but that probably she would suffer no permanent injuries, and that undoubtedly the illness of both plaintiff and her sister was brought about by seeing the centipede in the bottle rather than from the actual drinking of its contents.

It was further established that the 'coke' machine was owned and serviced by defendant bottling company.

In behalf of defendant, its vice-president testified as to the manner of bottling Coca-Cola and as to the methods of sanitation and care used by the company in the operation of its business.

The jury returned a verdict for plaintiff in the amount of $1,000. Defendant's motion for a new trial was overruled and this appeal followed.

(In this connection, it should be stated that plaintiff's sister, Mrs. Letha Rupp, filed a similar action against defendant. The cases were consolidated for trial in the court below and were tried together upon the same evidence. The jury likewise returned a verdict in the amount of $1,000 in favor of Mrs. Rupp. Defendant's motion for a new trial was overruled and it also appealed in that case, the same being case No. 41,868, this day decided. The two appeals were not consolidated in this court.)

In this appeal defendant first contends that the trial court erred in denying its motion for judgment on plaintiff's opening statement to the jury, the argument being that such statement showed plaintiff's injuries to be 'psychological' rather than physical, and for which, in an action based upon breach of an implied warranty, she was not entitled to recover, citing authorities from other jurisdictions and Clemm v. Atchison, T. & S. F. R. Co., 126 Kan. 181, at page 184, 268 P. 103, 104, where, appears the statement that----

'It has been repeatedly held in this state, in substance, that in an action where no physical injury is alleged or proved, no damages for mental...