Crews v. Sikeston Coca-Cola Bottling Co.

• Decision Date: 30 December 1949
• Docket Number: COCA-COLA,Nos. 6859,6860,s. 6859
• Citation: 240 Mo.App. 993,225 S.W.2d 812
• Parties: CREWS v. SIKESTONBOTTLING CO. (two cases).
• Court: Missouri Court of Appeals

Page 812

225 S.W.2d 812

240 Mo.App. 993

CREWS v. SIKESTON COCA-COLA BOTTLING CO. (two cases).

Nos. 6859, 6860.

Springfield Court of Appeals, Missouri.

Dec. 30, 1949.

C. A. Powell, of Dexter, for plaintiff (respondent and appellant).

Finch & Finch, of Cape Girardeau, R. Kip Briney, of Bloomfield, for defendant (respondent and appellant).

BLAIR, Judge.

This is an unusual case, because it involves two appeals in the same case. Such appeals were consolidated by agreement; both parties used the same transcript, and the cases were argued together in this Court.

The original petition was filed May 21, 1948. On November 20, 1948, plaintiff (who is both appellant and respondent in this Court) filed her amended petition in two counts. The first count of the amended petition was dismissed by plaintiff at the conclusion of all of the evidence, and therefore need not be further noticed.

The second count was amended by plaintiff at the close of her case by striking out the words 'fail to properly sterilize said bottle before placing any 'Coca-Cola' in said bottle and negligently and carelessly * * *.' It is the theory of plaintiff that the second count of the amended petition thereafter charged defendant with negligence, under the res ipsa loquitur doctrine, a theory which we do not need to discuss.

On December 1, 1948, the defendant (both respondent and appellant here) filed its answer. The answer to the first count of plaintiff's petition need not be further considered, for the reason heretofore mentioned.

In the second count of her amended petition, the plaintiff alleged that she was sickened by a mouse left in a bottle of coca-cola by defendant and was thereby rendered 'violently ill and nauseated and vomited and was seized with cramps, pain and misery in and about her stomach, abdomen and head; she received a severe and violent shock to her entire nervous system; the lining and membrane of her stomach were caused to become inflamed and sore and her digestive system was poisoned; it was necessary for her to consult and accept treatment from a physician and she was taken to Dr. W. J. Hux in Essex, Missouri, where the poisonous contents of the bottle of 'Coca-Cola' which she drank and other food and contents of her stomach which had become poisoned because of the drinking of the same were removed from her stomach and she has been compelled to take medicine continuously since that time; she has suffered great physical and mental anguish and her stomach is and will continue to be in a weakened condition; it is difficult and will continue to be difficult for her to eat and retain food; she cannot partake of nourishment as formerly; she frequently becomes and will continue to become ill and nauseated and suffer intense headache and fainting spells; and she has been and will continue to be mentally upset and the thought and recollection of her experience in connection with the drinking and swallowing of the contents of the bottle of 'Coca-Cola' as aforesaid causes her and will continue to cause her to lose her appetite and be mentally upset.'

The prayer of her petition was for $5,000 actual damages and $5,000 punitive damages. On January 4, 1949, the jury returned a verdict for plaintiff in the sum of $900 actual damages and in the sum of $900 punitive damages.

On January 12, 1949, defendant filed its motion for new trial, which was sustained, on March 21, 1949, as follows: 'Motion for new trial sustained unless plaintiff enters remittitur of $900.00, the amount awarded her for punitive damages, within ten (10) days, because no sufficient evidence to justify submission on question of punitive damages.'

To this order of the trial court, both plaintiff and defendant objected and excepted at the time. Plaintiff refused to enter a remittitur of $900 for punitive damages from the verdict returned by the jury, as required by the trial court, and she has appealed. Both plaintiff and defendant gave notice of appeal on March 31, 1949.

The order of the trial court shows that the motion of defendant for new trial was sustained solely because there was 'no sufficient evidence to justify submission on question of punitive damages.' The trial court must therefore have decided all other questions in the case, then before him, in favor of the plaintiff.

We must assume that the trial court, in the case then before them, held that the evidence of plaintiff was otherwise sufficient. We therefore can say that the trial court then held that there was sufficient evidence of a dead mouse in the bottle of coca-cola, and that the evidence to support that claim was sufficient. The plaintiff testified to the presence of such dead mouse in the bottle. She was corroborated by her son and by her husband. The woman who sold the bottle to plaintiff's son saw a mouse in the bottle and Dr. Hux also testified that he saw it.

The presence of a dead mouse in the bottle of coca-cola was a question of fact, in that case, and must have been so found by the jury. Defendant filed a motion for a new trial, and, among other things, attacked the sufficiency of plaintiff's evidence in that case. Defendant's claim of this and other claims of error, must have been overruled by the trial court, since the motion of defendant for a new trial in that case was sustained solely for error in submitting the question of punitive damages to the jury. The trial court evidently found that the evidence, as to the presence of the mouse in the bottle, was sufficient in that case, and approved the finding of the jury in that respect. The presence of a mouse in the bottle is not an open question on this appeal. Ames v. Orme, 28 Mo. 381; Oakes v. Mound City Mutual Ins. Co., 52 Mo. 237; Reynolds v. Buffington, 75 Mo.App. 86; Strode v. Abbott, 102 Mo.App. 169, 76 S.W. 644.

Plaintiff contends that the trial court erred in requiring her to remit the punitive damages, assessed by the jury. Does the proven failure of defendant to put into its bottles substances that were pure, clean and wholesome, alone justify the assessment of punitive damages?

Plaintiff cites Baxter v....