Crigger v. Coca-Cola Bottling Co.

• Decision Date: 01 October 1915
• Citation: 179 S.W. 155,132 Tenn. 545
• Parties: CRIGGER v. COCA-COLA BOTTLING CO.
• Court: Tennessee Supreme Court

179 S.W. 155

132 Tenn. 545

CRIGGER v. COCA-COLA BOTTLING CO.

Supreme Court of Tennessee.

October 1, 1915

Certiorari to Court of Civil Appeals.

Action by H. C. Crigger against the Coca-Cola Bottling Company. Judgment for defendant, which was affirmed in the Court of Civil Appeals, and plaintiff petitions for certiorari. Affirmed.

King & Lanier, of Memphis, for plaintiff.

Bell Terry & Bell, and Caruthers Ewing, all of Memphis, for defendant.

FANCHER Judge.

The plaintiff drank a bottle of Coca-Cola, a beverage sold generally on the market as wholesome and harmless. In doing so he took into his mouth, and partially swallowed, a decomposed mouse, which caused him to become very sick, and he sues for damages. The defendant does not make the beverage, but buys it in barrels from the manufacturer and bottles it.

The bottle in question was sold by defendant to a local dealer and by him sold to plaintiff.

The question presented is, whether a bottling company engaged in bottling Coca-Cola a beverage made by another, warrants to the ultimate consumer that its bottle contains no injurious, harmful, or deleterious substance, or is the bottling company liable only for negligence, or the omission to use proper care in the work?

The proof shows that the method used at the bottling plant is fully equal to the best. The empty bottle is passed through vats of strong caustic soda solution and then rinsed under pressure with water as hot as the bottle will stand, then inspected by the use of a strong electric light, then brushed out with a rapidly revolving brush and again rinsed; the bottle is again inspected over a brilliant electric light and then filled with Coca-Cola, using a fine strainer, when it is capped, and finally inspected.

The trial judge charged the jury on the theory that if the defendant was free from negligence in the bottling of the beverage there was no liability. The jury found in favor of the defendant, and judgment was accordingly entered. The Court of Civil Appeals affirmed on the ground that the declaration averred negligence and the jury had found against plaintiff on that question.

The case is briefed here in support of the petition for certiorari, and by the defendant, as to whether there is an implied warranty on the part of the Coca-Cola Bottling Company, which results in favor of the ultimate consumer regardless of any question of negligence. The declaration, liberally treated, will admit the question, and the case must be determined upon that standard.

In the case recently determined by this Court of Boyd v. Coca-Cola Bottling Works, 177 S.W. 80, opinion by Mr. Justice Green, the defendant was held liable to the ultimate consumer for injuries from drinking a bottle of Cola-Cola in which was contained a cigar stub. The bottle in that case was bought from an intermediate dealer, to whom the defendant manufacturer had sold it, and it was held that want of contract or privity between defendant and the person injured constituted no defense. It was determined in that case that beverages fall within the class of articles such as foods and medicines, where a liability may exist upon the ground that one placing upon the market such products in sealed bottles assumes a duty to the general public of exercising care to see that nothing unwholesome or injurious is contained in the bottle. For a negligent breach of this duty the defendant was liable.

In the present case, we are to inquire a step further. Does this duty exist regardless of negligence, and is it in the nature of an implied warranty? Some of the cases seem to so hold. The case of Jackson Coca-Cola Bottling Co. v. Chapman (Miss.) 64 So. 791, 7 Neg. & Com. Cas. Ann. 112, note, seems to go to this extent, citing Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L. R. A. (N. S.) 1180, 110 Am. St. Rep. 157.

In the Augusta Brewing Company Case, the Supreme Court of Georgia stated the rule to be:

"When a manufacturer makes, bottles, and sells * * * a beverage represented to be refreshing and harmless, he is under a legal duty to see to it that in the process of bottling no foreign substance shall be mixed with the beverage which, if taken into the human stomach, will be injurious."

It does not appear that the direct question was at issue in that case as to a warranty, regardless of negligence. Most of the cases on the question show some negligence or omission of duty or care, and are based upon that idea.

There are many authorities holding an implied warranty to exist, as between seller and buyer of articles to be used for a specific purpose, that such articles are proper and suitable for the use to which they are to be applied. But we see no reason or principle upon which a warranty might run with an article for consumption like a warranty of title running with land. We think the real ground of liability of the seller to an ultimate consumer is, more properly speaking, a duty one owes to the public not to put out articles to be sold upon the markets for use injurious in their nature, of which the general public have not means of inspection to protect themselves. This duty has been applied to manufacturers of drugs, foods, beverages, poisons, and other things inherently dangerous.

One of the leading cases on the subject is Thomas v. Winchester 6 N.Y. (2 Selden) 397, 57 Am. Dec. 455. That case is referred to in many more recent opinions. A manufacturing druggist was held liable for negligently putting up, labeling, and selling as and for the extract of dandelion, a simple and harmless medicine, a jar of the extract of belladonna, which is a deadly poison, whereby the plaintiff was injured, on the ground of a breach of a public duty, and that this was the result whether the injured person...