Delta Nehi Bottling Co. v. Lucas

• Decision Date: 09 January 1939
• Docket Number: 33491
• Citation: 185 So. 561,184 Miss. 693
• Court: Mississippi Supreme Court
• Parties: DELTA NEHI BOTTLING CO. v. LUCAS

185 So. 561

184 Miss. 693

DELTA NEHI BOTTLING CO. v. LUCAS

No. 33491

Supreme Court of Mississippi, Division A

January 9, 1939

Suggestion Of Error Overruled February 6, 1939.

APPEAL from the circuit court of Leflore county HON. S. F. DAVIS Judge.

Action by Mrs. Annie L. Lucas against the Delta Nehi Bottling Company for damages for illness alleged to have been caused or aggravated by deleterious substance in bottle beverage placed on market for human consumption. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Gardner Denman & Everett, of Greenwood, for appellant.

Appellee failed to prove that the appellant bottled and manufactured the R. C. Cola alleged to have been drunk by Mrs. Lucas, and appellee has failed to prove any breach of warranty on the part of the appellant.

Mississippi has adopted the implied warranty theory in this type of case.

Kroger Grocery Co. v. Lewelling, 165 Miss. 426; Cudahy Packing Co. v. McPhail, 170, Miss. 504; Cudahy Packing Co. v. Baskin, 170, Miss. 834; Armour & Co v. McMillian, 171 Miss. 199; Swift & Co. v. Hawkins, 174 Miss. 253.

The warranty in all of the above cases runs from the manufacturer to the consumer. It has been held that the distributor or retail seller is not liable on the warranty. It is the fact of manufacture that is important rather than the fact of sale.

Pillars v. Tobacco Co., 117 Miss. 490; Kroger Grocery Co. v. Lewelling, 165 Miss. 71.

Since the warranty attaches to the manufacturer only, the first consideration of our courts in every case involving the implied warranty since the Chapman case in 1914 reported in 106 Miss. 864, has been whether the defendant manufactured and prepared the product. Where the evidence clearly shows that the defendant manufactured and prepared the drink, the first stake which the court drives is the fact that the defendant did manufacture and prepare the product. This is the primary proposition. From this point on, the court reasons the case. Where there is any debatable question as to the manufacture or preparation, this is the very first matter which the courts direct their attention to. It must therefore be our first consideration in this case.

It is elementary that the plaintiff must prove every material allegation of the declaration. The declaration in this case alleges that the appellant prepared, manufactured, and bottled the R. C. Cola in question. This being a material allegation, appellee must prove its truth.

The burden was on the appellee to show that the bottle was manufactured or bottled by the appellant.

Coca Cola Bottling Co. v. Grubbs, 143 Miss. 590.

It is shown by the testimony that the partnership known as "Nehi Bottling Company" ceased to exist on September 1, 1937, and that a new and separate corporation came into being on September 1, 1937, known as the "Delta Nehi Bottling Company, Incorporated." These two firms are entirely separate entities. The evidence affirmatively shows that the R. C. Cola was purchased from the partnership instead of the corporation.

Coca-Cola Bottling Co. v. Grubbs, 143 Miss. 590.

The fact of manufacture must be positively established. The drink must be traced from the manufacturer to the consumer, and this may be done in the absence of direct proof by showing that the manufacturer or bottler who bottled the drink had the exclusive right of sale of that certain kind of drink in the certain territory from within which the consumer purchased the bottle. An exclusive right to sell does not prove the manufacture and preparation.

Appellee failed to prove a breach of warranty, failing completely to show what the nature of the substance in the alleged bottle was, and failing to prove that the same was injurious.

Cudahy Packing Co. v. Baskin, 170 Miss. 834; Bottling Co. v. Chapman, 106 Miss. 864; Rainwater v. Coca Cola Bottling Co., 131 Miss. 315.

The plaintiff had the burden of producing evidence to show the presence of foreign and deleterious substances in the beverage.

Reese v. Durham Coca Cola Bottling Co., 150 S.E. 198.

The proof on this question failed to show the nature of the substance and whether or not it was deleterious or injurious to the human system.

If the nature of the contents of the bottle are not known, how can it be said that ii was harmful, deleterious or injurious, especially when the physical condition of the appellee was such as the record discloses it to have been at the time this drink was taken? From the testimony of all of the physicians who have testified in this case, it is highly probable that the illness of Mrs. Lucas could have occurred without any substance in the bottle. Three physicians staked their professional reputation on this opinion.

Weinberg v. Doelger Brewing Co., Inc., 174 N.Y.S. 69.

Knox Lamb and J. W. Bradford, both of Greenwood, for appellee.

The law of this case has been so thoroughly settled by this court in very recent decisions and the court is so familiar with the question involved, we do not think it necessary to do more than refer the court to a few of these decisions. With reference to the first proposition that there was no proof that appellant manufactured the drink, we submit thai appellants are absolutely in error.

Curtiss Candy Co. v. Johnson, 168 Miss. 426, 141 So. 762.

Appellant contends that there was testimony to the effect that the appellant, Delta Nehi Bottling Co., Inc., succeeded a partnership called the Nehi Bottling Company on September 1 1937, over three and one-half months before this R. C. Cola was purchased by appellee, and that possibly it was one of the partnership bottles from which appellee drunk. We submit that it is a well known rule of law that when a corporation absorbs a partnership or another corporation that the assets taken over are liable for the obligations of the proceeding firm. But aside from that, we have a recent Mississippi case which entirely clears up this angle of the case as well as the general question before us. Swift & Co. v. Hawkins, 174 Miss. 253, 164 So. 231. This is a case wherein Swift & Company, an Illinois corporation, sold to a merchant cheese unfit for human consumption and the merchant in turn retailed it to the plaintiff, who was thereby made sick. The facts showed that the cheese was not manufactured by the defendant, Swift & Company of Illinois, but by another corporation. The court held Swift & Company of Illinois liable because no matter who made the cheese the defendant sold it as its product and the court says: "There is thus presented an apt case for the application of the rule...