Dr. Pepper Co. v. Brittain

• Decision Date: 07 October 1937
• Docket Number: 6 Div. 149
• Citation: 234 Ala. 548,176 So. 286
• Parties: DR. PEPPER CO. v. BRITTAIN.
• Court: Alabama Supreme Court

176 So. 286

234 Ala. 548

DR. PEPPER CO. v. BRITTAIN.

6 Div. 149

Supreme Court of Alabama

October 7, 1937

Appeal from Circuit Court, Jefferson County, Bessemer Division Gardner Goodwyn, Judge.

Action for damages by Louise Brittain against Dr. Pepper Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Transferred from Court of Appeals under Code 1923, § 7326.

Cabaniss & Johnston, of Birmingham, and Huey & Welch, of Bessemer, for appellant.

G.P Benton, of Fairfield, for appellee.

FOSTER Justice.

This is an action by the consumer of a bottled drink, alleged to have been prepared for consumption by appellant engaged in the bottling of soft drinks, and selling them to the public for human consumption.

Count A, the only one submitted to the jury, alleged those facts and that the bottled drink was purchased from the Great Atlantic & Pacific Tea Company, operating a store, and consumed by plaintiff, who sustained personal suffering and sickness due to the presence of a black substance, fly, or a substance which was unwholesome in the bottle, as the proximate result of the negligence of defendant in and about bottling the drink.

We have not undertaken here to set out the essential features of the complaint, but only enough to describe the cause of action.

There was demurrer to the complaint properly overruled in so far as here insisted on. We think the objections are too critical to be of practical value in considering the sufficiency of the complaint, and that no good would be accomplished by a discussion of them.

Appellant insists that the affirmative charge was due it because the evidence shows, as it is claimed without dispute, that it was not negligent in bottling the drink so as to produce the result. We have often referred to the principle that, when such an article is prepared for and intended to be consumed by some member of the public, and an attempt is made to do so by one so intended, and when the apparently original sealed package is first broken, it contains a foreign unwholesome substance, there is a presumption that such matter found its way in it on account of the negligence of defendant. Reichert Milling Co. v. George, 230 Ala. 3, 162 So. 393; Collins Baking Co. v. Savage, 227 Ala. 408, 150 So. 336; Coca-Cola Bottling Co. v. Crook, 222 Ala. 369, 132 So. 898; Try-Me Beverage Co. v. Harris, 217 Ala. 302, 116 So. 147.

When defendant offers without dispute evidence that its processes are such that during the operation foreign matter cannot find its way into the bottled drink or other sealed package, it does not always follow that defendant is entitled to an affirmative charge even predicated upon the usual hypothesis. The situation resembles in legal effect that which exists with respect to the liability of a railroad company for causing fire to be set out from sparks from its locomotive. The jury must first find either by direct or circumstantial evidence that the fire was caused from sparks emitted by defendant's engine. There is then a presumption of law that the railroad company was negligent either in respect to the equipment or handling of the engine, and it is due to rebut that presumption. If this is done without conflict, and there are no conflicting inferences from the evidence, the jury should be charged generally for defendant on the usual hypothesis. But, when the evidence shows that an engine properly equipped and handled will not emit sparks sufficient to cause the fire in question, it follows that, if in fact the sparks did cause the fire, there is shown a circumstance which discredits evidence of proper equipment and due care in handling, making a case for the jury. Louisville & Nashville R.R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438, 50 L.R.A. 620; Southern Rwy. Co. v. Ross, 215 Ala. 293, 110 So. 369; Louisville & Nashville R.R. Co. v. Smith, 222 Ala. 618, 133 So. 905, and cases cited.

So that, if the evidence in this case, either direct or circumstantial, is sufficient to cast on defendant a presumption of negligence its duty is to rebut that presumption by showing proper equipment and appliances and due care on its part both in the process of cleaning, filling, and capping the bottles, and in handling them up to the time of delivery to its purchaser. So that the whole question is under that hypothesis for the jury. Was the substance in the package when defendant put it on the market? Defendant concedes that its equipment and methods are such that it could not...