Enloe v. Charlotte Coca-Cola Bottling Co.
| Decision Date | 26 June 1935 |
| Docket Number | 524. |
| Citation | 180 S.E. 582,208 N.C. 305 |
| Parties | ENLOE v. CHARLOTTE COCA-COLA BOTTLING CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Hill, Special Judge.
Action by Eva Enloe against the Charlotte Coca-Cola Bottling Company. Judgment for plaintiff, and defendant appeals.
New trial ordered.
Basis of liability of manufacturer for injuries to consumer of food is negligence rather than implied warranty.
In action against soft drink bottler for injuries caused by dead mouse in bottle, admission of evidence showing injuries to other parties from foreign substances in bottles held error where substances, flies, and glass particles were suggestive of different source of deleteriousness, and there was nothing to show that occurrences were ones of series of similar ones preceding or following date of plaintiff's injury.
Civil action by ultimate consumer to recover of manufacturer or bottler damages resulting from drinking bottled beverage containing noxious substance.
On April 8, 1933, the plaintiff purchased from a retail grocery store in the city of Charlotte a bottle of Coca-Cola, which had been manufactured or bottled and placed on the market by the defendant. She became ill from drinking part of its contents, and, upon investigation, it was found that the bottle contained a rat or mouse. Negligence is alleged against the manufacturer or bottler, and the action is to recover in tort.
The plaintiff was allowed to show, over objection of defendant that on five other occasions Coca-Cola bottled by the defendant was found to contain foreign substances. These instances were as follows:
(1) Mrs. Henrietta Courtney testified that she bought a bottle of Coca-Cola from a store in Charlotte in February, 1931, "drank a swallow and it burned her throat."
(2) B. W. Williams testified that on August 29, 1932, he purchased a bottle of Coca-Cola at a Greek café in Charlotte which contained
(3) L. D. Yerton testified that on April 7, 1934, he bought a bottle of Coca-Cola from Tom Kutches' Café in Charlotte, which "had a dead fly in it."
(4) Bertha Lee testified that on June 26, 1934, she bought a bottle of Coca-Cola at Yancey's Drug Store in Charlotte, which contained "three or four pieces of glass."
(5) J. R. Moore testified that on August 27, 1934, he bought a bottle of Coca-Cola from a cafeteria in Charlotte and "found some glass in it."
It is in evidence that the defendant placed on the market all the bottled Coca-Cola sold in the Charlotte territory or district.
The defendant offered the inspector for the state food department who testified in part as follows:
There was other evidence to the same effect, none of which was controverted.
The issue of negligence was found against the defendant, and plaintiff was awarded damages in the sum of $1,500.
Defendant appeals, assigning errors.
John M. Robinson and Hunter M. Jones, both of Charlotte, for appellant.
D. E. Henderson, G. T. Carswell, and Joe W. Ervin, all of Charlotte, for appellee.
In considering the questions presently presented, it may be helpful to plot against the course of the decisions in this jurisdiction as affecting the liability of one who manufactures or prepares in cans, sealed packages or bottles, foods, medicines, drugs or beverages and places them on the market, for injuries sustained by the ultimate consumer or user who purchases such goods from a dealer or middleman and not from the manufacturer, bottler, or packer.
These propositions are established:
1. That the basis of liability is negligence rather than implied warranty. Thomason v. Ballard & Ballard Co., 208 N.C. 1, 179 S.E. 30; Perry v. Bottling Co. 196 N.C. 175, 145 S.E. 14; Grant v. Bottling Co., 176 N.C. 256, 97 S.E. 27, 4 A. L. R. 1090; Ward v. Sea Food Co., 171 N.C. 33, 87 S.E. 958.
2. That the standard of vigilance required of the manufacturer, bottler, or packer is due care, i. e., commensurate care under the circumstances. Broadway v. Grimes, 204 N.C. 623, 169 S.E. 194; Corum v. Tobacco Co., 205 N.C. 213, 171 S.E. 78; Small v. Utilities Co., 200 N.C. 719, 158 S.E. 385.
3. That the installation by the manufacturer, bottler, or packer of modern machinery and appliances, such as is in general and approved use, does not ipso facto or perforce exculpate the defendant from liability. Grant v. Bottling Co., supra.
4. That the unwholesomeness of the product which proximately results in injury to the consumer must be traced to the negligence of the manufacturer, bottler, or packer. Keith v. Tobacco Co., 207 N.C. 645, 178 S.E. 90.
5. That in establishing the alleged negligence of the manufacturer, bottler, or packer, the plaintiff is not entitled to call to his aid the doctrine of res ipsa loquitur. Lamb v. Boyles, 192 N.C. 542, 135 S.E. 464, 29 A. L. R. 589; Cashwell v. Bottling Works, 174 N.C. 324, 93 S.E. 901; Perry v. Bottling Co., supra; Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L. R. A. (N. S.) 949; Note, 47 A. L. R. 148.
6. That proof of the explosion from gas pressure of a single bottle of Coca-Cola (Dail v. Taylor, supra), Pepsi-Cola (Cashwell v. Bottling Works, supra), ginger ale (Lamb v. Boyles, supra), without more, is not sufficient to carry the case to the jury on the issue of negligence. Broadway v. Grimes, supra.
7. That a way of escape is to be left open for the careful and prudent manufacturer, bottler, or packer. Thomason v. Ballard & Ballard Co., supra; Lamb v. Boyles, supra; Grant v. Bottling Co., supra; Dail v. Taylor, supra.
8. That direct proof of actionable negligence on the part of the defendant is not required. Such negligence may be inferred from relevant...
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