Gantt v. Columbia Coca-Cola Bottling Co.

• Decision Date: 20 February 1940
• Docket Number: 15020.
• Parties: GANTT v. COLUMBIA COCA-COLA BOTTLING CO.
• Court: South Carolina Supreme Court

7 S.E.2d 641

193 S.C. 51

GANTT v. COLUMBIA COCA-COLA BOTTLING CO.

No. 15020.

Supreme Court of South Carolina

February 20, 1940

Thomas Cain & Black and Herbert & Dial, all of Columbia, for appellant.

Geo Bell Timmerman, of Lexington, and C. T. Graydon, of Columbia for respondent.

L. D LIDE, Acting Associate Justice.

This action relates to a certain bottle of coca-cola, which it is alleged contained poisonous or deleterious matter, to wit, bluestone. On or about April 2, 1933, George Bell Gantt, the respondent herein, a young man, then about eighteen years of age, purchased for immediate consumption a bottle of coca-cola at P. L. Shumpert's country store in Lexington County. According to the custom in such stores he waited on himself, taking the bottle from the ice box and opening it by use of the opener attached thereto. He testified that the bottle appeared to be all right, but that when he had drunk a part of its contents he experienced a burning sensation in his mouth and throat, and felt "fainty like" and became nauseated. He then brought the matter to the attention of V. V. Shumpert, who was in charge of the store. Later he was taken to physicians for treatment, one of whom testified that he "had every appearance of a person that was very sick from some

acute cause"; while another said that he "didn't seem to be seriously sick and not sick at all much". At all events, the testimony by and on behalf of plaintiff is to the effect that he was thus made quite ill and that he suffered injurious consequences from such illness.

The bottle with the remainder of the liquid in its was preserved and turned over to a firm of chemists in Columbia for analysis, and as will appear from the testimony of R. M. Simpson, one of these chemists, it was found to contain copper sulphate, or copper and sulphate, which is bluestone, a compound that is not fit for human consumption but is more or less poisonous, and is used by farmers to protect their corn, wheat and oats from rust, and for other like purposes.

This action was commenced on or about September 6, 1934, to recover damages by reason of the incident aforesaid, by George Bell Gantt, by his guardian ad litem, as plaintiff, against Columbia Coca-Cola Bottling Company, as defendant, the same being a corporation with its principal place of business in Columbia, engaged in the business of bottling, distributing and offering for sale the widely advertised and used beverage having the trade name of "Coca-Cola". W. L. Adams was originally also named as defendant, and the suit was first commenced in Aiken County, but the venue was afterwards changed to Richland County and W. L. Adams was dropped as a party defendant.

The complaint herein alleges that the defendant company puts up coca-cola in sealed bottles of uniform style, advertising the same to the public as being free of deleterious or harmful ingredients, and as palatable, nutritious, wholesome and invigorating. And it is further alleged that this bottle of coca-cola was bottled by the defendant company and that the same contained bluestone or some similar solution or ingredient that was harmful and poisonous, and that the plaintiff purchased and drank same and was thereby made dangerously ill to his great damage; and that his injuries were due to and caused by the negligence and wilfulness of the defendant company in bottling the coca-cola with bluestone mixed therein; in failing to use proper precaution to prevent such deleterious, harmful and poisonous substance from getting into the coca-cola; in failing properly to protect such coca-cola from contamination after it was bottled and before it was sold; in failing properly to inspect such coca-cola immediately before putting it on the market; etc.; etc. The defendant answered denying all the material allegations of the complaint.

The cause came on for trial at a term of the Court of Common Pleas for Richland County before Hon. G. Duncan Bellinger, Presiding Judge, and a jury. The Presiding Judge overruled the motions of defendant, which were timely made, for a nonsuit and for a directed verdict; except for wilfulness, since he charged the jury that there was no evidence upon which punitive damages could be found. The jury rendered a verdict in favor of plaintiff in the sum of $2,000 actual damages, and the Court refused defendant's motion for a new trial by his order dated May 30, 1939; and the cause comes before this Court upon an appeal from the judgment entered in favor of plaintiff.

The primary question involved in this appeal is: Did the trial Judge err in refusing to direct a verdict for the defendant, in that: (1) There was no evidence from which the jury could reasonably conclude that the bottle in question had actually been put out by the defendant company, or if so, that the same contained the deleterious matter at the time it was sold by defendant company; and (2) there was no evidence from which the jury could reasonably conclude that the defendant company was negligent?

With reference to subdivision (1), we are of opinion that the evidence was quite sufficient to warrant the submission of the cause to the jury. There was testimony to the effect that the coca-cola in question was purchased by Mr. Shumpert, owner of the store, from the Salley Coca-Cola Bottling Company, through its agent W. L. Adams, and that the Salley Coca-Cola Bottling Company purchased its supply of coca-cola from time to time from the defendant herein, Columbia Coca-Cola Bottling Company, its operations being in the territory supplied from the defendant company's plant. The evidence also showed that this particular bottle itself (considered apart from its alleged contents) originally belonged to the defendant company, having the name "Columbia" thereon, although there was testimony that the empty bottles of various companies sometimes become exchanged through error. On the other hand, in behalf of the defendant company there was testimony to the effect that its bottling plant is and was at the time in question modern, up-to-date, and efficient in every respect, being equipped with the latest improved machinery; and that the bottling process, including the most thorough cleansing of the bottles, as well as the filling thereof, is such an ingenious and scientific mechanical process as to eliminate the possibility, or at least the probability, of error. It also appeared from the testimony that a bottle of coca-cola may be readily uncapped and re-capped, a matter over which the defendant could have no control after the bottle left its plant. Moreover, there was evidence to the effect that bluestone is not, and never has been, used in any way in connection with the defendant's bottling process or on its premises. Without going into further detail as to the testimony offered by the respective parties, it seems to us that although the inferences which might be drawn from the evidence were quite conflicting, the case was clearly one for the jury on this phase of the motion.

Was the evidence of negligence sufficient to take the case to the jury? We have examined the entire record with painstaking care, and we do not hesitate to say that apart from the application of the Pure Food Statute. Section 1452, Code 1932, there is not a vestige of evidence of negligence to be found in the case, and that but for this statute a verdict should have been directed for the defendant company. The plaintiff in making out his case does not even attempt to adduce any evidence, circumstantial or direct, tending to show negligence, apart from the statute. The defendant offered affirmative evidence as to the character of the bottling plant, as above set forth, and also testimony tending to show that the same was operated with all due care and caution; and, as already stated, that bluestone was not used in any way in or about the plant. It was brought out on cross-examination of the manager that the alkaline washing solution used in cleansing the bottles was a caustic preparation, and it was intimated argumentatively that this might have contained, or been related in some way to, bluestone; but the same chemist who analyzed, or assisted in analyzing, the coca-cola involved in this case testified directly without contradiction that there is no relationship between bluestone and caustic solution of soda, and that they are "two different things". We repeat, therefore, that our conclusion is that except for the application of the Pure Food Statute there was no evidence of negligence for the jury.

However, the Court correctly declined to direct a verdict, in that, Section 1452, Code 1932, is applicable to the case at bar, for the reason that the statute makes it unlawful and a criminal offense for any person to manufacture or sell, or offer for sale, any article of food "if it contain any added poisonous or other added deleterious ingredient, which may render such article injurious to health". And it is further provided in this section that non-alcoholic drinks shall be deemed adulterated if they contain any "compound of copper". Moreover neither knowledge of the contamination nor negligence in fact is a material element of the offense. As we construe the complaint herein it charges a violation of this section. If, therefore, it is found from the preponderance of the evidence that the bottle of coca-cola in question was bottled and sold by the defendant company, and that it contained at the time of the sale and delivery thereof by the company the alleged poisonous or deleterious matter, this would be a violation of the statute, and therefore, negligence per se. It then follows that evidence tending to show a violation of the statute, or negligence per se, would require the submission of the case to the jury, so far...