Griffin v. Asbury
| Decision Date | 03 April 1945 |
| Docket Number | 31401. |
| Citation | 165 P.2d 822,196 Okla. 484,1945 OK 111 |
| Parties | GRIFFIN et al. v. ASBURY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 20, 1945.
Application for Leave to File Second Petition for Rehearing Denied Feb 19, 1946.
Appeal from District Court, Garvin County; Ben T. Williams, Judge.
Personal injury action by Eva Asbury against Frank Griffin and another. Judgment for plaintiff, and defendants appeal.
Reversed and remanded for a new trial.
Syllabus by the Court.
1. In an action where the doctrine of election of remedies is applicable, it is not reversible error to permit a plaintiff to delay his election until after all the evidence is in where by such delay plaintiff has gained no advantage and defendant has suffered no prejudice.
2. Where a bottled beverage, intended for human consumption, is sealed by the manufacturer and placed upon the market through retail dealers, the manufacturer impliedly warrants such beverage to be fit for human consumption. Liability of the manufacturer to the ultimate consumer who purchases from the retailer may be based upon implied warranty.
3. In an action ex contractu for breach of implied warranty in the sale of a bottled beverage, containing particles of broken glass, the provisions of 63 O.S.1941 § 185, defining adulterated food, has no application since the statute is not aimed at foreign matter, such as broken glass, which does not become a part of the substance of the beverage.
4. In an action to recover damages for personal injuries, it is error to submit to the jury the question of recovery for permanent injury and recovery for future pain and suffering where there is no competent evidence tending to prove that the injury is permament and where the nature of the injury is such as a layman cannot with reasonable certainty know whether there will be future pain and suffering, and expert testimony on that point is lacking.
Rittenhouse, Webster, Hanson & Rittenhouse, of Oklahoma City, Blanton, Curtis & Blanton, of Pauls Valley, and Busby, Harrell & Trice, of Ada, for plaintiffs in error.
Gomer Smith, of Oklahoma City, and C. H. Bowie, of Pauls Valley, for defendant in error.
This is an action commenced by defendant in error, herein referred to as plaintiff, against Frank Griffin and Ada Coca-Cola Bottling Company to recover damages for personal injuries. The basis of plaintiff's claim, as alleged in her petition, is that on May 4, 1940, plaintiff bought from defendant Frank Griffin, a retail merchant in Stratford, Garvin County, Oklahoma, a bottle of Coca-Cola; that she immediately opened and drank from the bottle until she had consumed nearly all the contents, when she noticed the she had swallowed with the Coca-Cola some substance which cut and irritated her throat and had passed into her stomach, which substance proved to be a small piece of glass; that she spat out the Coca-Cola then in her mouth, in which was another small piece of glass about three-eighths inch in length. Examination of the remaining contents of the bottle revealed that there were five other small pieces of glass therein. Defendant Coca-Cola Bottling Company had bottled the Coca-Cola and sold it to defendant Griffin. Plaintiff set out in detail her alleged injuries resulting from swallowing the piece of glass. She alleged that the injuries were permanent. She plead that defendants knew that said beverage would be consumed by the public and warranted and represented to all persons who might purchase said beverage as being pure, harmless, wholesome, and safe to drink.
Plaintiff alleged that it was the duty of the defendants to the public to furnish and sell pure, harmless, wholesome, and safe Coca-Cola; that it was by reason of the carelessness and negligence of defendants that she was so injured and damaged and that if said defendants, and each of them, had exercised due care, said injury would not have occurred. In other words, plaintiff claimed, as a basis of her cause of action, that her injury was the result of breach of warranty on the part of both defendants and also alleged that her injury was the result of negligence on the part of both defendants.
Answer was by general denial. The issues were tried to a jury resulting in a verdict and judgment for plaintiff against both defendants in the sum of $10,156.13. The verdict specified that $156.13 was for doctor's and drug bills.
Defendants appeal.
The first assignment of error is that the court erred in refusing to require plaintiff to elect, before the trial, whether she would prosecute upon the theory of negligence or upon the theory of breach of implied warranty. Before the introduction of any evidence, defendants moved the court to require plaintiff to elect as between the two theories. The motion was overruled. After the close of all the evidence, counsel for plaintiff announced: 'Let the record show at the close of all the evidence, that the plaintiff, in compliance with the defendants' motion to require plaintiff to elect, does elect to eliminate the allegations of negligence and go to the jury solely upon the question of implied warranty.'
The court submitted the issues to the jury as to both defendants upon the theory of breach of implied warranty.
Defendants contend that this is a case where plaintiff should have been put to an election and that it was error to refuse to require the election before any evidence was presented.
Assuming, without here deciding, that this is a case where plaintiff should have been required to elect, it does not necessarily follow that it was reversible error to permit plaintiff to wait until all the evidence is in before making the election. In Berry-Beall Dry Goods Co. v. Francis et al., 104 Okl. 81, 230 P. 496, it was held not error to permit a party, after his evidence was all in, to withdraw an election made before trial and change his election, where it appeared that plaintiff had gained no advantage and the opposite party had suffered no detriment. In this case it does not appear that plaintiff gained any advantage by delay in making the election or that defendants had been prejudiced thereby. Plaintiff had produced no evidence tending to prove negligence on the part of defendant Griffin. As to the other defendant, it does not appear that the evidence would have been different had plaintiff elected to claim on negligence. The error, if any, did not prejudice defendants.
We pass, for the present, consideration of the second proposition.
The third proposition is that the court erred in giving Instruction No. 3 to the effect that a manufacturer who sells and places bottled goods on the market for the public impliedly warrants that the bottled beverages are pure and wholesome, and is liable for injuries resulting from broken glass in a bottle of its product, whether it is guilty of negligence or not, if innocently and unknowingly taken by such person, and that a retail dealer who sells such a beverage for human consumption is bound by the same rule.
It is contended that as applied to defendant Ada Coca-Cola Bottling Company this instruction is erroneous in that there can be no liability of a manufacturer of food products, based upon breach of implied warranty. In this connection, defendants concede that there is sharp conflict in the authorities. The liability of a bottler of beverages is generally recognized, but the courts are not agreed upon the principle upon which liability rests, i.e., whether it may be founded upon an implied warranty or upon negligence. 22 Am.Jur. 891, 892; 26 C.J. 785; 36 C.J.S., Food, § 58.
It is said that according to the weight of authority the rule of liability is founded in tort and not in contract, and therefore there can be no implied warranty.
There appears to be a well developed, though not generally recognized, exception to the rule. Particularly is this true as applied to manufacturers who prepare and seal food or beverage in containers with the intention that the seals are not to be broken or the container opened until the ultimate purchaser is presently ready to consume the same.
In Coca Cola Bottling Works v. Simpson, 158 Miss. 390, 130 So. 479, 72 A.L.R. 143, it is held: 'Manufacturer putting drink on market for human consumption breaches implied warranty, and is liable to person consuming drink for injury resulting, where drink is not fit for human consumption.'
In Davis v. Van Camp Packing Co., 189 Iowa 775, 176 N.W. 382, 390, 17 A.L.R. 649, it is held: 'One who puts up food to be sold through retailers for human consumption impliedly warrants that it is not deleterious, and is liable to a consumer injured by eating food not fit for use.'
Therein it is also held: 'One seeking damages from a food manufacturer for injuries caused by eating unfit food is not compelled to elect between implied warranty and negligence as a ground for recovery.'
In the latter cause, the court cited numerous authorities, some holding to the one rule and some to the other. In the body of the opinion it is said:
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