Hobbs v. Carolina Coca-Cola Bottling Co.

• Decision Date: 09 July 1940
• Docket Number: 15124.
• Parties: HOBBS v. CAROLINA COCA-COLA BOTTLING CO.
• Court: South Carolina Supreme Court

10 S.E.2d 25

194 S.C. 543

HOBBS v. CAROLINA COCA-COLA BOTTLING CO.

No. 15124.

Supreme Court of South Carolina

July 9, 1940

Raymon Schwartz, of Sumter, and Williams & Stewart, of Lancaster, for appellant.

Allen Sapp and Gregory & Gregory, all of Lancaster, for respondent.

FISHBURNE Justice.

Plaintiff brought this action for the recovery of damages alleged to have been suffered by him as a direct and proximate result of drinking a bottle of coca-cola manufactured by the defendant which contained some "vile and/or poisonous, and/or polluted, foul, contaminated, and/or revolting substance or substances therein, which resembled and/or appeared to be decayed cockroaches, and/or other bugs, and/or varmints and/or foul and unwholesome substances or materials animal, vegetable, and/or mineral."

At the trial of the case the plaintiff obtained a judgment against the defendant for actual damages in the sum of $350, from which judgment this appeal is taken.

The bottle of coca-cola was purchased by the plaintiff for immediate consumption from Mackey's Drug Store at Heath Springs, South Carolina, on July 4, 1939. The plaintiff testified that when he had drunk about a fourth of the contents of the bottle he discovered that it did not taste right; it burnt his throat and spewed out of his mouth. He detected an odor issuing from the bottle; its contents were cloudy, but he did not know what "stuff was in the bottle". As a consequence of drinking the beverage he was immediately made ill, and he vomited in the lot behind the store.

The druggist, Mr. Mackey, said that he saw the plaintiff drinking the coca-cola, and that he immediately complained of it. He saw him gag and show every evidence of nausea. The coca-cola bottle and its contents were introduced in evidence, and this witness identified it as the same bottle sold to the plaintiff. He testified that the plaintiff had requested him to keep the bottle and its contents, and that it had been in his possession since July 4th, the day the plaintiff made the purchase. He also said that he detected an odor escaping from the bottle, and that the contents introduced in evidence were slightly darker at the time the bottle was sold than on the day it was introduced in evidence at the trial. This witness administered a dose of peppermint to the plaintiff, and Dr. Weatherby, a practicing physician of Heath Springs, treated the plaintiff the next day. Several other witnesses present in the store at the time the plaintiff drank the coca-cola, and who saw him drink it, corroborated his testimony. Evidence for the plaintiff tended further to show that he suffered severe cramps in the stomach, was ill about a week, and lost nine pounds in weight, which he has never regained. Plaintiff testified that he had never been sick a day for eight years previous to the time he drank the coca-cola.

Testimony for the defendant tended to show, in accordance with the allegations of the answer, that its bottling plant was at the time in question and prior thereto modern and efficient in every respect, being equipped with the latest improved machinery; that the bottling process, including the most thorough cleansing of the bottles, as well as the filling thereof, is carried on by such a scientific and perfect mechanical method as to eliminate the possibility of error. The defense testimony tended further to show that the manufacturing process from its beginning to the end was accompanied by the most rigid and most searching inspection by expert employees, and that the plant was double screened against flies and insects. The bottle in question having been introduced in evidence, the defendant had one of its witnesses pour out some of the contents into a glass, and in the liquid were found some decomposed peanuts in a fermented condition, which gave off an odor.

The first question presented by the appeal is: Where a complaint alleges damages for personal injury and humiliation by drinking a non-alcoholic beverage containing foreign or deleterious matter, is testimony properly admissible to prove that the plaintiff hired another to do his work while he was incapacitated, and that he paid him a sum stated therefor--where not specifically alleged in the complaint as elements of special damage?

There is no allegation in the complaint that the respondent's business was damaged by reason of his personal injury, or that it was necessary for him to employ someone to conduct his business during his disability. The damage alleged is for humiliation, injury to health and digestion, impairment of taste for certain foods and drinks, and injury to general physical condition, and that by reason of the injuries sustained plaintiff continued to suffer for a considerable length of time.

Over objection, the plaintiff was permitted to testify that by reason of his physical indisposition he had to employ someone to do the work he ordinarily did, for a period of four weeks at the rate of $40 per week, and in addition that he had to pay mileage on one car, amounting to from $6 to $15 per week.

The Court ruled that the testimony above referred to was admissible as showing what expenses the plaintiff incurred as a result of his inability to work. Appellant concedes that, without being pleaded, the plaintiff's expenses for medical attention, hospitalization and medicine would be proper items of general damage, but contends that unless specially pleaded no expense which the respondent incurred by reason of employing another person to do his work or to attend to his business would be admissible.

It is generally agreed that a general allegation of damages will suffice to let in proof and to warrant recovery of all such damages as naturally, logically and necessarily result from the unlawful act complained of; the law implies such damage. But where damages do not necessarily result from the act complained of, and consequently are not implied by law, the plaintiff must state the particular damage sustained in order to introduce testimony in regard to it. The rule is to avoid surprise. Sonneborn & Co. v. Southern R.

Co., 65 S.C. 502, 44 S.E. 77; Lipscomb v. Tanner, 31 S.C. 49, 9 S.E. 733; 15 Am. Jur., Section 305, Page 747.

Expenditures for the hiring of a substitute while a complainant is disabled because of a personal injury are regarded as special damages, which must be alleged in order to be proved.

A case directly in point on this principle is that of Gumb v Twenty-Third Street Ry. Co., 114 N.Y. 411, 21 N.E. 993. The action in that case was brought against a street railway company for negligently striking plaintiff's wagon and overturning it, whereby he was injured and the wagon broken. The complaint did not allege as special damages that the plaintiff was compelled...