Jackson Coca-Cola Bottling Co. v. Chapman

• Decision Date: 13 April 1914
• Docket Number: 16,418
• Citation: 106 Miss. 864,64 So. 791
• Court: Mississippi Supreme Court
• Parties: JACKSON COCA COLA BOTTLING CO. v. HARRY CHAPMAN

64 So. 791

106 Miss. 864

JACKSON COCA COLA BOTTLING CO. v. HARRY CHAPMAN

No. 16,418

Supreme Court of Mississippi

April 13, 1914

APPEAL from the circuit court of Hinds county, HON. W. A. HENRY Judge.

Suit by Harry Chapman, by his next friend Nellie Chapman, against the Jackson Coca Cola Bottling Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Case affirmed.

Chalmers Alexander, for appellant.

In 29 Cyc. 486, it is stated that "As to the principle upon which those who deal in unwholesome food are liable to persons injured thereby, the authorities do not seem to be altogether harmonious." The footnotes refer to Salmon v. Libby, 114 Ill.App. 258, and to Craft v. Parker, 98 Mich. 248, and to Van Bracklin v Fonda, 7 Am. Dec. 339. These cases uphold the idea that the wholesaler of unwholesome food is liable to the ultimate consumer. Reference is made to Watson v. Augusta Brewing Co., 124 Ga. 123, 110 Am. St. Rep. 157, 1 L. R. A. (N S.) 1178, which case holds the manufacturer of a bottled beverage liable, and which is opposed to the holding in Salmon v. Libby, supra.

In O'Neill v. James, 138 Mich. 567, 110 Am. St. Rep 321, it was held that where a bottler of champaign cider sells it without knowledge that the bottles are charged improperly, he is not liable to the buyer's employee, who loses an eye through the explosion of one of the bottles. See Weizer v. Holzman, 33 Wash. 87, 99 Am. St. Rep. 932.

We accordingly, as the second reason herein above-named, insist that there was no such privity of relationship between the company and appellee as will entitle the appellee to recover in law.

We object to the instructions given in favor of appellee. The first instruction as shown on page 88 says in effect that if the jury believe that the beverage was bottled by defendant and placed on the market for sale while containing a dead rat, the plaintiff was made sick by drinking, then the verdict should be for the plaintiff. Our objection to this instruction is that it leaves out of consideration the fact that the plaintiff should have exercised proper care at the time when drinking. Certainly some obligation and requirement of prudence must rest upon the plaintiff in a case like this.

There is no limitation in instruction to show that plaintiff himself should have exercised reasonable care and caution. Suppose that in this case the plaintiff knowingly bought the stuff and drank it, and so was made sick thereby, should there be a recovery? Suppose that the plaintiff wilfully bought the concoction and got sick as a result, should the jury award the verdict for the plaintiff?

Lamar F. Easterling, for appellee.

We contend that, inasmuch as the appellee, who is a manufacturer and dispenser of a proprietory beverage or drink, who advertises his said beverage as being a harmless, delicious and refreshing drink to the public, and places the said bottled beverage upon the market for consumption by the public, that there is an implied warranty that the beverage so bottled and sold conforms to the nature of the advertisement and purposes for which it is bottled, and that any customer or consumer has a right to rely upon the fact that said beverage is harmless and contains no foreign or deleterious substance, and that the same was properly prepared and properly bottled for consumption. It is not for appellee to show the manner in which the deleterious or foreign substance got into the bottle that he purchased. The very fact that the mouse did get into the bottle and was bottled in coca cola and was sold and placed upon the market for consumption by the public, is sufficient proof that the appellant company was negligent, and that it did not take the proper care and caution in the bottling and dispensing of its beverage. Can it be urged with any show of reasoning that a manufacturer who manufactures and bottles a beverage or drink for the public consumption and places the same upon the market can escape liability on the ground that he did not actually sell it to the particular individual who drank it.

We refer the court to the case of Watson v. The Augusta Brewing Co., reported in first L. R. A. (N. S.) page 1178. This is a case squarely in a point we think with the case before the court. In that case the declaration shows that the Augusta Brewing Company sold to a merchant in Thompson, Georgia which the merchant placed upon sale relying on the implied warranty of defendant that said soda water was suitable for saleable purposes as a refreshing and harmless drink. Some of this soda water was, with the permission of the merchant mentioned, taken from his stock by the plaintiff and drunk from the bottle. While drinking said soda water plaintiff swallowed three pieces of glass, or more perhaps, without knowing it, and one piece lodged in plaintiff's throat. Suit was brought against the ...