Jackson Coca-Cola Bottling Co. v. Grubbs

• Decision Date: 17 May 1926
• Docket Number: 25474
• Citation: 143 Miss. 590,108 So. 732
• Court: Mississippi Supreme Court
• Parties: JACKSON COCA-COLA BOTTLING CO. v. GRUBBS. [*]

108 So. 732

143 Miss. 590

JACKSON COCA-COLA BOTTLING CO. v. GRUBBS. ^[*]

No. 25474

Supreme Court of Mississippi

May 17, 1926

Division A

Suggestion of Error Overruled June 15, 1926.

APPEAL from circuit court of Simpson county, HON. R. S. HALL Special Judge.

Suit by Mrs. Callie Grubbs against the Jackson Coca-Cola Bottling Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Judgment reversed.

Watkins Watkins & Eager, for appellant.

The trial court erred in refusing to give the directed instruction requested by appellants at the conclusion of the testimony. This court has held in cases involving liability of the manufacturer of soft drinks, such as coca-cola, to the ultimate consumer, that there is an implied warranty on the part of the manufacturer that the beverage is wholesome and fit for human consumption and that a failure to comply therewith constitutes a cause of action on the part of the consumer. We have no objection to this announcement of the law, but in the case at bar there was not one iota of competent testimony introduced which in anywise connected these appellants with the manufacture or distribution of this particular coca-cola drunk by appellee. The court will bear in mind that it is not sufficient to show that the appellants merely distributed the bottle of coca-cola in question by truck to Simpson county, because this court along with the great majority of other courts of other states have held that no liability would exist under such circumstances on the part of a distributor. As a matter of fact, no competent evidence appears in the record to show that these appellants, or either of them, distributed or even sold or delivered the particular bottle of coca-cola in question. Nor is there the slightest competent testimony which tends to show that these appellants, or either of them, manufactured or bottled the particular bottle of coca-cola purchased by the husband of appellee and by her drunk. In order to make out a case, admitting for the sake of argument, that jurisdiction had been properly obtained as to these appellants, it was necessary for appellee to show by competent testimony the following facts:

(a) That the particular bottle of coca-cola which she drank was manufactured, bottled and distributed to the retail dealer, Burnham, by both or one of appellants;

(b) That this particular bottle of coca-cola from the time that it was delivered by appellants, or either of them, to the retail dealer, Burnham, and the time that appellee's husband purchased said bottle of coca-cola that the contents thereof were not in any manner disturbed, nor the cap removed from said bottle, or any opportunity afforded whereby foreign matter could have been allowed or permitted to get into said bottle of coca-cola after it left the hands of appellants and before it was sold to and delivered to appellee;

(c) That appellee drank the contents of said bottle and received into her system glass resulting in pain, suffering and injury to herself.

The matter was presented to the jury, not on competent evidence, but upon speculation and conjecture and the only way they could connect these appellants with the manufacture and distribution of the bottle and its contents was upon the grossest presumption, there being no fact to justify such a finding.

R. C. Russell, for appellee.

Appellants in their discussion admit that if they manufactured and sold the coca-cola and the plaintiff was injured as complained of in her declaration, by the drinking of this coca-cola which contained the glass, that a case of liability would have been made out against somebody, but allege that there is no proof that appellant manufactured this bottle; yet Mr. Borden admits in his affidavit that he did at, before, and subsequent to this injury, manufacture coca-cola in Jackson, Mississippi, bottling and selling the same to J. R. Burnham, and that Burnham was at the time a retail dealer in this territory. Plaintiff's witnesses testified that they saw the Jackson Coca-Cola Bottling Company's truck delivering coca-cola to J. R. Burnham just before this injury. Other testimony shows that the Jackson Coca-Cola Bottling Company, or Mr. Borden, had Simpson county in its territory and that no other dealers sold coca-cola there.

This testimony certainly was sufficient to put the case to the jury and it found in favor of the plaintiff. In fact, Mr. Borden's admission is sufficient to carry the cause to the jury.

Watkins, Watkins & Eager, in reply, for appellant.

Counsel for appellee seems to proceed on the theory with utterly no proof to support it that the evidence shows that either P. L Borden or the Jackson Coca-Cola Bottling Company...