Jackson v. Cushing Coca-Cola Bottling Co.
| Decision Date | 17 September 1968 |
| Docket Number | COCA-COLA,No. 41667,41667 |
| Citation | 445 P.2d 797 |
| Parties | 5 UCC Rep.Serv. 816, 1968 OK 131 Gladys JACKSON, Plaintiff-in-Error, v. CUSHINGBOTTLING COMPANY, a corporation, Defendant-in-Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
In actions of legal cognizance a demurrer to plaintiff's evidence should be overruled unless there is an entire absence of proof tending to show a right to recover; and in passing upon a demurrer to the evidence, the trial court must consider true all of the evidence favorable to the party against whom demurrer is directed together with all inferences that may be reasonably drawn therefrom and disregard all conflicting evidence favorable to the demurrant.
Appeal from the District Court of Payne County; R. L. Hert, Judge.
Tort action brought by plaintiff praying damages for personal injuries. The trial court sustained defendant's demurrer to plaintiff's evidence and plaintiff appeals. Reversed and remanded with directions.
James B. Browne, Cushing, for plaintiff in error.
Hoel & Horton, Stillwater, for defendant in error.
This case involves a situation, where plaintiff, Gladys Jackson (plaintiff in error here) sued the defendant in error, Cushing Coca-Cola Bottling Company, a corporation, as defendant, in an action for damages for personal injuries. At the conclusion of plaintiff's evidence the trial court sustained a demurrer to the evidence. After plaintiff's motion for a new trial was denied, plaintiff appeals. The parties will be referred to as they appeared in the trial court.
Plaintiff's petition alleged that she operated a cafe in Cushing, Oklahoma; that she purchased Coca-Cola from the defendant for her own consumption and for resale to the public; that on September 14, 1963, plaintiff drank a portion of a bottle of such Coca-Cola which was contaminated by foreign substances and that within about 20 minutes thereafter she became violently ill and was confined to her bed for a short period of time. Plaintiff sued for damages for medical expense, loss of income and pain and suffering.
The defendant's answer consisted of a general denial.
Plaintiff testified that she purchased the Coca-Cola in question from the defendant and that she drank a portion of the bottle; that as she was drinking from the bottle she felt something in her mouth and spit it out; that she noticed foreign substances in the bottle and soon thereafter became nauseated, ill, vomited, suffered diarrhea, and sought the services of a physician. The testimony of plaintiff that the bottle in question contained foreign substance was corroborated.
Two doctors were called by plaintiff as medical experts who both testified by deposition.
Dr. L was both a physician and pathologist of eminent qualifications. Dr. L testified that from his examination of the foreign particles in the unconsumed portion of the bottle revealed the same to be cellulose; that he didn't find any bacteria of botulism in the remains of the bottle and found no poisonous elements in the bottle; that there was not a sufficient quantity of cellulose itself to be irritating or cause diarrhea unless there was an irritating substance in the particular cellulose; that no substance was found which would be associated with any known cause for food poisoning.
On re-direct examination Dr. L testified as follows:
'Q Doctor, I believe that you testified that when you received the bottle that it was approximately one-third (1/3) full?
A Yes.
Q And there were small particles floating on the surface?
A Yes.
Q Could your examination of this bottle, as you received it, indicate the total number of particles that were in the bottle at the time that it was full?
A No, of necessity, of course not. We an only examine what we see.
Q Would it be possible, if a number of particles were present that had been consumed, that they could have been of sufficient magnitude ot act as an irritant and caused gastroenteritis?
A Particles of what kind?
Q Of the same type that was found.
A I would say this is possible if such particles were not a part of the fluid which we received. In other words, if they were separate and would not have inter-mingled with the fluid. In other words, if there had been a severe poison contained in it, I would expect it to still be demonstrable in the fluid, but if there were some loose particles--if some loose particles were present which were not mixed with the fluid, then they could have been prezent.'
Dr. L did not personally physically examine plaintiff.
Dr. D, a qualified physician and...
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