Jasper Coca Cola Bottling Co. v. Breed

• Decision Date: 13 October 1959
• Docket Number: 6 Div. 658
• Citation: 115 So.2d 126,40 Ala.App. 449
• Parties: JASPER COCA COLA BOTTLING CO. v. Erlene BREED.
• Court: Alabama Court of Appeals

Page 126

115 So.2d 126

40 Ala.App. 449

JASPER COCA COLA BOTTLING CO. v. Erlene BREED.

6 Div. 658.

Court of Appeals of Alabama.

Oct. 13, 1959.

Tweedy & Beech, Jasper, for appellant.

Fite, Wilson & Fite and Arthur Fite, Jr., Jasper, for appellee.

PRICE, Judge.

Plaintiff sued the Jasper Coca Cola Bottling Company for damages for personal injury resulting from defendant's negligence in bottling and selling a bottle of Caca Cola containing a burned match or other kind of wood. There was verdict and judgment for plaintiff in the sum of $700. Defendant appeals.

Plaintiff's evidence tended to show that on April 20, 1957, her son-in-law bought a Coca Cola for her at the A. & P. store in Jasper. After drinking a part of it she became choked, nauseated, vomited and caught a burned match in her hand. After leaving the store her daughter drove around a few blocks looking for a doctor's office but they were strangers in town and unacquainted with Jasper doctors, they decided to drive to Haleyville, where they lived. Plaintiff vomited two or three times along the way. It was after dark when they reached Haleyville and they went directly to the hospital. Dr. Blake was called to the hospital where he treated plaintiff. She has been under his constant care since that time. She suffered a great deal of pain, was highly nervous, rendered hoarse and was still suffering pain and hoarseness when the case was tried on the 1st day of April, 1958.

Dr. Robert Blake testified when he sew plaintiff on April 20, 1957, she was complaining of pain in her throat, nausea, and was nervous. Upon examination of her throat he found a small area of trouble on the posterior surface of her left vocal cord. In order to see the posterior surface of the vocal cords it is necessary to use a laryngoscope, an instrument for examining the larynx. This instrument is 'a rod that bends, with a mirror on it--you might call it a periscope operation.' By the use of this instrument he was able to see the laceration of the left vocal cord but he would not have been able to see such laceration by an ordinary examination, such as when a person's tongue is examined with an ordinary light or mirror. Dr. Blake further testified the laceration he found on plaintiff's vocal cord caused some vocal distortion, and it was his opinion the injury was caused by some object being in her throat. He testified further that plaintiff had been to his office some 18 or 19 trips. At first she came every four or five days and later came every three or four weeks. She responded normally to treatment. He stated there was scar tissue on the vocal cord with a result of hoarseness, and that such condition will persist.

Dr. Blake testified on cross examination it was 8:00, 9:00 or 10:00 o'clock at night when he first saw plaintiff, and at the time she told him she had been to see some one else but wasn't given much of an examination and came on to see him.

For defendant, Mr. Carl Burton, Manager of the A. & P. Store at Jasper, testified plaintiff showed him what appeared to be a burned match, or a piece of wood the size of a burned match, or a piece of wood the the match in her throat when she drank the Coca Cola. She had it in her hand when he saw it. Plaintiff never vomited in his presence and he didn't see or smell any vomit on her dress. She did not appear to be sick and said nothing about wanting to see a doctor.

Ralph Gilliland, a store employee, testified he called the manager after plaintiff showed him a match stem which she said she got from the Coca Cola. She did not appear to be sick, was not coughing or strangling and to his knowledge she did not vomit and he observed no appearances of her having been sick.

Dr. John R. Simons, an eye, nose and throat specialist, testified he was practicing in Jasper and had had special training in Chicago, New York, Boston and New Orleans. Dr. Simons stated he examined plaintiff on December 5, 1957, at defense counsel's request. He described his examination of her throat and said he found her vocal cords perfectly normal. There was no scar tissue and no evidence of any injury to her throat. She was not hoarse when he examined her. Dr. Simons stated he made the examination with a laryngeal mirror. On cross examination he described the difference between a laryngeal mirror, used by him, and a laryngoscope, which Dr. Blake testified he sued. He stated that a laryngoscope goes down a patient's throat from six to eight inches and it is recognized by the medical profession as the correct instrument to use in some cases; that he did not use a laryngoscope and the instrument he used could be likened to a mirror dentists use, and a stick or a probe. On direct examination he said a very good view of the vocal cords can be had with a laryngeal mirror.

Defendant presented evidence by Mr. Ernest McKeever, its superintendent in charge of...