Lamb v. Boyles
| Decision Date | 17 November 1926 |
| Docket Number | 391. |
| Parties | 192 N.C. 542, 49 A.L.R. 589 v. BOYLES. LAMB |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davidson County; Harwood, Judge.
Action by D. J. Lamb against J. W. Boyles. Judgment for plaintiff and defendant appeals. Error.
Proof of personal injury, resulting from use of article sold or manufactured, does not, of itself, establish negligence of seller or manufacturer.
Appeal by defendant from Harwood, J., at July term, 1926, of the superior court of Davidson county, from a judgment on the following verdict:
(1) Did the defendant negligently manufacture and distribute ale unfit for human consumption, as alleged in the complaint? Answer: Yes.
(2) If so, was the plaintiff injured in consequence of drinking such ale? Answer: Yes.
(3) What damages, if any, has plaintiff suffered by reason of defendant's wrong? Answer: $500.
Raper & Raper, of Lexington, for appellant.
Phillips & Bower, Walser & Walser and Z. I. Walser, all of Lexington for appellee.
The plaintiff alleges that on December 11, 1925, he bought from the Amazon Cotton Mill Café a bottle of strawberry ale, which the defendant had manufactured and placed on the market; that the bottle contained some kind of noxious substance; that while drinking the ale, he was taken sick and, in consequence, was confined to his bed for several days; that his vision was impaired; that, for many weeks, he was unable to do his usual work; that the defendant negligently prepared and sold an unwholesome drink; and that the defendant's negligence was the direct cause of the plaintiff's injury. In the answer, the material allegations in the complaint are denied, and it is alleged that all known precautions were applied to sterilize the bottles, and that the bottle in question did not contain anything that was pernicious or harmful.
There is an allegation in the complaint that the ale was prepared for use as a beverage, and that there was an implied warranty of its quality; but the basis of the action is the alleged negligence of the defendant in putting the ale into a bottle containing a deleterious substance. As shown by the issues, the case was tried upon this theory; and, when a party has elected to try his case on a particular theory, he may not change his position with respect to it when the case is heard in the appellate court. Walker v. Burt, 182 N.C. 325, 109 S.E. 43.
The chief assignment of error is addressed to the refusal of the trial court to dismiss the action as in case of nonsuit. Testimony offered by the plaintiff as to other alleged acts of negligence on the part of the defendant was held not to be admissible as substantive evidence on the first issue, and, as such, it was accordingly excluded. The motion for nonsuit was made to rest, not on the ground of the defendant's nonliability if he was negligent, but on the ground that the admitted evidence does not show actionable negligence. Ramsey v. Oil Co., 186 N.C. 739, 120 S.E. 331; Cashwell v. Bottling Works, 174 N.C. 324, 93 S.E. 901; Ward v. Sea Food Co., 171 N.C. 33, 87 S.E. 958; Dail v. Taylor, 151 N.C. 285, 66 S.E. 135, 28 L. R. A. (N. S.) 949; Oil Co. v. Deselms, 212 U.S. 159, 29 S.Ct. 270, 53 L.Ed. 453; 26 C.J. 784, § 92 et seq.
The evidence most favorable to the plaintiff tends to show that, after drinking about half of the ale, he became sick, went outside the café, vomited, was carried home, was not able to work, suffered from impaired eyesight, and for one or two days was blind. There was no analysis of the ale, no direct evidence of any foreign matter, no specific indication of any poison. Negligence is not presumed from the mere fact that the plaintiff was injured (Isley v. Bridge Co., 141 N.C. 220, 53 S.E. 841), and there is no evidence of a latent defect actually or constructively known to the defendant. In the absence of more definite evidence of negligence, the plaintiff resorts to the doctrine founded on the maxim res ipsa loquitur, insisting that the circumstances of his sickness were of such a character as would justify a jury in inferring negligence as the cause of his condition.
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