Laurel Coca-Cola Bottling Co. v. Hankins

• Decision Date: 22 November 1954
• Docket Number: No. 39361,39361
• Parties: LAUREL COCA COLA BOTTLING COMPANY v. Mrs. Gladys HANKINS.
• Court: Mississippi Supreme Court

Page 731

75 So.2d 731

222 Miss. 297

LAUREL COCA COLA BOTTLING COMPANY v. Mrs. Gladys HANKINS.

No. 39361.

Supreme Court of Mississippi.

Nov. 22, 1954.

Beard, Pack & Ratcliff, Laurel, Watkins & Eager, Jackson, for appellant.

L. D. Pittman, R. S. Tullos, O. O. Weathersby, Raleigh, Barnett, Jones & Montgomery, Jackson, for appellee.

LEE, Justice.

Mrs. Gladys Hankins obtained a judgment in the Circuit Court of Smith County against Laurel Coca Cola Bottling Company, a corporation, in the sum of $12,000, and the Bottling Company appealed.

The suit was a claim for damages, alleged to have been sustained by her as the result of drinking a portion of the contents of a coca cola. The graveamen of the complaint, for all practical purposes, is found in the following paragraph of the declaration to wit: 'That this coca cola partially drank by plaintiff on April 3, 1952, in Smith County, Mississippi, contained a foreign substance known as 'Acid Iron Earth Water', and that the defendant company manufactured, sealed, delivered and sold said Coca Cola under an implied warranty that same was pure and wholesome and fit for human consumption, and plaintiff alleges that the violation of this implied warranty by the defendant company was and is the cause of plaintiff's discomforts:'

Mrs. Hankins bought the coca cola in question on the morning of April 3, 1952, at the Middleton Store in the Center Ridge Community of Smith County. Her proof, in which she was corroborated, and which was not disputed, showed that she carried the drink home, a short distance away, and put it in the refrigerator. It was conclusive that the defendant bottled the coca cola, and there was no proof that it was tampered with between the time of bottling and drinking. Some time after dinner, about 1:30 o'clock, she opened the bottle and drank a portion of the contents. As she described it, immediately her throat closed, there was a feeling like a coal of fire in her stomach, and when she got her breath, what she had drunk gushed out. Some of the expelled substance got on her dress and a rug and made holes in those articles. She took a drink of water, turned deathly sick and vomited. At the suggestion of a nearby neighbor, she ate a quantity of butter, but failing to obtain relief, she went to Dr. C. A. Kennedy at Taylorsville. He gave her a prescription which she took according to directions, but it afforded her no relief. The next morning she went to Dr. W. M. Coursey at Raleigh. She complained of a burning sensation in her mouth and stomach and was nauseated and vomiting. From the history and examination, he diagnosed her trouble as gastritis, or an inflammation of the lining of the stomach. He saw the residue in the bottle, which was at least half full, and observed several large gelatine-like 'clumps' in it, with the appearance and color of frozen coca cola. There was some free liquid, but, in his opinion, the lumps would not have run out, if the bottle had been turned upside down. He gave Mrs. Hankins a hypodermic and prescribed an alkali. At his suggestion, the husband of Mrs. Hankins carried the bottle and its contents to Mississippi State College for analysis.

Mrs. Hankins returned home, and the next day, having failed to obtain relief, she entered the hospital and cline of Dr. W. C. Simmons at Bay Springs. From the history and his examination, Dr. Simmons was of the opinion that she had every symptom of actue gastritis with neurasthenia, for which he treated her. After some time, concluding that she was somewhat psychotic, he sent her to Dr. R. T. McLaurin at Laurel for X-rays and a complete internal examination. She then returned to Dr. Simmons' hospital and was a patient therein off and on until some time in October following.

Finally she went to Touro Infirmary in New Orleans on December 6th, where she was treated by Dr. George Welch, who was of the opinion that she was made acutely ill by drinking the coca cola. Various tests were made, including a gastroscopic examination, and finally an exploratory operation, when it was found that she had some inflammation in the upper third of the stomach. He was positive in his opinion that she was not psychotic, but initially sustained a physical injury.

Prof. S. J. Few, a chemist at the college, analyzed the remaining contents in the bottle. He made known his findings to Dr. M. P. Etheredge, his superior, who called Dr. Coursey over the telephone that same evening. However, the substance of that report is not in the record, although several days later, on April 9, 1952, he wrote a letter to Mr. Hankins about the analysis as follows:

'We called Dr. Coursey approximately 7:00 p. m. after you were here about the middle of the afternoon one day last week, and we reported to him that the liquid in Coca-Cola bottle did not contain any common poisons, and it seemed to be what is commonly known as an acid iron earth water. The principal constituent in an acid iron earth water is ferric sulfate, and it would be rather acid in nature. We understood from Dr. Coursey over the telephone that he would know how to treat your wife, and we sincerely trust that she is now all right. This examination was made by S. J. Few, Assistant State Chemist.'

Prof. Few testified concerning his analysis. He said that coca cola contains phosphoric acid, and that acid iron earth water contains ferrous sulphate, and that when these two substances are combined, they form iron phosphate and leave a quantity of sulphuric acid. He also testified that there was a considerable amount of solid ferric phosphate and ferrous sulphate, or sulphuric acid, in the bottle, although he did not determine the exact quantity. However, there was enough to be harmful, if taken internally, and he wanted the doctor to know. That was the reason for the call by Dr. Etheredge to Dr. Coursey.

Dr. McLaurin, to whom Dr. Simmons sent Mrs. Hankins, testified generally as to the effect of sulphuric acid, but, on objection by the plaintiff, he was not permitted to testify concerning his examination of Mrs. Hankins. Dr. Kennedy's testimony was likewise limited because of objection on account of a privileged communication.

Sulphuric acid is poisonous, and, according to the evidence, damage from its use depends on the quantity. In concentrated form, it will burn and leave scars. Plaintiff's evidence did not claim that it was concentrated. Besides, she vomited immediately, and evidently only a small quantity of the solution remained in her stomach.

The defense was twofold: (1) Defendant's method of bottling was so efficient that it was impossible for acid iron earth water to get into the bottle, and (2) the plaintiff was passing through the menopause; she was troubled with nausea prior to drinking the coca cola; and her injury was greatly exaggerated.

The defendant went into great detail in explaining its method of manufacture and bottling, showing that it used the common and accepted process employed by coca cola manufacturers all over the country. The bottles were rinsed and washed many times, both inside and outside. Water, containing cleansing substances, was forced into the bottles through spigots, at high temperature and under pressure. In addition revolving brushes were used. It is sufficient to say that, under the proof, the defendant employed a very efficient process of bottling.

Because of the efficient and complete process of manufacture and bottling, the appellant argues with great zeal that its requested peremptory instruction should have been given.

No legal principle is better settled in this State than that "When a manufacturer makes, bottles, and sells to the retail trade, to be again sold to the general public, a beverage represented to be refreshing and harmless, he is under a legal duty to see to it that in the process of bottling no foreign substance shall be mixed with the beverage * * *." Jackson Coca Cola Bottling Company v. Chapman, 106 Miss. 864, 64 So. 791; Rainwater v. Hattiesburg Coca Cola Bottling Co., 131 Miss. 315, 95 So. 444; Grapico Bottling Company v. Ennis, 140 Miss. 502, 106 So. 97, 44 A.L.R. 124; Coca Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305; Chenault v. Houston Coca Cola Bottling Co., 151 Miss. 366, 118 So. 177; Blount v. Houston Coca Cola Bottling Co., 184 Miss. 69, 185 So. 241; Delta Nehi Bottling Company v. Lucas, 184 Miss. 693, 185 So. 561; Coca Cola Bottling Works v. Petty, 190 Miss. 631, 200 So. 128. An injured person is not required to prove negligence. Res ipsa loquitur applies. Blount v. Coca Cola Bottling Company and Coca Cola Bottling Works v. Petty, supra.

In Coca Cola Bottling Company v. Chapman, supra, the system for cleansing and filling bottles was complete and there was watchfulness to prevent the mouse from getting into the bottle. Nevertheless it did. In Coca Cola Bottling Works v. Lyons, supra [145 Miss. 876, 111 So. 307], it was...