Lewis v. Linkett, 4 Div. 872

• Decision Date: 19 March 1936
• Docket Number: 4 Div. 872
• Parties: LEWIS et al. v. LINKETT.
• Court: Alabama Supreme Court

167 So. 286

232 Ala. 233

LEWIS et al. v. LINKETT.

4 Div. 872

Supreme Court of Alabama

March 19, 1936

Rehearing Denied April 23, 1936

Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.

Action for damages by Sarah Francis Linkett against G.M. Lewis and W.A. Bellingrath, individually and as partners under the firm name of Coco Cola Bottling Company. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under section 7326, Code 1923.

Affirmed.

Farmer Merrill & Farmer and G.M. Harrison, all of Dothan, for appellants.

O.S Lewis, of Dothan, for appellee.

THOMAS Justice.

The suit was for personal injury, the result of alleged poisonous contents of a bottled drink that was purchased and consumed.

The assignments of error insisted upon are the refusal of the trial court to give the general affirmative charge requested and denying the defendants' motion for a new trial on the ground that the verdict was excessive.

The rules governing the giving or refusing of affirmative instruction need not be restated. McMillan v. Aiken et al., 205 Ala. 35, 40, 88 So. 135.

A case of this nature was the subject of Reichert Milling Co. v George, 230 Ala. 3, 162 So. 393; Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667; Try-Me Beverage Co. et al. v. Harris, 217 Ala. 302, 116 So. 147; Whistle Bottling Co. v. Searson, 207 Ala. 387, 92 So. 657; McCarley v. Wood Drugs, Inc., 228 Ala. 226, 153 So. 446.

It has been declared that the presence of foreign matter deleterious to health in a bottle containing a soft drink is evidence of negligence. Under the evidence the questions of fact were for the jury. There was no error in refusing affirmative instruction requested.

The many assignments of error are limited to those insisted upon in argument, and are so considered. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

It is insisted there was error in declining to allow Dr. Roberts to answer the following question:

" 'No, I asked you if in your opinion as a physician, the Coca-Cola with the metal in it, assuming there was metal in the Coca-Cola she drank, the kind she says, or her husband says, assuming that she drank that concoction, from the history she gave you and from your own examination of her on those two visits,--I asked you as a physician if her nervous condition was not due, in your opinion, to a psychological or mental attitude and not to the Coca-Cola that she drank?' "

"I examined that substance that day they showed it to me and I can't tell the jury that is the same substance that was shown me on that day as being in the Coca-Cola bottle. I couldn't say for certain it was copper. I haven't any opinion on it. Looked like zinc or copper to me at that time and I so expressed myself before them. It looked like copper or zinc. I said it was copper in my judgment--looked like copper."

And on redirect examination Dr. Roberts testified: "It is my recollection that I told them if it was zinc it was poisonous, too."

The witness had theretofore testified: "I saw the substance they said was in the bottle. I saw the Coca-Cola bottle with the amount in it. I got some of it in my office that was poured out of a bottle. There was more left in the bottle than is there, about up to that ring there (indicating). It could have been that the contents of this Coca-Cola that she drank caused, or had tendency to cause, the nervousness, and it could have...