Macon Coca-Cola Bottling Co. v. Chancey
| Decision Date | 15 January 1960 |
| Docket Number | COCA-COLA,No. 2,No. 37955,37955,2 |
| Citation | 112 S.E.2d 811,101 Ga.App. 166 |
| Parties | MACONBOTTLING COMPANY v. Mrs. Marvin CHANCEY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The portion of the charge complained of in the first special ground of the motion for new trial was not abstractly incorrect.
(a) In a suit for damages resulting from the plaintiff having consumed a quantity of a bottled soft drink containing a cigar butt or wad of tobacco, a prima facie case was made by the plaintiff when she showed the presence of the foreign object in the bottle which she purchased from a retail merchant and which was opened by a clerk in her presence.
(b) The plaintiff was not required to show the exact whereabouts of the bottle at all times after it left the plant of the defendant bottler, nor to show affirmatively that no person had had an opportunity to tamper with the bottle after it left the defendant's plant, in order to recover.
2, 3. Where grounds of a motion for new trial complaining of the illegal admission and exclusion of evidence show that the trial judge reserved his final ruling on the issue as to the admissibility of the evidence when objection was made, and fail to show that the matter was thereafter called to his attention, or that a final ruling was ever invoked, such grounds fail to present any question for decision.
4. Under the facts of this case the evidence as to future mental and physical pain and suffering was admissible and the trial court did not err in so charging the jury as to submit this element of the plaintiff's case to the jury.
5. The evidence authorized the verdict.
Mrs. Marvin Chancey filed an action for damages against the Macon Coca-Cola Bottling Company seeking to recover for damages resulting to her when she consumed a portion of a bottled soft drink in which there was alleged to have been a wad of tobacco or a cigar butt. On the trial the jury returned a verdict for the plaintiff for $1,000. The defendant made a motion for new trial on the general grounds and on four special grounds. That motion was denied, and the exception here is to that judgment.
The evidence adduced on the trial made substantially the following case: The defendant is engaged in the business of bottling, selling and distributing to retail outlets the soft drink known as Coca-Cola. One of the outlets through which the defendant sells its product is Fruitticher Grocery and Market, located on Jeffersonville Road in Bibb County, Georgia. On April 12, 1958, the plaintiff purchased a bottle of Coca-Cola from Fruitticher Grocery and Market. The circumstances under which the purchase was made were that she drove up in her car and saw an employee of the market at or near the drink box. She told the employee that she wanted a Coca-Cola and he procured one from the drink box, opened it and handed it to her. She walked into the market, set her pocketbook down on the counter and proceeded to drink the Coca-Cola, at which time she discovered the presence therein of the cigar butt or a wad of tobacco, part of which she had swallowed. The plaintiff's evidence tended to show that as a result of this occurrence she suffered specified injuries and incurred medical expenses.
The defendant introduced evidence in considerable detail showing the care which it takes in bottling its products, and also showing the inspection made of the bottles of Coca-Cola both before and after they are filled so as to assure that no foreign object gets into the bottles, or that if it does the bottle is removed from those distributed. The delivery man or route salesman who delivered the Coca-Cola to Fruitticher's Market testified as to the manner and method in which he made his deliveries, including the fact that the truck on which the Coca-Colas were carried was rarely ever out of his sight while he was making deliveries, this evidence being designed to show that no one had an opportunity to tamper with the bottles before they were delivered to Fruitticher's Market.
It appeared from the evidence that the employee who opened the bottle for the plaintiff had a speech impediment which made it difficult, if not impossible, for him to intelligently communicate to others. For this reason, he did not testify on the trial.
Popper & Popper, Miller, Miller & Miller, Macon, for plaintiff in error.
Durward B. Mercer, S. Gus Jones, Neal D. McKenney, Macon, for defendant in error.
The defendant contends, and it may be conceded for the purposes of this decision, that the evidence shows that the particular Coca-Cola in question had been delivered to Fruitticher's Market some one to seven days prior to the time the plaintiff purchased it; that it had been stored on racks in front of or within the store in such a place as to have been easily accessible to others; that it was placed in the drink box at some time prior to the time that the plaintiff purchased it and that other persons could have had access to it and could have tampered with it, and that the possibility of tampering by others was not entirely excluded by the evidence adduced upon the trial. It may also be noted that no witness testified positively that the bottle had not been previously opened and reclosed at the time the market employee opened it for plaintiff.
1. The trial court instructed the jury as follows:
'I charge you further that whether an event is unusual and extraordinary in its nature, and there is nothing to indicate an independent efficient cause, but the peculiar character of the event is sufficient within itself to indicate that it must have been brought about by negligence upon the part of someone, and where the most reasonable and probable inference that can be rationally drawn from the happening of such an event is that it would not and could not have taken place had not the company charged with the manufacture of the instrumentality causing the injury alleged to have followed such an event been guilty of the particular acts or omissions set forth by the plaintiff, as constituting the actual cause, then the jury, in your judgment and discretion, would be authorized to apply the rule of evidence known as the doctrine of res ipsa loquitur in determining whether or not the accident must have been thus occasioned.'
In special ground 1 of the motion for a new trial, this portion of the charge is complained of as being error on numerous grounds, the substance of which are simply that the charge was not sound as an abstract proposition of law; that it was not adjusted to the evidence in the case because it permitted the jury to find against the defendant simply if something unusual happened; that it placed the burden on the defendant to show how the substance got in the bottle; and, finally, because the evidence was not sufficient to show that the bottle had not been tampered with after it had left the custody and control of the defendant bottler.
As to the first of these contentions, it is sufficient to say that substantially the same charge as here complained of has been approved of by this court on several occasions, as being an abstractly correct charge on the doctrine of res ipsa loquitur. See the discussion in Hotel Dempsey Co. v. Miller, 81 Ga.App. 233, 234(1), on page 236, 58 S.E.2d 475, and the cases cited therein. The judge had previously instructed the jury that the burden was on the plaintiff to make out her case by a preponderance of the evidence and that the defendant was not an insurer...
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