Madouros v. Kansas City Coca-Cola Bottling Co.

• Decision Date: 06 January 1936
• Citation: 90 S.W.2d 445,230 Mo.App. 275
• Parties: GUS MADOUROS, RESPONDENT, v. KANSAS CITY COCA COLA BOTTLING COMPANY, APPELLANT
• Court: Kansas Court of Appeals

90 S.W.2d 445

230 Mo.App. 275

GUS MADOUROS, RESPONDENT, v. KANSAS CITY COCA COLA BOTTLING COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

January 6, 1936

Appeal from Circuit Court of Jackson County.--Hon. Thomas J Seehorn, Judge.

AFFIRMED.

Judgment affirmed.

Cope & Hadsell and Hume & Raymond for respondent.

Harris & Koontz for appellant.

TRIMBLE J. Shain, P. J., concurs; Bland, J., dissents in separate opinion.

OPINION

TRIMBLE, J.

In a suit for damages on account of personal injuries, plaintiff obtained a verdict for $ 2000. Motion for new trial was filed, one point of which was that the verdict was excessive. After affidavits were filed in support of, and in opposition to, the motion, but before it was ruled on by the court, plaintiff remitted the sum of $ 1000, whereupon judgment was rendered for the remaining $ 1000, the motion for new trial was overruled, and the affidavits were stricken out. Defendant thereupon appealed.

The case was originally argued in this court and submitted at the March term, 1935, and an opinion by one of the judges was handed down May 13, 1935, in which the judgment was reversed. A motion for rehearing having been sustained, the case was reheard at the October term, October 15, 1935, and is now again before us for consideration.

The petition, after stating the incorporation of defendant, alleged that it is--

"Engaged in the general business of manufacturing, bottling, selling and distributing to the retail trade to be resold to the public a bottled beverage known under the trade name 'Coca Cola,' and that among other customers to whom defendant sold its said product was one Gus Poulos, retailer, located at 12th and Cherry Streets, in Kansas City, Missouri, who in turn resold to the public the 'Coca Cola' which was delivered to the said Gus Poulos, bottled and sealed by defendant, and represented by defendant as a healthful, refreshing and wholesome beverage; that among other bottles of 'Coca-Cola' so bottled, sold and delivered by defendant to the said Gus Poulos was the bottle of 'Coca-Cola' hereinafter referred to."

The petition then stated that on or about the 15th day of March, 1930, plaintiff purchased of the said Gus Poulos a bottle of "Coca-Cola," who opened it in the presence of the plaintiff, and the latter "believing the same to be pure, harmless, wholesome beverage, and safe to drink, thereupon drank and swallowed a portion of the contents of said bottle and became violently ill immediately thereafter; that upon examination by plaintiff of the contents of said bottle, it was found to contain a dead, putrid and decomposed mouse, and as a direct and proximate result of drinking said 'Coca-Cola,' plaintiff became violently nauseated, vomited and was seized with cramps, pain and misery in and about his stomach and abdomen;" that he received a severe and violent shock to his entire nervous system; that the lining and membrane of his stomach were caused to become inflated and sore, his system was poisoned by the beverage and it finally became necessary for plaintiff to be taken to a hospital where the poisonous contents were removed from his stomach; he has suffered great physical pain and anguish, his stomach is, and will continue to be, in a weakened condition; it is difficult to retain food; and he cannot partake of nourishment as formerly, he becomes frequently ill and nauseated, and by reason of said injuries and injurious consequences, he will be required to further obligate himself for medicines and medical attention, and that he has lost, and will lose, time from his work, etc.

The petition further alleged that--

"Defendant so manufactured, bottled and sold the said bottle of 'Coca Cola' in question at its plant in the city of Kansas City, and at all times had complete and exclusive control of said bottle and its contents until the defendant sold and delivered the same to Poulos, the retailer above named, and defendant by selling said beverage knew and intended that it should be consumed by the public, and thereby warranted and represented said beverage as being a pure, harmless, wholesome, safe drink for all persons who might purchase the same, and defendant knew that persons so purchasing the same would rely upon the warranty and representations as aforesaid. Wherefore judgment was prayed for $ 5000 and costs."

The answer was a general denial.

The evidence is that defendant was a corporation engaged in the manufacture and sale, in Kansas City, of Coca-Cola as alleged; that the Coca-Cola was sold and delivered by the defendant in bottles sealed and capped; that defendant represented to the public that the drink was pure, wholesome and fit for human consumption as it came from the bottle; that on the date alleged plaintiff purchased, from the retailer aforesaid, one of these bottles of Coca-Cola intending to consume the contents on the premises; that the retailer provided a bottle of the beverage from the icebox, uncapped it and handed it to plaintiff; that the cap on the bottle had not been tampered with by anybody and when it was uncapped by the said retailer and proprietor of the soft-drink establishment, it was in the condition that it was when received by him from the defendant; that plaintiff took two or three swallows from the bottle; that he then "smelled some terrible smell," and he began to vomit, and was deathly sick. He was taken to the hospital and suffered the pain and injuries which he claimed to have suffered by reason of the continuous vomiting he underwent.

After plaintiff had drunk from the bottle with such resulting sickness, the bottle was examined by one of the witnesses and it was discovered that it contained "a disintegrated, fuzzy mouse. . . . Some of the fuzz was floating off in the water giving it a kind of cloudy appearance."

At the close of plaintiff's evidence, defendant offered a demurrer which was overruled. Defendant did not stand on its demurrer, but introduced evidence in its behalf. In it, defendant admitted it bottled and sold Coca-Cola in Kansas City, getting the syrup therefor from Chicago in carload lots in barrels of fifty gallons each. The syrup is pumped into defendant's syrup room. Nothing at all is mixed with the syrup to make the drink Coca-Cola. One ounce of syrup is used to one bottle with five ounces of cold carbonated water, that is, water treated with carbonic gas which gives it the effervescence of bubbling gas. It was admitted that bottles were used over again after they have been once used. There was evidence in detail as to how the bottles are sorted and picked; that those chipped, broken or not in usable condition, are taken out, and those that remain go to the bottle-washing machine; all dirty bottles are picked out and handwashed. In describing this process, the witness said, "We pick out everything that is in any of those bottles." He further said, "Well, roughly speaking, I would say a bottle washer is thirty feet long, four and a half feet wide and eight feet high." The purpose of defendant's evidence apparently was to show the care with which bottles were treated and inspected so that a mouse would not get into a bottle or into the drink unobserved. It was admitted, however, that in spite of the care taken, things did get into the bottles and things had been found in a bottle after it had been filled and capped. (Manifestly, in the instance involved herein, a mouse did get into this bottle before it was capped.)

At the close of all the evidence, defendant again demurred, but it was overruled.

Appellant contends that its demurrer, at least the last one, should have been sustained, and that plaintiff's instruction No. 1 (which was given as modified by the court), should have been refused, and that defendant's motion for new trial should have been sustained on the first ground mentioned therein, because "it is shown by the petition and by said instructions that the action is one brought by a third person against the manufacturer on an alleged warranty when there existed no privity of contract or relationship between the parties and no right of action as pleaded by the plaintiff." In other words, the defendant contends that this is a suit on an implied warranty, and that a suit of this character cannot be maintained by a remote vendee against the manufacturer of the article.

Instruction No. 1, as modified by the court, states the ground on which plaintiff's case was submitted, and is, in substance, as follows: --

If the jury believed from the evidence that defendant was engaged in the general business of manufacturing, bottling, selling and distributing to the retail trade to be resold to the public a bottled beverage known as Coca-Cola, and that among other customers to whom defendant sold Coca-Cola for dispensing to the public, was one Gus Poulos, and that said beverage was delivered to said Poulos bottled and sealed by defendant and represented and warranted by it as a wholesome and refreshing beverage, and if the jury believe that plaintiff purchased a bottle of Coca-Cola from Poulos in the same condition as it was when bottled and delivered by defendant to him and that Poulos opened the same in plaintiff's presence, and that plaintiff reasonably assumed said bottle of Coca-Cola was a pure, harmless and wholesome beverage and safe to drink, and that he did drink a portion of its contents "and became violently ill therefrom immediately thereafter, if so because said bottle of Coca-Cola contained a dead, putrid and decomposed mouse, if so, and that defendant by manufacturing, bottling, sealing and selling said bottle of Coca-Cola with the dead, putrid and decomposed mouse therein to said Poulos, if you so find from the evidence, knew and intended that the said bottle of...