Martin v. Waycross Coca-cola Bottling Co

• Decision Date: 01 June 1916
• Docket Number: (Nos. 7018, 7036.)
• Citation: 89 S.E. 495,18 Ga.App. 226
• Parties: MARTIN . v. WAYCROSS COCA-COLA BOTTLING CO. WAYCROSS COCA-COLA BOTTLING CO. v. MARTIN.
• Court: Georgia Court of Appeals

89 S.E. 495

(18 Ga.App. 226)

MARTIN .

v.WAYCROSS COCA-COLA BOTTLING CO.

WAYCROSS COCA-COLA BOTTLING CO.

v.MARTIN.

(Nos. 7018, 7036.)

Court of Appeals of Georgia.

June 1, 1916.

(Syllabus by the Court.)

Error from City Court of Waycross; John C. McDonald, Judge.

Action by Loyle Martin against the Way-cross Coca-Cola Bottling Company. Demurrer to the petition being overruled, and plaintiff being nonsuited, plaintiff brings error, and defendant assigns cross-errors. Reversed on main bill of exceptions, and affirmed on cross-hill.

David J. Lewis, Allen B. Spence, and E. R. Smith, all of Waycross, for plaintiff in error.

Crawley, Redding & Crawley, of Waycross, for defendant in error.

RUSSELL, C. J. [1, 2] So far as my investigation has extended, there is but one reported case in which the facts are nearly identical with those of the present case. That is the Mississippi case of Jackson Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 South. 791, where the plaintiff purchased from a grocer, for the purpose of refreshing himself, a bottle of Coca-Cola which the defendant, a bottling company, had bottled and sold for public consumption as a harmless and refreshing beverage, and in which, after having swallowed a part of the contents, he discovered a decomposed mouse. It made him sick, and the court held that he was entitled to recover for the sickness caused by the "wee sleekit, cow'rin', tim'rous beastie" drowned in the bottle. The decision of the Supreme Court of Mississippi was based on a decision of the Supreme Court of our own state, in which the law was stated by Judge Candler as follows:

"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 which, if taken into the human stomach, will be injurious. * * * The duty not negligently to injure is due by the manufacturer * * * not merely to the dealer, to whom he sells his product, but to the general public, for whom his wares are intended." Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152, 1 L. R. A. (N. S.) 1178, 110 Am. St. Rep. 157.

In the present case the plaintiff was nonsuite'd on the ground that the evidence did not authorize a recovery of damages againstthe defendant. This we think was error. In the motion to nonsuit, and in the argument in this court, counsel for the defendant contended that the plaintiff's evidence showed that she suffered nothing but mental pain and anguish, and therefore no damages were recoverable. While, under the rule announced in the Georgia case of Chapman v. Western Union Telegraph Co., 88 Ga. 763, 15 S. E. 901, 17 L. E. A. 430, 30 Am. St. Rep. 183, one could not recover for mental anguish due merely to extreme delicacy of taste, or to wounded feeling caused by the consciousness of having swallowed a liquid in which a dead mouse was in process of dissolution, or for nausea produced entirely by that mental aversion which the Aryan race instinctively entertains to ratty nourishment, there is evidence from which the jury could have inferred that in this instance the liquid, which was a blend of Coca-Cola and putrid mouse juice, of itself caused the sickness from which the plaintiff testified she suffered, and that she would have been made sick by it, even if she had not seen that there was a decaying mouse in the bottle. She testified that she took a large swallow before she saw the mouse; and it is not, as a matter of law, to be concluded that the nausea from which she suffered was due to the mental shock caused by seeing a dead mouse in the liquid ...