Meridian Coca Cola Bottling Co. v. Illges

• Decision Date: 06 November 1939
• Docket Number: 33856
• Citation: 191 So. 817,187 Miss. 27
• Court: Mississippi Supreme Court
• Parties: MERIDIAN COCA COLA BOTTLING CO. v. ILLGES

191 So. 817

187 Miss. 27

MERIDIAN COCA COLA BOTTLING CO. v. ILLGES

No. 33856

Supreme Court of Mississippi, Division A

November 6, 1939

APPEAL from the circuit court of Lauderdale county HON. A. G. BUSBY Judge.

Action by C. R. Illges against the Meridian Coca Cola Bottling Company to recover damages for injury. Judgment for plaintiff, and defendant appeals.

Affirmed on condition of remittitur.

Affirmed with remittitur.

Jacobson & Snow, of Meridian, for appellee.

The facts of this case as shown by the record are insufficient to raise the probability that the coca cola complained of was contaminated when it left the possession and control of appellant.

Cudahy Packing Co. v. Baskin, 155 So. 217, 170 Miss. 834; Cudahy Packing Co. v. McPhail, 155 So. 163, 170 Miss. 508; Cudahy Packing Co. v. Lyons, 111 So. 305 145 Miss. 876; Jackson Coca-Cola Bottling Co. v Chapman, 64 So. 791, 106 Miss. 864; Coca-Cola Bottling Works v. Simpson, 130 So. 479, 158 Miss. 390; Rainwater v. Hattiesburg Coca Cola. Bottling Co., 131 Miss. 315, 95 So. 444; Chenault v. Hattiesburg Coca Cola Bottling Co., 118 So. 177, 151 Miss. 366; Blount v. Houston Coca Cola Co., 185 So. 241; Delta Nehi Bottling Co. v. Lucas, 185 So. 561; Biedenharn Candy Co. v. Moore, 186 So. 629, 184 Miss. 721; Freeman v. La. Coca Cola Bottling Co., 179 So. 621; Russo v. La. Coca Cola Bottling Co., 161 So. 909; Teche Lines v. Bounds, 179 So. 747; Y. & M. V. R. R. v. Scaggs, 179 So. 274; Y. & M. V. R. R. v. Lamensdorf, 178 So. 80, 180 Miss. 426; Graves v. Hamilton, 184 So. 56; Thomas v. Williamson, 187 So. 220; Harris v. Pounds, 187 So. 891; Kramer Service v. Wilkins, 186 So. 621; Mutual Benefit Health & Accident Assn. v. Johnson, 186 So. 297.

There was no proof of probative value establishing the coca cola complained of was manufactured and bottled by appellant.

Jackson Coca Cola Bottling Co. v. Grubbs, 108 So. 732, 143 Miss. 590; Neely v. Jackson Coca Cola Bottling Co., 184 So. 467.

Motion to view premises and bottling machinery was well taken and should have been sustained. The court erred in not sustaining said motion.

Great Atlantic & Pacific Tea Co. v. Davis, 171 So. 550, 177 Miss. 562; Mississippi Power Co. v. McCrary, 176 So. 165, 179 Miss. 427; Kroger Grocery Co. v. Lewelling, 145 So. 726, 165 Miss. 71.

Damages awarded were excessive and new trial should have been granted on motion of appellant.

Delta Nehi Bottling Co. v. Lucas, 185 So. 561.

J. V. Gipson, Fred Ross, and M. V. B. Miller, all of Meridian, for appellee.

In the case of Lowe v. Mobile & O. R. Co., 116 So. 601, 149 Miss. 889, a case in which a peremptory instruction had been given in favor of the railroad company and against an injured person suing it, this court, in reversing the case, said.

"In a case of this kind, the rule is to assume as true the testimony of the party against whom the peremptory instruction is given, and to draw all favorable inferences for such party which might reasonably be drawn by a jury. Applying this rule to the facts before us, we think it was a case for the jury to decide, and it was error to give the peremptory instruction for the defendant."

Columbian Mut. Life Ins. Co. v. Gunn, 163 So. 455, 173 Miss. 897.

A reading of the cases cited by counsel clearly shows that there is no merit in counsel's contention that the case at bar was not one for the jury's decision.

It was shown without dispute in the case at bar that before the appellee ever saw the fly or the dregs in the bottom of the bottle he became sick and nauseated from drinking part of the contents of the bottle and went to the front of the store and began vomiting in the street, and after he came back in the contents of the bottle were examined and the dregs and fly were found.

Jackson Coca Cola Bottling Co. v. Chapman, 64 So. 791, 106 Miss. 864; Rainwater v. Hattiesburg Coca Cola Bottling Co., 95 So. 444, 131 Miss. 315; Bufkin v. Grisham, 128 So. 563, 157 Miss. 746; Blount v. Houston Coca Cola Bottling Co., 185 So. 242.

In the case of S. H. Kress & Co. v. Sharp, 126 So. 650, 156 Miss. 68, our court announced the rule as to the effect of a view by a jury. In the Kress case a point was raised on appeal that the verdict was against the weight of evidence. The court held in effect that from oral testimony it was clear that the verdict was against the weight of evidence but as the jury had viewed the scene and probably saw things thereon not shown in the record, that the court could not hold that the verdict was against the weight of the evidence. Until the decision in the Kress case, supra, attorneys made motions for view by juries indiscriminately. The Kress case stopped such practice. Objections were raised as not theretofore because vital rights of clients were affected. The Bar was confused. The court had to clarify the matter which it did in opinions beginning with National Box Co. v. Bradley, 157 So. 91, 171 Miss. 15, 95 A.L.R. 1500.

The point on appeal is not whether the court would have been in error if a jury view had been allowed, but whether the court is in error in disallowing it.

Great Atlantic & Pacific Tea Co. v. Davis, 171 So. 551, 552, 177 Miss. 562.

When the motion was made the court was in a position to know whether the court and jury could clearly understand the method of manufacture without the necessity of viewing the plant. This was not a matter of an opinion. The court knew because the evidence as to this had been heard.

64 C. J. 89.

In the case of Coca Cola Bottling Works v. Simpson, 130 So. 479, a verdict for $ 2500 was upheld, and a verdict for $ 2500 was upheld in Coca Cola Bottling Co. v. Lyons, 111 So. 305, 145 Miss. 876.

The smallest verdict returned by a jury in a coca cola case that has been appealed was for $ 500. Perhaps this is the reason counsel undertook to cite no authorities in support of their contention that the verdict in the case at bar is excessive.

J. C. Penney Co. v. Evans, 160 So. 781; Bufkin v. Grisham, 128 So. 565; Biedenharn Candy Co. v. Moore, 186 So. 630; Delta Nehi Bottling Co. v. Lucas, 185 So. 562.

Argued orally by E. L. Snow, for appellant, and by M. V. B. Miller, for appellee.

OPINION

Anderson, J.

Appellant bottled and put on the market a bottle of coca cola that had a fly in it, according to the evidence for appellee. Appellee bought the bottle from a retail merchant in Meridian, opened it, and drank part of the contents without knowing the fly was in it. He became nauseated and vomited. He brought this action against appellant to recover damages for the injury and on trial recovered...