Nehi Bottling Co. v. Patton

• Decision Date: 06 June 1940
• Docket Number: No. 10987.,10987.
• Parties: NEHI BOTTLING CO. v. PATTON.
• Court: Texas Court of Appeals

Page 900

142 S.W.2d 900

NEHI BOTTLING CO. v. PATTON.

No. 10987.

Court of Civil Appeals of Texas. Galveston.

June 6, 1940.

Rehearing Denied August 1, 1940.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by Gladys Patton against the Nehi Bottling Company for injuries alleged to have resulted from the drinking of a bottled beverage allegedly delivered to a retailer by the defendant and purchased by the plaintiff from the retailer. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Battaile & Burr, of Houston, for appellant.

Lewis & Ingram, of Houston, for appellee.

GRAVES, Justice.

This statement, adopted by the appellee as being correct, is taken from appellant's brief: "This suit was brought in the district court of Harris County by the plaintiff (appellee) to recover damages from the defendant for injuries alleged to have resulted from her drinking of the contents of a `Royal Crown R. C. Cola' bottle, allegedly delivered to one Phillip Ciulla, a retailer of groceries and soft drinks, by the defendant and purchased by the plaintiff from said Ciulla. The case was tried before a jury on special issues and on June 5, 1939, after overruling defendant's motions for judgment non obstante veredicto and that the jury's findings in response to the special issues be disregarded, the Court, upon motion of plaintiff, entered judgment on the verdict in favor of plaintiff and against defendant for the sum of $3,000.00, to which action defendant duly excepted. On June 14, 1939, defendant filed its original motion for new trial, and on July 1, 1939, its amended motion, which was on July 7, 1939, duly presented to the Court and by the Court overruled, to which action of the Court defendant duly excepted, and on the same day in open court gave notice of appeal to this Honorable Court of Civil Appeals."

Inveighing here against the judgment so rendered, appellant's first proposition is this: "Since the evidence raises the issue that at least part of the plaintiff's physical pain and suffering, if any, and her lost or diminished capacity to work and earn money, if any, and her doctor and medical bills, if any, were attributable to some liver trouble which existed prior to June 15, 1937, the date of plaintiff's alleged injuries, the trial court should have instructed the jury in connection with special issue No. 13 relating to damages not to consider nor allow plaintiff anything for physical pain and suffering, nor for lost or diminished capacity to work and earn money, nor for doctor and medical bills, because of so much of the stomach and digestive ailments that plaintiff had, if any, which were not an aggravation by her drinking of the contents of the bottle in question, in view of the record showing that defendant duly objected and excepted to said issue because of the absence of such instruction, and duly requested the submission of such instruction to the jury."

The trial court's special issue No. 13, so referred to in the quoted proposition, together with the jury's seriatim answers to the inquiries contained, were these:

"Special Issue No. 13. What sum of money, if any, do you find from a preponderance of the evidence, if paid now, in cash to the plaintiff, Gladys Patton, will fairly and adequately compensate her for the injuries, if any, received by her on the occasion in question, directly and proximately resulting from drinking of the contents of the bottle of Royal Crown RC Cola, in question, taking into consideration the following elements of damage, if any you find, and none other." Answer: "$3,000.00."

"A. Physical pain and suffering to the plaintiff, therefrom, if any, from the 15th of June, 1937, down to the date of this trial." Answer: "Physical suffering, $1500.00."

"B. The reasonable value of plaintiff's lost or diminished capacity to work and earn money therefrom, if any, from June 15th, 1937, down to the date of this trial." Answer: "Diminished capacity, $1000.00."

"C. The reasonable value of necessary Doctor bills and medical bills incurred by the plaintiff therefrom, if any, from June 15, 1937, down to the date of this trial." Answer: "Doctor bills, $500.00."

"You will answer this issue by stating the amount in dollars and cents, if any, separately as to the above items, if any."

The appellant's objection to such issue as given, together with its own requested special issue No. 1, for submission in connection with it, was as follows:

"Defendant objects and excepts to special issue No. 13 because the evidence raises the issue that at least part, if not all, of the plaintiff's physical pain and suffering, if any, and her lost or diminished capacity to work and earn money, if any, and her doctor and medical bills, if any, were attributable to some liver trouble which existed prior to June 15th, 1937, and the Court should instruct the jury in connection with special issue number thirteen not to consider nor allow anything for physical pain and suffering, nor for lost or diminished capacity to work and earn money, nor for doctor and medical bills, because of so much of the...