Nehi Bottling Company v. Thomas

• Decision Date: 19 December 1930
• Citation: 236 Ky. 684
• Parties: Nehi Bottling Company v. Thomas.
• Court: United States State Supreme Court — District of Kentucky

Page 684

236 Ky. 684

Nehi Bottling Company v. Thomas.

Court of Appeals of Kentucky.

Decided December 19, 1930.

1. Food. — Court should have directed verdict for defendant where evidence failed to show bottle of poisoned pop which plaintiff drank was bottled in defendant's plant.

Retailer from whom plaintiff purchased grape pop testified he got bottle off of truck which passed his place of business. There was no evidence that truck belonged to defendant, that defendant had exclusive agency in that section for grape pop of brand purchased, or any evidence whatever showing that bottle came from defendant's plant.

2. Negligence. — One knowingly marketing inherently dangerous article owes duty of care to all persons reasonably to have been foreseen as likely to use article.

3. Food. — Bottler of pop was required to exercise highest care to prevent deleterious substance coming into bottle while in its possession, but was not insurer.

4. Food. — Bottler of pop containing arsenic was liable to purchaser from middleman, if at all, on theory of tort not ex contractu.

5. Food. — Burden held on bottler of pop which contained arsenic when purchased from retailer to establish he exercised highest degree of care.

6. Food. — Res ipsa loquitur doctrine applies where manufactured article is intended for human consumption.

Appeal from Graves Circuit Court.

J.D. MOCQUOT for appellant.

AUBREY HESTER and F.B. MARTIN for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER

Reversing.

S.H. McNutt (engaged in the bottling business under the trade-name and style of Nehi Bottling Company) seeks by this appeal to reverse a judgment for $875 recovered against him by Charlie Thomas.

On January 17, 1929, Charlie Thomas and John Hamm went into a place of business kept by Charley Rucker in Mayfield, Ky., to get some pop. Thomas called for "Grape," and Rucker took from his ice box a bottle of "Nehi-grape," pulled the crown off of it and gave it to Thomas, who drank something like half of it, then set it down and remarked that it tasted bad.

He and Rucker examined the bottle, and found something in it rolled up in tin foil. Rucker put the substance back into the bottle, replaced the crown, and set the bottle in the window. Thomas went to a nearby barber's shop, where he became violently ill. Physicians were called who emptied Thomas' stomach by vomiting produced by the administration of a hypodermic and by washing. They procured the bottle of "Nehi-grape," and sent a portion of the contents of it and some of the washings from the stomach of Thomas to the state board of health of Louisville, Ky., with a request that it be examined for poison, particularly for strychnine and arsenic. This was forwarded from Louisville to the Kentucky Public Service Laboratories at Lexington, and in a few days the doctors at Mayfield were advised that no strychnine was found, but that arsenic trioxide was present in the stomach washings to some extent and present in the "Nehi-grape" in quantity. After about a week's treatment at the hospital at Mayfield, Thomas recovered sufficiently to be able to leave. He contends his kidneys and stomach were permanently injured by this poisoning, that his stomach swells, and that sometimes in the morning he can not button his pants around his waist. For this and the resulting impairment of his earning power he sued McNutt for $20,000, with the result stated. Defendant's motion for a new trial was overruled and he appeals, contending that the court erred in giving and refusing instructions.

Rucker testified he got his "Nehi-grape" off of the Nehi truck, when it passed his place. There is no evidence the truck belonged to McNutt, that McNutt had an exclusive agency for Nehi in that section, or any evidence whatever to show the bottle in question had come from McNutt's plant. McNutt admits he had a bottling plant in Mayfield then, but Rucker says he did not know McNutt, had never ordered any Nehi from him or from the plant in Mayfield. All he testifies on the subject is that he got his goods off of the Nehi truck. No one says who owned this truck, who drove it, or whose products were carried on it. Thus the evidence wholly fails to establish any connection between the bottle of poisoned beverage and McNutt's plant. Hence the court should have directed a verdict for McNutt, and upon the next trial the court will do so if the evidence is the same. The evidence shows this arsenic was a powder and was rolled up in a piece of tin foil with the ends folded over, thus making a package which Rucker says was about the size of his finger. A perfunctory inspection would have discovered it. Rucker testifies the bottle was in the same condition when he served it to Thomas that it was when he got it off the wagon, and the evidence of Rucker and other witnesses shows that it was not tampered with thereafter.

The evidence concerning the inspection of the products of McNutt's plant is that he has there a device consisting of a board in which four slots or holes are cut of such size as to receive and fit a bottle, but not large enough to allow the bottle to pass through. After these products have been bottled and crowned, then they are placed on this device four at a time, one resting on each of the four cutholes; lights behind these cutholes so light up and shine through the bottles that the inspector can see through the contents of each bottle and see if there are any foreign substances in it. Thus it is made evident that, if this package of arsenic was in this bottle when it left McNutt's plant, it would have been discovered by such an inspection, and the conclusion is inescapable that no inspection was made worthy of being called an inspection, or that some malevolent person had put the package of arsenic in this bottle after it was inspected at the plant where it was bottled. We know the crowns can be removed from these botles and replaced thereon, for Rucker testified he replaced the crown on this one after Thomas had drunk a portion of the contents.

"One who puts on the market articles inherently or intrinsically dangerous to life owes the duty of care to all those persons who ought reasonably to have been foreseen as likely to use them." Ky. Ind. Oil Co. v. Schnitzler's Adm'r, 208 Ky. 507, 271 S.W. 570, 573, 39 A.L.R. 979.

In Payton's Adm'r v. Childers' Electric Co., 228 Ky. 44, 14 S.W. (2d) 208, 209, we said this:

"The general rule is that a...