Nemela v. Coca-Cola Bottling Co. of St. Louis

• Decision Date: 04 May 1937
• Docket Number: No. 24134.,24134.
• Citation: 104 S.W.2d 773
• Parties: NEMELA v. COCA-COLA BOTTLING CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

104 S.W.2d 773

NEMELA v. COCA-COLA BOTTLING CO. OF ST. LOUIS.

No. 24134.

St. Louis Court of Appeals. Missouri.

May 4, 1937.

Error to St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be published in State Reports."

Action by Mary Nemela against Coca-Cola Bottling Company of St. Louis. To review a judgment on a verdict for plaintiff, defendant brings original proceeding by writ of error.

Affirmed.

Lashly, Lashly & Miller, of St. Louis, for plaintiff in error.

Gerritzen & Gerritzen, of St. Louis, for defendant in error.

BENNICK, Commissioner.

This is an original proceeding by writ of error to have this court review a final judgment entered by the circuit court of the city of St. Louis in an action brought by Mary Nemela as plaintiff against the Coca-Cola Bottling Company of St. Louis as defendant.

Plaintiff and her husband operate a travern in which, along with beer and other drinks, they sell Coca-Cola, which they purchase in case lots from defendant, the local manufacturer.

About 9 o'clock in the morning of January 15, 1935, plaintiff herself purchased a case of Coca-Cola from defendant's driver, and immediately placed some of the bottles in among the coils of the refrigerator to cool. Some two hours later, while serving drinks to a group of customers, plaintiff undertook to drink one of the bottles of Coca-Cola. She uncapped the bottle, and had taken a couple of swallows of the liquid when she felt some foreign substance in her mouth, and at once became nauseated. She removed from her mouth what appeared to be the leg and wing of a bug, and upon an investigation of the remaining contents of the bottle, discovered that it contained the portions of two bugs, the bodies of which were so decomposed as to indicate that they had been in the bottle for quite some time.

A report of the occurrence was promptly made to defendant, and the following day its agent called at the tavern and took the bottle away with him, turning it in to an official of the company, upon whose desk it remained until it was subsequently removed and destroyed by the janitor, with the result that plaintiff was unable to produce it at the trial.

The petition, to which defendant answered by a general denial, was based upon the theory of a breach by defendant of an implied warranty that the Coca-Cola was pure, wholesome, and fit for human consumption.

Tried to a jury upon the issues joined, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $400. Judgment was rendered accordingly, and that judgment is now before this court for review upon the writ of error sued out at the instance of defendant.

At the outset of the case there is a controversy between the parties as to the scope which our review may take in view of the fact that the review is upon writ of error rather than by the ordinary process of appeal. As to this it suffices to say that once an appellate court obtains jurisdiction to review the proceedings of an inferior court, whether on appeal or by writ of error, the scope to be taken in its review is the same in either instance, depending upon whether the alleged errors occurring in the course of the trial or hearing have been preserved in a bill of exceptions duly allowed and filed so as to have become a part of the record. Spotts v. Spotts, 331 Mo. 917, 55 S.W.(2d) 977, 87 A.L.R. 660; State ex rel. v. Green (Mo.App.) 76 S.W.(2d) 432; Gabbert v. Evans, 184 Mo.App. 283, 295, 166 S.W. 635. In this instance the bill of exceptions has been allowed and made a part of the record, and consequently the scope which may be taken in our review of the case is no less extensive then it would have been if our appellate jurisdiction had been invoked by the taking of an appeal.

In attacking the submission of the case to the jury, defendant argues that plaintiff's only right of recovery in the case should have been limited to proof of negligence on defendant's part in the manufacture and bottling of the Coca-Cola, and should not have been allowed upon the theory of the breach of an implied warranty of the fitness of the beverage for human consumption.

We know of no dissent to the view that in a case of this character the vendee may sue his immediate vendor for the latter's breach of the implied warranty of fitness which follows an article of food or drink which is sold for immediate human consumption. Beyer v. Coca-Cola Bottling Co. (Mo.App.) 75 S.W.(2d) 642; Madouros v. Kansas City Coca-Cola Bottling Co. (Mo. App.) 90 S.W.(2d) 445, 450; Degouveia v. H. D. Lee Mercantile Co. (Mo.App.) 100 S. W.(2d) 336; Fantroy v. Schirmer (Mo. App.) 296 S.W. 235; Smith v. Carlos, 215 Mo.App. 488, 247 S.W. 468; Crocker Wholesale Grocer Co. v. Evans (Mo.App.) 272 S.W. 1017.

So far as legal theory is concerned, the action brought by the vendee against his immediate vendor is supported by privity of contract between the two, so as to make an action for damages for breach of warranty entirely appropriate under the ordinary rules of contract law. It is only when the action is brought by the ultimate consumer against the manufacturer or packer that the difficulty arises, warranty being founded on contract, and there being no privity of contract, at least in the ordinary sense of the term, between the ultimate consumer and the manufacturer who has merely put the goods upon the market for sale to the general public at retail. But even in this situation the action for breach of warranty is nevertheless allowed in the case of foodstuffs, beverages, and the like, which are put up in such a way that the condition of the contents may not be known until opened for use by the ultimate consumer, the theory being that "under modern conditions, when products of food or drink have been prepared under the exclusive supervision of the manufacturer and the consumer must take them as they are supplied, the representations constitute an implied contract, or implied warranty, to the unknown and helpless consumer that the article is good and wholesome and fit for use. If privity of contract is required, then, under the situation and circumstance of modern merchandise in such matters, privity of contract exists in the consciousness and understanding of all right-thinking persons." Madouros v. Kansas City Coca-Cola Bottling Co., supra.

In this case defendant seizes upon certain of the evidence to the effect that one of the customers whom plaintiff was serving in the tavern had not only requested that she drink with them but had offered to pay for the bottle of Coca-Cola, and it argues from this that plaintiff, in the matter of her right of action against defendant, should be held to have occupied the same position as an ultimate consumer or purchaser from a retailer. Even if this were true, she would still have her right of...