Newton Coca-Cola Bottling Co. v. Shaw

• Decision Date: 01 June 1959
• Docket Number: COCA-COLA,No. 41196,41196
• Citation: 112 So.2d 374,236 Miss. 890
• Parties: NEWTONBOTTLING COMPANY v. Ernest Keith SHAW, A Minor, By Mrs. Sarah Margaret Shaw, Mother and Next Friend.
• Court: Mississippi Supreme Court

Page 374

112 So.2d 374

236 Miss. 890

NEWTON COCA-COLA BOTTLING COMPANY v. Ernest Keith SHAW, A Minor, By Mrs. Sarah Margaret Shaw Mother and Next Friend.

No. 41196.

Supreme Court of Mississippi.

June 1, 1959.

O. B. Triplett, Jr., Forest, for appellant.

Wm. C. Thompson, Forest, for appellee.

ETHRIDGE, Justice.

The issue is whether there was any substantial evidence to support the jury's $500 verdict in favor of appellee, Ernest Keith Shaw, a minor, by his next friend, in this suit upon the implied warranty of a bottler of a beverage that the beverage bottled and distributed by it is wholesome and safe for human consumption. After careful consideration of the record, we have concluded that there is no substantial, believable evidence to support a finding that (1) the extraneous matter was in the bottle when it left the factory and was offered to the public, and when some of it was drunk by appellee, and (2) the consumer received injury from drinking the beverage with any extraneous matter in it. See Coca-Cola Bottling Co. v. Savage, 1956, 228 Miss. 612, 89 So.2d 634. The evidence does not warrant any more than speculation and conjecture on these issues.

The declaration charged that on March 7, 1958 the plaintiff, a four year old boy, drank a Coca-Cola bottled by defendant which contained kerosene and a brownish substance having the appearance of tobacco. Appellant bottled and distributed the particular Coca-Cola in question. Around the middle of the afternoon plaintiff went to the refrigerator and removed a Coca-Cola, and a friend punched a hole in the top with a knife, for the child to drink. The crown or cap of the bottle was never taken off of it. No witness testified that to his knowledge there was kerosene in the bottle when plaintiff drank it, although some of the witnesses said that the bottle smelled like kerosene. No analysis was made of the inside of the bottle to determine if kerosene or any harmful substance was in it. Dr. J. W. Austin, who treated appellee, did not examine the contents, but, as did other witnesses for plaintiff, smelled only the exterior of the bottle. Plaintiff's own witnesses admitted that it was impossible to tell by smelling the bottle whether the kerosene odor came from the inside or outside. The testimony for appellant went into detail as to the process for cleaning and filling the bottles at its plant. Although it would be possible for a solid substance to get in one of the containers, appellant's evidence as to the manufacturing process indicates that it is most unlikely for a liquid such as kerosene to be bottled in a Coca-Cola at the plant. There was no kerosene around appellant's plant.

The question is whether the jury had sufficient evidence before it to uphold its verdict, or conversely, whether defendant should have been given a peremptory instruction. The verdict must be supported by competent evidence of a reasonably believable nature. Yazoo & M. V. Railroad Co. v. Lamensdorf, 1937, 180 Miss. 426, 177 So. 50; Davis v. McDonald, 1938, 180 Miss. 780, 178 So. 467; Great Atlantic &...