Norfolk Coca-Cola Wks. v. Krausse

• Decision Date: 22 March 1934
• Citation: 162 Va. 107
• Parties: NORFOLK COCA-COLA BOTTLING WORKS, INC. v. G. KRAUSSE AND E. L. BOWEN.
• Court: Virginia Supreme Court

Page 107

162 Va. 107

NORFOLK COCA-COLA BOTTLING WORKS, INC. v. G. KRAUSSE AND E. L. BOWEN.

Supreme Court of Virginia, Richmond.

March 22, 1934.

Present, All the Justices.

1. FOOD — Liability of Manufacturer to User. — The manufacturer of an article is not liable for injuries resulting in its use to those with whom it has no contractual relations. His liability for injuries suffered in the consumption of food preparations intended for human consumption is an exception equally well recognized.

2. FOOD — Liability of Manufacturer to User. — A manufacturer or bottler of foods or beverages is directly liable to a consumer for an injury caused by the unwholesomeness or the unfitness of such articles, although purchased from a dealer or middleman and not from the manufacturer, bottler, or packer. In some of the cases the doctrine of implied warranty has been assigned as a ground for such liability; but in others liability is based upon the ground of negligence, the applicability of the rule of implied warranty being denied.

3. FOOD — Liability of Manufacturer to User — Bottler of Coca-Cola — Negligence — Res Ipsa Loquitur — Case at Bar. — The instant case was an action against a bottler of Coca-Cola for injuries sustained by plaintiff when she swallowed glass in the Coca-Cola. There was a judgment and verdict for plaintiff. Plaintiff alleged that the "defendants negligently failed to use due and proper care, and knew or could, by the exercise of reasonable care, have known that said drink sold this plaintiff contained chipped glass." In other words, she based her claim upon negligence and it was upon that theory that the case was tried. The jury by its verdict said that the bottling company was negligent.

Held: That plaintiff could recover.

4. FOOD — Liability of Manufacturer to User — Bottler of Coca-Cola — Negligence — Res Ipsa Loquitur — Case at Bar. — The instant case was an action against a bottler of Coca-Cola for injuries sustained by plaintiff when she swallowed glass in the Coca-Cola. There was a judgment and verdict for plaintiff. Plaintiff alleged that the "defendants negligently failed to use due and proper care, and knew or could, by the exercise of reasonable care, have known that said drink sold this plaintiff contained chipped glass." In other words, she bases her claim upon negligence and it was upon that theory that the case was tried. In such circumstances some courts hold that the doctrine of res ipsa loquitur should be applied. The doctrine of res ipsa loquitur is an evidential presumption sometimes resorted to in the absence of evidence, but it is not to be applied when evidence is at hand, as it was in the instant case.

5. FOOD — Liability of Manufacturer to User — Mere Presence of a Foreign Substance. — It is sometimes said that the mere presence of a foreign substance in food will not sustain a recovery against the manufacturer of the food.

6. FOOD — Liability of Manufacturer to User — Presence of a Foreign Substance — Case at Bar. — In an action for injuries against a bottler from swallowing glass in a bottle of Coca-Cola, the presence of the glass was evidence of negligence, which unexplained supported a verdict for the plaintiff.

7. FOOD — Liability of Manufacturer to User — Prima Facie Case of Negligence. — One injured by eating food prepared wholly under the control and management of a manufacturer putting up food products for human consumption makes out a prima facie case of negligence on the part of the manufacturer by showing the fact of injury, and the burden is then on the manufacturer to establish his freedom from negligence.

8. FOOD — Liability of Manufacturer to User — Prima Facie Case of Negligence — Foreign Substance in Food. — When a manufacturer of a beverage undertook to place it on the market in sealed bottles, intending it to be purchased and taken into the human stomach, under such circumstances that neither the dealer nor the consumer had opportunity for knowledge of its contents, he likewise assumed the duty of exercising care to see that there was nothing unwholesome or injurious contained in said bottles. For a negligent breach of this duty, the manufacturer became liable to the person damaged thereby. Foreign substance in food establishes a case of prima facie negligence.

9. LEGLIGENCE — Inference. — Sometimes the presence of foreign substance in food is spoken of as an inference. An inference is more than a presumption or a substitute for evidence. It is a logical deduction from circumstances known to exist. Foreign substances in food packages not tampered with are in themselves evidence of negligence. When that is shown, a prima facie case has been made out, which, if not overborne by evidence for the defendant is sufficient to sustain a verdict for the plaintiff. Evidence of a high degree of care may be sufficient, but such evidence is in conflict with a prima facie case, and should go to the jury. Its verdict must be sustained unless "plainly wrong."

10. FOOD — Foreign Substance in Food — Instructions — Case at Bar. — In the instant case an action by a consumer against a bottling works, the court instructed the jury that if they found from the evidence that the defendant, the bottling works, manufactured or bottled and placed upon the market the bottle of beverage called Coca-Cola in question in this case, for human consumption, and that the plaintiff purchased the said bottle of beverage in due course of trade, and that as the result of the negligence of the bottling works the said bottle of Coca-Cola contained a quantity of small particles or pieces of glass, and plaintiff was thereby damaged, it was the duty of the jury to return a verdict for the plaintiff.

Held: That this instruction was not erroneous.

11. FOOD — Foreign Substance in Food — Instructions — Case at Bar. — In the instant case, an action by a consumer against a bottling works, the court instructed the jury that the defendant, the bottling works, was not an insurer or guarantor of the absolute purity of its product but was under the legal duty of exercising a high degree of care to see that its drink was fit for consumption and free from foreign substances. And if the jury believe from the evidence that the said bottling company exercised a high degree of care in the washing, sterilizing and inspection of its bottles, then they should find for the defendant.

Held: That this instruction was not erroneous.

12. FOOD — Liability of Manufacturer to User — Excessive Verdict — Case at Bar. — The instant case was an action for damages by the consumer of Coca-Cola against the bottler of the Coca-Cola. There was a verdict for plaintiff in the sum of $2,000, which the trial court, being of the opinion that the verdict was excessive, reduced to $750.

Held: That under the facts in the case the action of the trial court was fully warranted.

Error to a judgment of the Circuit Court of the city of Portsmouth, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Vandeventer, Eggleston & Black, for the plaintiff in error.

A. A. Bangel, for the defendants in error.

HOLT, J., delivered the opinion of the court.

This action, by notice of motion, was brought by Mrs. G. Krausse against the defendant, Coca-Cola Bottling Works, Inc., and E. L. Bowen, a retail grocer, to recover damages for personal injuries suffered by the plaintiff as the result of swallowing glass contained in a bottle of Coca-Cola put on the market by the defendant, Coca-Cola Bottling Works, Inc., and partially drunk by plaintiff.

The notice of motion alleges: "That heretofore to-wit on the 6th day of October, 1931, the defendants offered for sale for human consumption, in the city of Portsmouth, Virginia, a certain bottle soft drink, known as Coca-Cola; that on said date, the undersigned plaintiff purchased from said defendants said bottle soft drink; that said drink without the knowledge of the plaintiff, contained chips of glass; that it became and was the duty of the said defendants to use due and proper care in the making of said drink or the container to have the same free from such chipped glass; that said defendants negligently failed to use due and proper care, and knew, or could, by exercise of reasonable care, have known that said drink sold this plaintiff contained chipped glass and the said plaintiff, in drinking said drink, did swallow chipped glass, whereby and by reason whereof, she became sick and sore and suffered great pain and mental anguish and did also expend a large sum of money in and endeavoring to be healed and cured of said sicknesses to the damage of the undersigned for five thousand dollars ($5,000)."

No plea was entered by Bowen and the case was tried by a jury, on the plea of not guilty, filed by the company, hereafter called defendant. There was a verdict for plaintiff against the company in the sum of $2,000. The court overruled the motion of defendant to set aside the verdict, but being of opinion that the verdict was excessive, over the objection of plaintiff reduced the amount of damages to the sum of $750. A writ of error was awarded defendant by a justice of this court. Plaintiff also assigns cross-error to the action of the court in reducing the damages.

The facts are undisputed. On October 6, 1931, plaintiff purchased a bottle of Coca-Cola from E. L. Bowen, who had previously purchased the same from defendant. The bottle of Coca-Cola, along with some groceries, was delivered by an employee of Bowen to plaintiff at her home; the original cap was removed from the bottle in the presence of the employee; there was no breaking of glass in the uncapping; plaintiff, without examining it, drank from the bottle; she became strangled and began coughing; she coughed up a piece of glass which she removed from her mouth and threw away; she swallowed particles of glass which made her very sick; she consulted a...