Opelika Coca-Cola Bottling Co. v. Johnson, COCA-COLA

• Decision Date: 19 August 1970
• Docket Number: 5 Div. 12,COCA-COLA
• Citation: 241 So.2d 327,46 Ala.App. 298
• Parties: OPELIKABOTTLING COMPANY, Inc. v. Albert JOHNSON.
• Court: Alabama Court of Civil Appeals

Page 327

241 So.2d 327

46 Ala.App. 298

OPELIKA COCA-COLA BOTTLING COMPANY, Inc. v. Albert JOHNSON.

5 Div. 12.

Court of Civil Appeals of Alabama.

Aug. 19, 1970.

Rehearing Denied Sept. 9, 1970.

Brown & McMillan, Auburn, for appellant.

Russell, Raymon & Russell, Tuskegee, for appellee.

THAGARD, Presiding Judge.

This is a run of the mill bug-in-a-bottle case, except that it appeared to be a worm instead of a bug.

The testimony for the plaintiff was to the effect that the plaintiff, while a patient in a tuberculosis ward at the Tuskegee Veterans Administration Hospital, bought one of defendant's bottles of Coca-Cola from a vending machine maintained by defendant in said ward; drank a portion of the same; felt some foreign object touch his mouth; looked into the bottle and discovered a foreign object that looked like a worm in a partial state of decomposition; became violently nauseated, and suffered from attacks of nausea and abdominal pain for some two weeks.

The testimony of the plaintiff as to the existence of the worm-like object in the bottle at the time of the drinking by the plaintiff was corroborated by another inmate of the ward, who testified that he saw the plaintiff take the bottle from the vending machine and that the plaintiff was sitting by the witness watching a television program when the worm-like object was discovered.

The defendant pleaded the general issue in short by consent and the case was submitted to a jury. There was a verdict for the plaintiff for $2500.00 and judgment was rendered accordingly.

Defendant's motion for a new trial was denied by the court, after which this appeal.

There were ten assignments of error, at least three of which were waived. The thrust of the assignments argued by appellant is four-fold: (1) That the court erred in refusing to give the affirmative charge with hypothesis for the defendant; (2) That the evidence was insufficient to support the verdict and judgment; (3) The verdict and judgment were excessive; and (4) The court erred in overruling appellant's motion for a new trial. We think it necessary to discuss only (2) and (3), because if there is no merit in either of them, there is no merit in (1) and (4).

Appellant says that in a long line of cases the Supreme Court has said that proof of the presence in a bottled drink of a foreign body is itself proof of negligence, and cites as an example Coca-Cola Bottling Co. v. Crook, 222 Ala. 369, 132 So. 898; and (says appellant) 'In effect the rule means that negligence is presumed when a foreign substance or thing is found in a bottled drink.'

Some of the Alabama cases say that the presence of such deleterious foreign matter in a sealed bottled drink is evidence from which the jury may infer negligence on the part of the bottler, so as to present a jury question. Lewis et al. v. Linkett, 232 Ala. 233, 167 So. 286; Alabama Coca-Cola Bottling Co. v. Causey, 28 Ala.App. 115, 180 So. 588; Gardner et al., d/b/a Seven Up Bottling Co. v. Baker, 40 Ala.App. 374, 113 So.2d 695.

Some hold that the presence of foreign deleterious matter in food makes a prima facie case of negligence on the part of the manufacturer and makes it incumbent on the manufacturer to go forward and answer the prima facie case. See Collins Baking Co. v. Savage, 227 Ala. 408, 410, 150 So. 336.

Others hold that the presence of such foreign matter in a sealed bottle drink raises a Presumption of negligence on the part of the bottler. (Emphasis supplied.) Dr. Pepper Co. v. Brittain, 234 Ala. 548, 176 So. 286; Gardner et al., d/b/a 7-Up Bottling Co. v. Sumner, 40 Ala.App. 340, 342, 113 So.2d 523.

But, whatever the language used, all of the cases hold in effect that when a foreign unwholesome substance is found in a sealed package or bottle of food or beverage, there arises an inference, a prima facie case or presumption of the existence of negligence on the part of the manufacturer or bottler. The burden is then upon the manufacturer or bottler to go forward with evidence to rebut or overcome such presumption or prima facie case. The determination of whether such burden is sufficiently carried is for the jury.

In the case at bar there was ample testimony, if believed, that there was a foreign object resembling a partially decomposed worm or cocoon in the sealed bottle of Coca-Cola and from which the jury might infer that the bottler had been negligent in the bottling of this particular bottle of Coca-Cola.

Appellant undertook to rebut the evidence of negligence by showing the use in its bottling operations of modern machinery and methods that are calculated to make it practically impossible for foreign matter to exist in its drinks. But in Dr. Pepper Co. v. Brittain, supra, Judge Foster wrote:

'When defendant offers without dispute evidence that its processes are such that during the operation foreign matter cannot find its way into the bottled drink or other sealed package, it does not always follow that defendant is entitled to an affirmative charge even predicated upon the usual hypothesis. The situation resembles in legal effect that which exists with respect to the liability of a railroad company for causing fire to be set out from sparks from its locomotive. The jury must first find either by direct or circumstantial evidence that the fire was caused from sparks emitted by defendant's engine. There is then a presumption of law that the railroad company was negligent either in respect to the equipment or handling of the engine, and it is due to rebut that presumption. If this is done without conflict, and there are no conflicting inferences from the evidence, the jury should be charged generally for defendant on the usual hypothesis. But, when the evidence shows that an engine properly equipped and handled will not emit sparks sufficient to cause the fire in question, it follows that, if in fact the sparks did cause the fire, there is shown a circumstance which discredits evidence of proper equipment and due care in handling, making a case for the jury. * * *' (234 Ala. at page 549, 176 So. at page 287)

And in Coca-Cola Bottling Co. v. Crook, supra, the Supreme Court said:

'While defendant's testimony tended to show the bottling plant of best type and equipment, also its careful operation and inspection, the issue of negligence vel non was for the jury on the whole evidence. The affirmative charge was properly refused.' (222 Ala. at page 370, 132 So. at page 898)

And in Try-Me Beverage Co. et al. v. Harris, 217 Ala. 302, 304, 116 So. 147, 148, the court, speaking through Justice Bouldin, said:

'The full evidence as to the modern equipment of the plant and the details of operation, including inspection both before and after filling the bottle, Serve rather to emphasize than to...