Patargias v. Coca-Cola Bottling Co. of Chicago

• Decision Date: 26 June 1947
• Docket Number: Gen. No. 43991.
• Citation: 74 N.E.2d 162,332 Ill.App. 117
• Parties: PATARGIAS v. COCA-COLA BOTTLING CO. OF CHICAGO, Inc.
• Court: United States Appellate Court of Illinois

332 Ill.App. 117

74 N.E.2d 162

PATARGIAS

v.COCA-COLA BOTTLING CO. OF CHICAGO, Inc.

Gen. No. 43991.

Appellate Court of Illinois, First District, Second Division.

June 26, 1947.

Appeal from Circuit Court, Cook County; George W. Bristow, Judge.

Action by Annette Patargias against the Coca Cola Bottling Company of Chicago, Inc., a Louisiana corporation, to recover damages for injuries sutained when plaintiff drank a beverage from a bottle which contained a dead mouse. From a judgment for plaintiff, defendant appeals.

Affirmed.Robert D. Thompson, of Chicago (Richard E. Keogh, of Chicago, of counsel), for appellant.

Robert Irmiger, of Chicago (Robert E. Cusack and Thomas J. Wynn, both of Chicago, of counsel), for appellee.

SULLIVAN, Justice.

This action was brought by plaintiff, Annette Patargias, to recover damages from the defendant, Coca-Cola Bottling Company of Chicago, for an illness alleged to have been suffered by her as the result of drinking Coca-Cola which was manufactured and bottled by the defendant and purchased by her at a confectionery store. The case was tried before the court and a jury and a verdict was returned finding the defendant guilty and assessing plaintiff's damages at $1,000. Judgment was entered on the verdict. Defendant appeals. No question is raised on the pleadings and it is not claimed that the damages awarded plaintiff are excessive.

There is no substantial dispute as to the facts in this case. Defendant sold and delivered bottled Coca-Cola by the case to the Spa Sweet Shop at the corner of 108th street and Michigan avenue, Chicago, Illinois. When delivered, the case of Coca-Cola were placed in the rear of the store. Behind the soda fountain counter in the front portion of the store there was a cabinet in which bottles of Coca-Cola were cooled preparatory to their sale to customers. Whenever necessary, the attendants at the soda fountain would take bottles of Coca-Cola from the cases in the rear of the store to replenish the supply in the cooler. On the night of July 24, 1943, plaintiff and her sister went into the Spa Sweet Shop, sat at the counter and each ordered a bottle of Coca-Cola. The waitress took two bottles of Coca-Cola from the cooler, removed the caps therefrom with a bottle opener and placed one bottle in front of plaintiff and one in front of her sister. Plaintiff placed a straw in each bottle and without looking particularly at the contents of her bottle she proceeded to drink same through the straw. According to plaintiff, the following then occurred: ‘When I got half was down, I remarked to my sister, ‘It had an awful taste to it.’ She said hers was all right. I kept on drinking, and when I came to the bottom of the bottle, the straw hit something. I picked up the bottle and looked at it, and there was a mouse in it. * * * I let out a scream, and the owner came up and told me to keep quiet, not to attract too much attention on account he had a few customers in the store * * *. I got nauseated, and I went on out and threw up.' Plaintiff and her sister then went to the home of their mother who lived in the immediate vicinity. Dr. Joseph A. Pape was called and he arrived shortly thereafter. Plaintiff continued to be nauseated and have violent spells of vomiting all that night and the following day. The doctor ordered her to remain in bed for the first few days. Her condition then improved to the extent that she was able to be up and around the house part of the time for the next two weeks. However, during said two weeks and for a considerable period thereafter she was nauseated and vomited at frequent intervals. Dr. Pape treated her about ten times. Inasmuch as the defendant does not claim that the damages awarded plaintiff are excessive, it is unnecessary to set forth the facts as to her illness and damages in any greater detail.

Defendant presented in evidence a number of photographs and a diagram which showed the machines used by it and how same were operated in cleaning returned bottles and filling them with its product after they were cleaned. The superintendent of defendant's plant testified at length as to the method of washing, cleaning and filling the bottles and as to the manner in which the bottles were inspected by defendant's employees after they were cleaned in the washing machine and before they were filled. Briefly summarized, defendant's evidence disclosed that the machines and equipment used by it for washing, filling and capping the Coca-Cola bottles were installed in 1939; that the entire process is automatic; that when the used, dirty bottles are returned to the plant from the retailers, many of them contain foreign substances; that no attempt is made to remove such foreign substances from the bottles before they enter the washing machine; that the dirty bottles are first placed on a conveyor which carries them to the back of the washer, where employees remove them from such conveyor to the ‘automatic feed’ on the washer; that the bottles proceed, each on a separate carrier, through the washer, which is composed of several compartments, the first four of which contain solutions of warm or hot water and caustic soda at various temperatures; that the fifth compartment contains only fresh water; that hydraulic pressure and air pressure are applied to the inside of each bottle and the bottles are sterilized; that when the bottles are finally discharged from the washer they remain stationery, while one of defendant's employees inspects them at the rate of 264 bottles a minute for breaks or cracks and to see if they contain any foreign substance; that they are then carried on a conveyor to be filled but, before entering the filler and while they are moving, they are inspected by another employee at the same rate of 264 bottles a minute; that the inspectors are off 15 minutes after each 30 minutes they work, because they have ‘a pretty tedious job’; and that if there is a foreign substance in one of the bottles after it leaves the washer and defendant's inspectors fail to detect same, that substance would be bottled by the filling machine along with the Coca-Cola.

Plaintiff's complaint predicated her right to recover on two grounds: (1) that the defendant was negligent in bottling the mouse along with the Coca-Cola in the bottle in question, which was delivered to the Spa Sweet Shop and purchased by her; and (2) that the defendant breached its implied warranty that the Coca-Cola purchased by her was fit for human consumption. Defendant's answer denied that it was liable on either of the grounds asserted in plaintiff's complaint.

Defendant first contends that ‘there is no testimony of any kind connecting the injury claimed with the happening of the accident in question.’ It is argued in support of this contention that there was no medical testimony which tended to show that plaintiff's illness was proximately caused by the contents of the bottle of Coca-Cola. It is true that when Dr. Pape, plaintiff's attending physician, testified as to her condition on the night of July 24, 1943 and subsequent thereto, he was not asked by her counsel ‘hypothetically or otherwise, whether or not the drinking of the Coca-Cola might or could have caused the condition which he found.’ It is also true that defendant's attorney elicited from Dr. Pape on cross-examination the information that he had treated plaintiff occasionally over a period of about two months prior to July 24, 1943 for a mastitis or inflamation of the breast and torticollis or wryneck and that as a result of a vaginal examination he thought that she might have an ovarion cyst. The ailments for which plaintiff was treated by Dr. Pape prior to July 24, 1943 may be disregarded, since there is no evidence in the record which tends to show that they had any connection with the nausea, vomiting and nervousness from which she suffered immediately after she drank the Coca-Cola on the night in question and for a considerable period thereafter.

While ordinarily it is necessary to resort to medical testimony to prove a causal connection between the occurrence complained of and the alleged injury or illness, such is not the rule where, as here, the causal connection is clearly apparent from the illness itself and the circumstances attending it-the dead mouse in the bottle of Coca-Cola and the consumption by plaintiff of the major portion of the contents of such bottle. It was unnecessary for the jury to speculate or conjecture as to the cause of plaintiff's illness. The facts and circumstances in evidence showed that her illness was directly attributable to the contaminated Coca-Cola which she consumed. In Duval v. Coca-Cola Bottling Co., 329 Ill.App. 290, 68 N.E.2d 479, the plaintiff, an airplane pilot, also drank Coca-Cola from a bottle containing a dead mouse. There the court said, 329 Ill.App. at p. 295, 68 N.E.2d 481, ‘Defendant contends that there was no testimony which tended to show that plaintiff's sickness was proximately caused by the contents of the bottle of Coca-Cola. It points to the absence of medical testimony and to the likelihood that plaintiff's eating in restaurants and the flight may well have been responsible for his sickness. We think plaintiff's experience was sufficient basis itself for a finding by the jury that the substance which he drank caused his illness.’

Defendant next contends that the verdict was against the manifest weight of the evidence on the question of its negligence and plaintiff's freedom from contributory negligence. It asserts that plaintiff's own evidence clearly shows that she was guilty of contributory negligence. The evidence referred to is plaintiff's testimony that ‘when I got half way down, I remarked to my sister, ‘It had an awful taste to it’ * * *. She said hers was all right * * * I kept on drinking and when I came to the bottom of the bottle, the straw hit something * * * I picked up the bottle and looked at it, and there was a mouse in...