Paul v. Hardware Mut. Ins. Co.
| Decision Date | 12 November 1971 |
| Docket Number | No. 3646,3646 |
| Citation | 254 So.2d 690 |
| Parties | Cleveland PAUL, Sr. and Elmina Paul, Plaintiffs-Appellees, v. HARDWARE MUTUAL INSURANCE COMPANY, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
James R. Nieset, of Plauche, Sanders, Smith & Hebert, Lake Charles, of counsel for defendant-appellant.
Philip J. Shaheen, Jr., Lake Charles, for plaintiffs-appellees.
Before FRUGE , CULPEPPER and DOMENGEAUX, JJ.
This is a suit in tort in which plaintiffs seek to recover damages because of alleged injuries sustained by Mrs. Elmina Paul as the result of her drinking the partial contents of a bottle of Dr. Pepper on or about April 30, 1968, which bottle allegedly contained a foreign substance. Made defendant is Hardware Mutual Insurance Company, the liability insurer of Lake Charles Dr. Pepper Bottling Company. The trial court found that the soft drink bottle contained a roach, that Mrs. Paul became ill as a result of her imbibing of the contents thereof and awarded damages to her for her pain and suffering and to Mr. Paul for medical expenses. Defendant has appealed suspensively to this court.
Appellant assigns numerous errors on the part of the trial court, the first of which being that the plaintiffs failed to prove that defendant's insured manufactured the bottled drink in question and consequently erred in awarding damages to plaintiffs.
It is the law of this state that the consumption by an individual of a bottled beverage contaminated with unwholesome matter from its original container establishes a prima facie case for the assessment of damages against the manufacturer thereof. Le Blanc v. Louisiana Coca Cola Bottling Co., Ltd., 221 La . 919, 60 So.2d 873; Reine v. Baton Rouge Coca Cola Bottling Co., La .App., 126 So.2d 635.
Obviously then, the first requirement of proof in such a case where one seeks damages from a manufacturer (or its liability insurer) is to show that the product was bottled and/or manufactured by the alleged manufacturer.
According to the testimony of Mrs. Paul, she sent her son to the C . J. Fontenot Grocery Store in her neighborhood at Lake Charles, Louisiana to purchase a bottle of 'Dr. Pepper.' The son went to the store, secured a cold bottle of Dr. Pepper from the store refrigerator, paid for it and delivered it to his mother. Mrs. Paul uncapped the bottle with a bottle opener and began to drink therefrom. When she had consumed about half of the...
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