Perry v. Kelford Coca-Cola Bottling Co.

• Decision Date: 17 October 1928
• Docket Number: 88.
• Citation: 145 S.E. 14,196 N.C. 175
• Parties: PERRY v. KELFORD COCA-COLA BOTTLING CO.
• Court: North Carolina Supreme Court

145 S.E. 14

196 N.C. 175

PERRY v. KELFORD COCA-COLA BOTTLING CO.

No. 88.

Supreme Court of North Carolina

October 17, 1928

Appeal from Superior Court, Hertford County; Townsend, Special Judge.

Action by R. W. Perry against the Kelford Coca-Cola Bottling Company. Verdict for defendant was set aside, and from an order awarding a new trial, defendant appeals. Affirmed.

Manufacturer of beverage is liable to consumer for injury, occasioned by harmful substance in beverage, only if negligent.

In action against manufacturer for injury from glass in Coca-Cola bottle, evidence that foreign substances were found in other bottles defendant bottled about same time held competent.

Plaintiff offered evidence tending to show that in January, 1927, he bought a bottle of Coca-Cola from Jenkins & Son. Plaintiff testified as follows:

"When Jenkins handed me the bottle, I began to drink it down and felt something kind of cutting. I kept chewing, but it didn't crush. I though it was ice. I drank several fine shivers, and there was a piece so large I tried to get it down. I had so much in my mouth that I spit it out. I told Jenkins that there was glass in there. We got down on our knees and looked. He said it was glass, and he said the bottle was not broken. I examined it. There is the same in the bottle as it was then, except what I drank."

The evidence further tended to show that there was "a good deal" of glass in the bottle "and it looked like enough to kill anybody." The bottle was purchased by the seller from the defendant and had been in a crate in the seller's store for two or three days. The seller testified that when he took the bottle from the crate and opened it that he inspected it to see if it was broken around the top, and, finding no defect, handed the bottle to the plaintiff. The seller further testified that the bottle had been in his store right where "he had put it." The seller also testified without objection:

"We found a stick in one bottle bought from this company. We examine every bottle to see if they are broken."

Witness was asked:

"Have you ever seen any other bottles bought by you of the Kelford Coca-Cola Bottling Company that had any foreign substance in it?"

The defendant objected, and the objection was sustained. Thereupon the plaintiff tendered other witnesses who would have testified that they each had found foreign substances in bottled Coca-Cola put up by defendant company some time "about the time" plaintiff claimed to have been injured. This testimony was excluded by the court.

Five issues were submitted to the jury, the first being, "Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint?" The jury answered this issue "No," and did not answer any other issues.

The defendant tendered judgment upon the verdict. The trial judge refused to sign the judgment, and as a matter of law, and not as a matter of discretion, set aside the verdict because he was of the opinion that he had committed error in declining to admit evidence tendered by the plaintiff tending to show foreign substances found in other bottles sold by the defendant "at about the time" the plaintiff was injured. From the order of the trial judge awarding a new trial, the defendant appealed.

Winston, Matthews & Kenney, of Windsor, for appellant.

W. W. Rogers, of Ahoskie, and Stanley Winborne, of Murfreesboro, for appellee.

BROGDEN J.

The question of law is this: Upon the trial of an action for damages for personal injury caused by shivered glass in a bottle of Coca-Cola, is it competent upon the question of negligence, to show that foreign substances were found in other bottles of beverage bottled and sold by the defendant "at about the same time" plaintiff was injured?

The rule of law governing the liability of the manufacturer of foods and beverages to a consumer, for injury occasioned by deleterious and harmful substance contained in such beverage, is clearly stated in Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545, 179 S.W. 155, L. R. A. 1916B, 877, Ann. Cas. 1916B, 572. The Supreme Court of Tennessee in that case said:

"From a careful consideration of the subject, and after mature thought, we are of opinion as follows: (1) That one who prepares and puts on the market, in bottles or sealed packages, foods, drugs, beverages, medicines, or articles inherently dangerous owes a high duty to the public, in the care and preparation of such commodities, and that a liability will exist regardless of privity of contract to any one injured for a failure to properly safeguard and perform that duty. (2) This liability is based on an omission of duty or an act of negligence, and the way should be left open for the innocent to escape. However exacting the duty or

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