Peters v. Double Cola Bottling Co. of Columbia

• Decision Date: 11 January 1954
• Docket Number: No. 16818,16818
• Court: South Carolina Supreme Court
• Parties: PETERS v. DOUBLE COLA BOTTLING CO. OF COLUMBIA et al.

Page 710

79 S.E.2d 710

224 S.C. 437

PETERS v. DOUBLE COLA BOTTLING CO. OF COLUMBIA et al.

No. 16818.

Supreme Court of South Carolina.

Jan. 11, 1954.

Rosen, Horger & Sims, Orangeburg, for appellant.

J. D. Parler, N. H. Hamilton, St. George, for respondent.

LITTLEJOHN, Acting Associate Justice.

This action was commenced in Dorchester County by the plaintiff against the defendant Double Cola Bottling Company of Columbia, by service of summons and complaint on October 13, 1948, and by service of summons and complaint on the defendant Raymond Kizer on October 18, 1948. The plaintiff is a resident of Dorchester County; the defendant Raymond Kizer is also a resident of Dorchester County, is the nephew of the plaintiff, and operates a store wherein Double Cola, bottled by the Double Cola Bottling Company of Columbia, is sold. Double Cola Bottling Company of Columbia is a corporation and has its principal place of business in Richland County.

The complaint alleges that on the 13th day of December, 1947, the plaintiff purchased twelve bottles of Double Cola from the defendant Kizer at his place of business in Dorchester County, and that such product was manufactured and bottled by the defendant Double Cola Bottling Company of Columbia. It alleges that the plaintiff consumed a portion of the contents of one of the bottles which had not been previously tampered with or opened, and thereupon discovered a number of small worms and insects, disease carrying insects, small filthy foreign substances and other filthy and diseased ingredients therein. The complaint alleges that she became ill and violently sick, humiliated and embarrassed from the consumption of the contents of the bottle. Plaintiff prays judgment for three thousand dollars from both defendants.

The complaint concludes with four paragraphs, as follows:

'9. That as this plaintiff is informed and believes, she swallowed a number of these diseased insects and foreign ingredients. She coughed and spit up a number of the said diseased insects and foreign filthy substance that had passed into her mouth at the time she had discovered their presence in the bottle. That she immediately thereafter became ill and violently sick, humiliated and embarrassed from drinking said 'Double Cola' beverage and diseased insects and filthy foreign ingredients manufactured, bottled, sold and delivered by these defendants.

'10. That the said bottle of 'Double Cola' beverage thus manufactured, served and delivered to this plaintiff, Mrs. Mae Peters, by the defendants herein, was not wholesome or fit for human consumption, but on the contrary was poisonous, contaminated with worms and insects and foreign filthy diseased matters, covered and saturated with hundreds and thousands of deadly disease germs, and being highly injurious to anyone drinking same, which fact was known to the defendants, or should have been known to them in the conduct of their business in the manufacturing, bottling, selling and delivering of said beverage.

'11. That the defendants, their agents, servants and employees, were careless and negligent in the manufacturing of said drink in the following particulars, to wit:

'(a) In not properly cleaning their bottles.

'(b) In not inspecting said bottles before and after they were filled with beverage.

'(c) In not keeping their place of business in a sanitary and clean condition.

'(d) In allowing the aforementioned 'Double Cola' beverage to be placed in bottles which had not been properly cleaned and which were contaminated with diseased insects and foreign matter.

'(e) In the bottling, selling and delivering of said beverage.

'(f) In failing to use due care in the manufacturing, bottling, selling and delivering of said beverage.

'12. That by reason of the negligent, careless, wilful, wanton, malicious and intentional acts and deeds of the defendants herein, there agents and servants, as aforesaid, the plaintiff was made violently and deadly sick, suffered great pain, physical suffering and mental anguish and impairment of health and embarrassment. She has lost her appetite for 'Double Cola', which drink or product she was extremely fond of before this tragedy occurred. She was forced to call a medical doctor for treatment and expend sums of money for medical attention and medicinal supplies. She has suffered, is suffering and will continue to suffer, mental anguish and nausea from the effects of having drank a portion of this contaminated and diseased 'Double Cola', with the result that this plaintiff has been damaged and injuried in the sum of Three Thousand ($3,000.00) Dollars.'

The answer of the Double Cola Bottling Company sets up a general denial and alleges that the most modern methods of bottling soft drinks are used, and alleges that if the plaintiff was damaged by any deterioration or infestation as alleged in the complaint, it was brought about after it came into her possession and not before it went beyond the control of this defendant.

The defendant Kizer had not employed an attorney as of four days after service. He is not appealing. The record is silent otherwise as to him.

In the Circuit Court the defendant Double Cola Bottling Company moved for a change of venue under Section 10-303 of the 1952 Code, from Dorchester County to Richland County, on several grounds. The motion was denied and this appeal results, raising in this Court only one basic issue, to wit: Was the defendant Raymond Kizer made a party to this suit merely for the purpose of placing venue in Dorchester County, or is he a bona fide and material defendant against whom a cause of action has been stated in the complaint?

The complaint does not denominate this suit as being one brought under the Pure Food and Drug Act, Section 32-1451 et seq. of the 1952 Code, but a reading of the complaint indicates that the action is brought under the terms of this act as well as under the common law. It is not essential to plead the statute as such, but the Court is required to take notice of the statutes whether specifically mentioned or not if the allegations of fact bring the case...