Rainwater v. Hattiesburg Coca-Cola Bottling Co.

• Decision Date: 12 March 1923
• Docket Number: 22776
• Court: Mississippi Supreme Court
• Parties: RAINWATER v. HATTIESBURG COCA-COLA BOTTLING CO

95 So. 444

131 Miss. 315

RAINWATER v. HATTIESBURG COCA-COLA BOTTLING CO

No. 22776

Supreme Court of Mississippi

March 12, 1923

FOOD. Manufacture or bottler of unwholesome beverage liable although purchased of middleman.

A manufacturer or bottler of beverages impliedly warrants that the beverages manufactured or bottled by him are wholesome and fit for human consumption, and is liable to a consumer for damages suffered by reason of drinking an unwholesome beverage manufactured or bottled by him, although it was purchased by the consumer from a middleman, and not direct from the manufacturer or bottler.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Robert J. Rainwater against the Hattiesburg Coca-Cola Bottling Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

W. A Shipman, for appellant.

We call the attention of the court to the fact that the action sounds in tort. The plaintiff did not stand in privity of contract with the defendant and it is conceded that the general rule of law is that a manufacturer is not liable to third parties who have no contractual relations with him, for the manufacture or sale of the articles. To this rule, however there are well recognized exceptions, among which is the case of the manufacture and sale of soft drinks, into which the case at bar falls. The declaration states a cause ex delicto, alleging the negligence of the defendant "in failing to exercise reasonable care and caution to prevent the entrance into the said beverage in said bottle contained, of the poisonous, filthy and disgusting insects and matter aforesaid. There is no hint in the declaration of a warranty by implication of law, although under a well-settled rule of law, the cause might properly have been predicated upon this proposition, and under the rule and decision of this court the plaintiff could as well have maintained his suit ex contractu as ex delicto. Snow v. Schomacker Mfg. Co., 69 Ala. 111; Kennebrew v. So. Auto El. Co., 106 Ala. 380, 17 So. 545; Kellogg Bridge & Co. v. Hamilton, 110 U.S. 108, 3 S.Ct. 537; Jackson Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791.

The question then arises: What is the reasonable care and caution which the defendant is bound to observe in the manufacture, preparation and bottling of a soft drink, designed for and represented as a harmless and healthful beverage? What might be reasonable care in the manufacture of house paint would fall far short of the requirements, for reasonable care in the manufacture, preparation and packing of foods, drugs, condiments and beverages. Therefore, the word reasonable, as used in the books is relative and elastic in its meaning.

The real ground of liability of the seller to an ultimate consumer is, more properly speaking, a duty one owes to the public not to put out articles to be sold upon the market for use injurious in their nature, of which the general public have not means of inspection to protect themselves. The foundation of liability here, as elsewhere, is a superior knowledge of the manufacturer or seller as to the peril embodied in the article sold. 24 R. C. L. 514, supported by numerous authorities.

The exception here referred to, that is, the manufacture and sale of beverages, like all the others, grew out of the necessity of the situation, declaring a wise public policy for the protection of human life and health, and placed upon the manufacturer of drugs, foods, and beverages, a high degree of care, because of their superior knowledge of the articles manufactured, and the necessary reliance which the public must place upon them. As expressed in Mazetti v. Armour & Co., 75 Wash. 628, 48 L. R. A. (N. S.) 223, that such manufacturers "having an opportunity to investigate, and thereby know the quality of their merchandise" are charged with a high degree of responsibility, and in manufacturing and placing on the market for consumption by the general public, the law requires of them the exercise of a high degree of care to determine that no foreign and deleterious substances shall enter into the article, and that the public shall not be deceived thereby. See: Jones v. Gulf States Steel Co., 88 So. 21 (Ala.); Watson v. Augusta Brewing Co., 124 Ga. 121, 1 L. R. A. (N. S.) 1178; Cherro-Cola Bot. Co. v. Weeks, 80 So. 734 (Ala.); Jackson Coca-Cola Co. v. Chapman, 106 Miss. 864, 64 So. 791; Pillars v. Tobacco Co., 117 Miss. 490, 78 So. 364.

One of the early and leading cases declaring the exceptions to the general rule is that of Thomas v. Winchester, 6 N.Y. 397, 57 Am. Dec. 455, which holds that a manufacturer of drugs, who by himself or his agent sells poisonous drugs, represented to be harmless, is liable in damages to a person who, relying on the representation of the manufacturer as to the nature of the article, takes such drug as a medicine, on the ground of a breach of public duty, whether the person injured as an immediate customer of the manufacturer or a remote consumer.

This case of Thomas v. Winchester, has been cited in many later cases and generally with approval, and the exception therein declared has been broadened to include beverages, as well as drugs; and in our own state to embrace tobacco which is taken into the mouth for chewing. Bottling Co. v. Chapman, 106 Miss. 864; Pillars v. Tobacco Co., 117 Miss. 490.

In the Chapman case, supra, this court, by Justice REED, says: "There is evidence for appellant that its system for cleansing and filling bottles is complete and that there is watchfulness to prevent the introduction of foreign substances. Nevertheless the little creature was in the bottle. . . .

"We find the law pertinent to this clearly stated by Judge CANDLER in the case of Watson v. Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L. R. A. (N. S.) 1178, 110 Am. St. 157, as follows: 'When a manufacturer makes, bottles and sells to the retail trade, to be again sold to the general public, a beverage represented to be refreshing and harmless, he is under a legal duty to see to it that in the process of bottling, no foreign substance shall be mixed with the beverage, which, if taken into the human stomach will be injurious."

In this case, it is decided that the reasonable care which the bottler owes to the general public is that high degree of care to see to it that no foreign substance shall enter into the receptacle and become mixed with the beverage. No system, however complete, no amount of watchfulness, however constant, can absolve the manufacturer from liability, if the beverage is mixed with injurious foreign substances. The same high degree of care is stated in the Pillars case, supra; that is to say, such a high degree of care and caution as will utterly prevent any noxious substances from becoming bottled and mixed with an otherwise harmless beverage.

Applying this rule of law to the evidence in the instant case we find that defendant's only attempted defense is that it was a very complete system of inspection in connection with its operations, which however, has on several occasions failed to prevent the bottling and mixing with its products of foreign substances, such as flies, etc.

Carl Marshal, for appellee.

We feel that little argument is warranted in support of the judgment appealed from and here attacked by the appellant. Digesting appellant's brief, we are compelled to the conviction that he is confused in his interpretation of the opinions of this court in the cases of Jackson Coca-Cola Bottling Company v. Chapman, 106 Miss. 864, 64 So. 791; Pillars v. R. J. Reynolds Tobacco Company, 117 Miss. 490, 78 So. 356.

His inaccurate construction of these decisions gives rise to the erroneous positions assumed by him here on both phases of the appeal. (a) As to the correctness of submitting to the jury for determination initially and primarily the issue of fact whether the bottle of "orange crush" was sent out from the appellee's plant with the outrageous substances in it averred by the appellant. In the Chapman case, supra (decided in 1914), the supreme court approved the submission of all issues to the jury, and affirmed the judgment of the trial court upon the express ground that: "The record discloses sufficient evidence to sustain the jury's verdict." Had the verdict been for the defendant, as in this case, a judgment for the defendant bottling company likewise would have been affirmed.

In the Reynolds Tobacco Company Case, supra (decided in 1918), a peremptory instruction was granted by the court below in favor of the manufacturer. This court reversed the judgment of the lower court because the peremptory instruction was given, and the issues not submitted to the jury, as they should have been. Since the court was passing upon the propriety of a peremptory instruction for the defendant, every fact supported by evidence most favorable to the plaintiff's cause had to be assumed. Accordingly, this court in that case treated with the appeal upon the assumption that the human toe was in the plug of tobacco; the plaintiff having so testified. And in the Chapman case, there being evidence to support it, the verdict of the jury in favor of the plaintiff established the facts on appeal, and cut off inquiry as to their existence.

Obviously overlooking this common circumstance of the two authorities the appellant is misled into the belief that their holding is that a plaintiff's testimony to the effect that a defective bottled beverage was sold to, and sickened him, obligates the trial court to eliminate that question from the jury's consideration, and assume it to be true, whenever the plaintiff lays a scene in which the manufacturer, or bottler, may have no...