Sweeney v. Cain, 12320

• Decision Date: 07 November 1951
• Docket Number: No. 12320,12320
• Citation: 243 S.W.2d 874
• Parties: SWEENEY et al. v. CAIN.
• Court: Texas Court of Appeals

Page 874

243 S.W.2d 874

SWEENEY et al. v. CAIN.

No. 12320.

Court of Civil Appeals of Texas, San Antonio.

Nov. 7, 1951.

Rehearing Denied Nov. 28, 1951.

Davenport & Ransome, Brownsville, for appellants.

Asa H. Moore, La Feria, for appellee.

W. O. MURRAY, Justice.

This suit was instituted by Lucy Cain against Thomas H. Sweeney, Jr., and Payton T. Sweeney, seeking to recover damages alleged to have been sustained by her as the result of drinking a bottle of Coca Cola with some foreign substance in it. The trial was to a jury and resulted in judgment in plaintiff's favor in the sum of $2000.00, from which judgment defendants have prosecuted this appeal.

Appellants are engaged in manufacturing and selling Coca Cola in Cameron County and delivered Coca Cola to various business establishments, including the Red & White grocery store located on the East side of South Main Street in La Feria, Texas. On the 31st day of July, 1950, appellee purchased a bottle of Coca Cola at this store and drank about half of it when she discovered a foreign substance in the bottle. She described this foreign substance as 'a greenish brown slimy looking stuff with black spots in it.' She took some of this foreign substance in her mouth, she swallowed some of it and some she spit out. She showed the contents of the bottle to others present and they all testified there was a foreign substance in the bottle. In about fifteen or twenty minutes she became sick and went home. She had cramps in the pit of her stomach and cold perspiration began pouring off her face. She was deathly sick. She started vomiting. She placed herself under the care of a doctor who treated her a number of times almost daily up to September 17, 1950. She did not go back to work until October 5th. The contents of the bottle were analyzed for certain poisons but none were found. An analysis of the contents of the bottle was made on August 9th which showed mold. The bottle had been kept in a refrigerator during the intervening time.

Appellants contend that they should have been given an instructed verdict because there was no evidence identifying the foreign substance in the bottle of Coca Cola in question nor purporting to show that such substance constituted a contamination to such and extent that it was unfit for human consumption. And, further, that there is no evidence the foreign substance in the bottle of Coca Cola was the cause of appellee's illness and damage.

It is true that there was not a chemical analysis showing just what the foreign substance in the beverage was, or that it was poisonous or unfit for human consumption. The analysis did show that there was a mold formation present in the bottle.

It is settled law in this state that manufacturers of food or drink which is intended for human consumption may be held liable for damages caused to a person who eats or drinks the same upon an implied warrant, if such food is contaminated to such an extent that it is unfit for human consumption. Decker & Sons, Inc., v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479.

The question here raised is the sufficiency of the evidence to raise a jury question as to the unfitness for human consumption of the contents of the bottle in question.

The evidence shows that appellee, who was feeling perfectly well at the time, drank from a bottle of Coca Cola which contained a brown, greenish slimy substance with black specks in it and within fifteen or twenty minutes thereafter she became very sick, her stomach began to cramp, cold perspiration began to pour off her face, and she began vomiting. She became so sick that she had to be treated by a physician for a number of days. She did not go back to work for more than two months. This evidence was sufficient to raise a question of fact to be decided by the jury as to whether or not the contents of the bottle in question were contaminated to such an extent as to be unfit for human consumption. The question was submitted to the jury and answered by them favorably to appellee. There is no reason to set this finding aside.

It is true that the chemical analysis did not reveal any poison in the bottle but only a mold formation. It is also true that appellee's evidence does not show just what the foreign substance in the bottle was unless it was mold. However, a person drinking from a bottle of Coca Cola which is ordinarily clear, pure and wholesome, suddenly finding her mouth full of a brown, greenish slimy substance, swallowing part of it and being able to spit some of it out, then looking into the bottle and finding this greenish slimy substance, could very easily become sick and suffer from intense nausea and such nausea could produce sickness requiring treatment of a physician as was the case here. Under such circumstance you could hardly say that such Coca Cola was a wholesome beverage fit for human consumption.

We are cited to Amarillo Coca Cola Bottling Co. v. Loudder, Tex.Civ.App., 207 S.W.2d 632. In that case the foreign matter in the bottle was identified as a mouse, while here there is no identification of the foreign matter. Appellants contend that the foreign substance must be identified so that the jury may determine whether or not it was fit for human consumption. We have not found any Texas case where the foreign matter...