Tate v. Mauldin

• Decision Date: 14 August 1930
• Docket Number: 12959.
• Citation: 154 S.E. 431,157 S.C. 392
• Parties: TATE v. MAULDIN.
• Court: South Carolina Supreme Court

154 S.E. 431

157 S.C. 392

TATE v. MAULDIN.

No. 12959.

Supreme Court of South Carolina

August 14, 1930

Appeal from Common Pleas Circuit Court of York County; T. J Mauldin, Judge.

Action by Fred A. Tate against W. M. Mauldin, trading as the Rock Hill Coca-Cola Bottling Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Wilson & Wilson, of Rock Hill, for appellant.

Gaston Hamilton & Gaston, of Chester, and Hart & Moss, of York, for respondent.

BLEASE J.

The respondent in this case alleged, and he offered testimony to sustain the allegations of his complaint, material matters to the following effect: That the appellant, engaged in the business of bottling and placing on the market Coca-Cola and other bottled beverages, advertised and held out to the public generally, and to the respondent, that his bottled drinks were pure, wholesome, delicious, and refreshing; the respondent for some time had been in the habit of drinking the bottled beverages prepared and put on the market by appellant; that on September 9, 1927, or prior thereto, the appellant sold to McAteer & Dunlap, retailers of beverages, a certain bottle of Coca-Cola, and, on the date mentioned, the respondent bought that bottle for the purpose of drinking the Coca-Cola contained therein; that he did attempt to drink it, and drank a part thereof, and in taking the beverage into his mouth, he took along with it parts of a rotten, decayed, and poisonous carcass of a rat or mouse which was in the Coca-Cola; that, as a result, he immediately became sick and nauseated, and was seized with violent spasms and fits of vomiting, all of which caused him to suffer great mental anguish, mortification, embarrassment, great physical pain, impairment of digestion, loss of taste for certain foods and drinks, and permanent injuries to his health. Respondent demanded damages against the appellant in the sum of $10,000. As the basis for his claim, he alleged the facts already briefly stated, and further charged that his injuries were occasioned, directly and proximately, by the negligence, carelessness, and willfulness of the appellant, his agents and servants, in that the appellant bottled the said beverage with the rat or mouse therein; that he failed to use proper care to see that nothing unwholesome or injurious was contained in the drink; that the mouse was permitted to get into the beverage while, or after, being bottled at appellant's bottling works, and in failure to see that the bottle of Coca-Cola, sent out by him for consumption, contained no foreign substance injurious to health.

The appellant admitted that he was engaged in the bottling business, and that McAteer & Dunlap were among his customers, but denied generally all the other allegations of the complaint. He specifically denied any negligence on the part of himself or his agents and servants in bottling and placing on the market the particular bottle of Coca-Cola, alleged by the respondent to have contained the decomposed mouse. The appellant also said in his answer that "a long time prior thereto (September 9th, 1927) he had used in his bottling business the most modern machinery to insure cleanliness of his products, and adopting and using all methods known to be the highest state of the art of bottling, including the most thorough and rigid inspection through the entire process of bottling and dispensing." The appellant further set up that the crowns on coca-cola bottles could be easily removed therefrom and replaced by hand, and that it was easy for any person, so disposed to do, to remove the crown of a bottle and place a foreign substance in the contents of the bottle after it had left his plant and had reached the hands of the retailer.

In the trial of the cause in the court of common pleas for York county before a jury, his honor, Circuit Judge T. J. Mauldin, presiding, there was a verdict in favor of the respondent for the sum of $2,500 actual damages. From the judgment entered thereon, the case has come to this court.

The eleven exceptions of the appellant charge various errors on the part of the trial judge, in refusing to direct a verdict in his favor, to grant him a new trial after verdict, in the admission of certain testimony offered by the respondent, in refusing to allow certain testimony sought to be introduced by the appellant, and incorrectly instructing the jury as to certain legal principles.

We consider first exceptions 5, 6, 7, 9, and 10. These relate to the failure of the trial judge to grant the motion for a directed verdict, and the refusal to order a new trial, on these grounds: (1) That there was a total absence of any evidence going to show any negligence on the part of the appellant; (2) that there was opportunity for a third person to have put the foreign matter into the bottle after it reached the hands of the retailer; (3) the possibility that some one, including the respondent, could have placed the mouse in the bottle and recapped it, and there being no direct evidence of negligence in the operation of the bottling plant by the appellant or in the delivery of the bottle of Coca-Cola, and since the appellant showed extraordinary care in the bottling and distribution of the Coca-Cola, that the jury would have to go into the realm of conjecture and speculation in order to find any liability on the part of the appellant.

From statements to that effect in the arguments submitted in behalf of both the appellant and the respondent, and as a result of our own investigation, it seems that heretofore no case directly involving the legal principles applicable to the case at bar has come to this court. Accordingly, it becomes necessary for us, in determining the questions here presented, to seek assistance from the decisions in other jurisdictions and announcements of the law applicable to this cause as made in recognized text-books. Many articles and annotations on the subject of "Food," which term generally also includes beverages, have been written. We deem it altogether unnecessary to attempt even a slight review of the numerous holdings which may in some way or other affect the issues we have for settlement. We are content to approve certain principles, supported by many authorities, expressed in the following quotations from Corpus Juris:

(1) "A person who sells articles of food is under a legal duty to exercise reasonable care to insure their being wholesome and fit for consumption, and is liable in an action ex delicto on the ground of negligence for any injury resulting from their being unwholesome or unfit if he knew, or by the exercise of reasonable care could have known, their defective condition." 26 C.J. 783.

(2) "If a manufacturer of a food product disobeys the prohibition or neglects to perform the duty imposed by a pure food statute, negligence is implied from such violation or neglect, and he is liable for injuries resulting from the unwholesomeness of such food product regardless of his knowledge of its unwholesomeness." 26 C.J. 785.

(3) "Although differing in their reasoning, it is generally agreed by the authorities, that a manufacturer, packer, or bottler of foods or beverages is directly liable to a consumer for an injury caused by the unwholesomeness or the unfitness of such articles, although purchased from a dealer or middleman and not from such manufacturer, bottler, or packer." 26 C.J. 785.

(4) "Want of negligence upon the part of defendant is a defense to an action of trespass on the case for selling unwholesome food. The fact that food has been duly inspected, as provided by statute, does not relieve a vendor thereof for liability for its unwholesomeness or unfitness." 26 C.J. 787.

(5) "A purchaser of unwholesome food, who has been injured by partaking thereof, may not recover from the manufacturer or seller if he has been guilty of contributory negligence in so doing. And notwithstanding the statutory liability of the seller of impure food, the defense of defendant's contributory negligence is available." 26 C.J. 787.

The principles stated have received the approval of our General Assembly by the enactment of the Pure Food and Drug Law, now section 398 of volume 2 of the Code of 1922. Under the provisions of that section, it is made a misdemeanor ""for any person to manufacture or sell, or offer, for sale, any article of food or drug which is adulterated or misbranded, within the meaning of this Section. ***" The term "food," as used in the law, includes "all articles used for food, drink, confectionery, or condiment by man or other animals, whether simple, mixed, or compound." The statute declares that the word "adulterated" refers to food or beverage which "consists in whole or in part of a filthy, decomposed or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not. ***"

A leading case on the liability of a bottler of beverages for public consumption, the decision in which has been approved and followed in many other decisions throughout the country, and one which has been used as the basis for extended annotation, is that of Crigger v. Coca-Cola Bottling Company, 132 Tenn. 545, 179 S.W. 155, 157, L. R. A. 1916B, 877, Ann. Cas. 1917B, 572. That case arose because of the alleged fact that the plaintiff there, in drinking a bottle of Coca-Cola, took into his mouth, and partially swallowed, a decomposed mouse, which caused him to become very sick. While on the facts of the case a verdict in favor of the bottling company was sustained by the Supreme Court of Tennessee, the holdings made by the court seem to us to be based on excellent reasoning; and since they are so applicable to the case at bar we quote verbatim some of the conclusions.

"1. That one who prepares...