Texas Coca-Cola Bottling Co. v. Kubena, 1703.

• Decision Date: 22 October 1937
• Docket Number: No. 1703.,1703.
• Citation: Texas Coca-Cola Bottling Co. v. Kubena, 109 S.W.2d 1098 (Tex. App. 1937)
• Parties: TEXAS COCA-COLA BOTTLING CO. v. KUBENA.
• Court: Texas Court of Appeals

Page 1098

109 S.W.2d 1098

TEXAS COCA-COLA BOTTLING CO. v. KUBENA.

No. 1703.

Court of Civil Appeals of Texas. Eastland.

October 22, 1937.

Rehearing Denied November 19, 1937.

Appeal from District Court, Scurry County; A. S. Mauzey, Judge.

Action by Jim Kubena against the Texas Coca-Cola Bottling Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Cantey, Hanger & McMahon, of Fort Worth, for appellant.

John E. Sentell, of Snyder, for appellee.

LESLIE, Chief Justice.

Jim Kubena instituted this suit against the Texas Coca-Cola Bottling Company to recover damages suffered by him by reason of injuries sustained from drinking a bottle of Coca-Cola purchased from a retail dealer with whom that company had placed said product for sale to the public. It is alleged that the bottle of Coca-Cola purchased and drunk by the plaintiff contained a partly decomposed mouse. That immediately after drinking from the bottle he became extremely sick, vomited, etc. That the effects endured for a considerable time thereafter.

The defendant answered by a general demurrer, special exceptions, general denial, etc. The trial before the court and jury resulted in a verdict and judgment for plaintiff, and the defendant appeals.

The plaintiff alleged as bases for recovery against the defendant five grounds of negligence, namely: (1) Putting the bottle of Coca-Cola on the market with a dead mouse therein, knowing that in the usual course of business it would be offered for sale for human consumption; (2) in filling, capping, and putting the bottle of Coca-Cola on the market without having first removed from said bottle the mouse; (3) in failing to properly sterilize the bottle before refilling; (4) in failing to properly inspect the bottle after it was filled and capped; and (5) in putting the bottle of Coca-Cola on the market for sale through a retailer to the public without knowing the same to be fit for human consumption.

At the conclusion of the testimony, the court submitted special issues, in answer to which the jury found: (1) That the plaintiff drank from the bottle of Coca-Cola at Hermleigh, Tex., on or about September 27, 1933; (2) that the bottle contained part of a dead mouse; (3) that the contents of the bottle caused an injury to the plaintiff; (4) that the bottle from which plaintiff drank was delivered to J. W. Harkins' store for human consumption by the defendant; (5) that the dead mouse was in said bottle at the time it was so delivered by the defendant; (6) that the defendant was negligent in delivering the bottle of Coca-Cola containing the dead mouse to J. W. Harkins' store for human consumption; (7) that such negligence was the proximate cause of the plaintiff's injury; (8) that the defendant company bottled the dead mouse in the bottle of Coca-Cola from which the plaintiff drank; (9) that the defendant was negligent in so bottling the dead mouse; (10) that such negligence was the proximate cause of the injuries to the plaintiff; (11) $300 was the resulting damage. In response to special issue No. 12, the jury found that the dead mouse did not get into the bottle of Coca-Cola after it was delivered by the defendant to J. W. Harkins' store. Obviously, all grounds of negligence alleged were not submitted to the jury.

Once before the case has been before this court on issues involving a plea of privilege. 90 S.W.(2d) 605.

As indicated, the plaintiff pleaded alternative grounds of negligence. The appellant's first proposition presents the contention that the trial court erred in overruling various special exceptions to the plaintiff's original petition raising the following questions: (1) That the allegations therein are but "conclusions" of the pleader; (2) that they are "vague, uncertain and indefinite"; (3) that they do not set out how or in what manner the defendant was negligent; (4) that they do not apprise the defendant of the proof to be offered in support thereof; and (5) that the allegations are of a "general and speculative nature."

The gist of the appellant's contention is that the said allegations are too general, and are mere statements that the defendant was guilty of negligence, without stating how or in what manner it was negligent. In support of the proposition, the appellant's brief cites the following authorities: 30 Tex.Jur. 788, § 117; Missouri Pacific R. Co. v. Hennessey, 75 Tex. 155, 12 S.W. 608; Garrow v. Allen (Tex.Civ.App.) 260 S.W. 887, 889; Negociacion, etc., v. Love (Tex.Civ.App.) 220 S.W. 224; Texas & N. O. Ry. Co. v. Wallace (Tex.Civ.App.) 277 S.W. 708; Knight v. Lewis (Tex.Civ. App.) 283 S.W. 542; Turner v. Big Lake Oil Co. (Tex.Civ.App.) 62 S.W.(2d) 491; Warren v. La Salle Co. (Tex.Civ.App.) 262 S.W. 527, 530; Texas & N. O. Ry. Co. v. Conn (Tex.Civ.App.) 30 S.W.(2d) 939; Indemnity Ins. Co. of N. A. v. Jones (Tex. Civ.App.) 299 S.W. 674, 675.

Undoubtedly these authorities state the general rules of correct pleading, but a careful examination of the plaintiff's petition convinces us that its allegations come reasonably and substantially within said rules. Each ground of negligence is sufficiently definite and specific under the authorities. Texas Coca-Cola Bottling Co. v. Kubena (Tex.Civ.App.) 90 S.W.(2d) 605; Dunn v. Texas Coca-Cola Bottling Co. (Tex.Civ.App.) 84 S.W.(2d) 545, and cases cited in each opinion; Brown Cracker & Candy Co. v. Jensen (Tex.Civ.App.) 32 S.W.(2d) 227; Liggett & Myers Tobacco Co. v. Wallace (Tex.Civ.App.) 69 S.W. (2d) 857.

Appellant's second proposition presents that the trial court erred in refusing to grant its request for a peremptory instruction on the grounds that: (1) There was no negligence pleaded; (2) no proof of negligence; (3) res ipsa loquitur had no application; and (4) neither did implied warranty. Since the judgment does not rest upon any theory of implied warranty that contention is immaterial. The applicability of that rule of law to such state of facts has heretofore been considered by this court in an opinion by Justice Funderburk, in Dunn v. Texas Coca-Cola Bottling Co., 84 S.W.(2d) 545. See, also, F. W. Woolworth Co. v. Wilson (C.C.A.) 74 F.(2d) 439, 98 A.L.R. 681.

In response to proposition 1 we held the pleadings sufficient. An examination of the statement of facts discloses that the specific grounds of negligence submitted are amply supported by the testimony.

Propositions 3 and 7 are in substance the same. They have been considered, but believing them to be without merit we overrule them.

The fourth and fifth propositions are substantially the same, complaining respectively of the court's definition of "negligence" and "ordinary care." In each respect the court's...