Tickle v. Hobgood, 737.

• Decision Date: 05 January 1938
• Docket Number: No. 737.,737.
• Citation: 194 S.E. 461,212 N.C. 762
• Parties: TICKLE. v. HOBGOOD et al.
• Court: North Carolina Supreme Court

194 S.E. 461

212 N.C. 762

TICKLE.

v.HOBGOOD et al.

No. 737.

Supreme Court of North Carolina.

Jan. 5, 1938.

Appeal from Superior Court, Alamance County; M. V. Barnhill, Judge.

Civil action by G. W. Tickle against Frank P. Hobgood, administrator of the estate of J. Frank Harrison, trading and doing business as the Coca-Cola Bottling Company of Burlington, North Carolina, for damages alleged to have been sustained by plaintiff from drinking a bottled beverage, containing noxious substance, manufactured by defendant. The defendant asked for a bill of particulars, and from an order overruling defendant's motion, defendant appeals.

Error.

Civil action by ultimate consumer to recover of manufacturer or bottler damages resulting from drinking bottled beverage containing noxious substance.

Plaintiff alleges that on May 9, 1936, he purchased a bottle of Coca-Cola, manufactured and placed on the market by defendant, which contained some deleterious substance; that he became ill from drinking part of its contents; and that he thereby sustained great injury and damage.

Anticipating that the plaintiff would attempt to show other instances of deleterious substances discovered in like products, manufactured under substantially similar circumstances and sold by the defendant "at about the same time, " Enloe v. Bottling Co., 208 N.C. 305, 180 S.E. 582, the defendant seasonably asked for a bill of particulars of any such instances which the plaintiff proposed to show and rely upon to make out his case.

The court, "being of opinion that the defendant is not entitled to the order prayed for, " overruled defendant's motion "as a matter of law and without exercise of the discretion vested in the court."

From the foregoing disposition of defendant's motion, he appeals, assigning error.

J. Dolph Long, of Graham, and R. M. Robinson, of Greensboro, for appellant.

Dameron & Young, of Burlington, for appellee.

STACY, Chief Justice.

An application for a bill of particulars under C.S. § 534, or a motion to require a pleading to be made more definite and certain under section 537, is addressed to the sound discretion of the trial court, and his ruling thereon, made in the exercise of such discretion, is not reviewable on appeal, except perhaps in extreme cases. Temple v. Western Union Tel. Co., 205 N.C. 441, 171 S.E. 630; State v. Bryant, 111 N.C. 693, 16 S.E. 326. Where, however, as here, the court denies the motion as a matter of law, without the exercise of discretion, the defendant...