Try-Me Beverage Co. v. Harris
| Decision Date | 22 March 1928 |
| Docket Number | 6 Div. 100 |
| Citation | 116 So. 147,217 Ala. 302 |
| Parties | TRY-ME BEVERAGE CO. et al. v. HARRIS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.
Action for damages by Catherine Harris, suing by her next friend Ruth Marshall, against the Try-Me Beverage Company, a partnership, and the individual members thereof. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.
B.F Smith, of Birmingham, for appellants.
London Yancey & Brower and Whit Windham, all of Birmingham, for appellee.
The action is for damages for personal injury resulting from drinking a beverage bottled and sold by defendants as "Try-Me," and which contained some foreign substance, to wit: Tin foil, tobacco, cigarette paper, or other foreign matter. The complaint charges the injuries were proximately caused by the negligence of defendants, or their employees, in the negligent manner in which the beverage was prepared, manufactured, or bottled.
The main insistence on appeal seems to be that the evidence did not identify the beverage bought by plaintiff as the defendants' product. For this cause it is claimed the affirmative charge should have been given, or a new trial granted.
The evidence went to show that defendants manufactured, bottled and sold for consumption, in and about Birmingham, beverages under the name of "Try-Me"; that such drinks were purchased and kept at the drink stand in St. Mark's school for sale to school children; that plaintiff, a school girl, purchased a bottle, and on drinking a portion of the contents discovered something wrong in the taste, which led to examination disclosing the presence of foreign matter as charged in the complaint; that presently plaintiff became nauseated, began vomiting, and was carried to the hospital for treatment. She was released after a few hours. The bottle alleged to have contained the drink was produced at the trial and identified as the same kind of bottle used by defendants. Plaintiff testifies "Try-Me" was imprinted on the cap. The drink was of grape flavor. Appellant seeks to construe the testimony as meaning the bottle was labeled as the beverage known as "Try-Me Grape," a different drink from "Try-Me" and presumably bottled by some other manufacturer. Some of the eyewitnesses describing the beverage called it a "Try-Me" grape. Other evidence, especially that of plaintiff, shows this phrase was merely used to identify the particular flavor of "Try-Me" beverage. The evidence was sufficient to go to the jury as basis for an inference that this particular bottle was of defendants' products. Defendants produced no evidence that any other bottler used...
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... ... v ... Crook, 222 Ala. 369, 132 So. 898, and Try-Me ... Beverage Co. v. Harris, 217 Ala. 302, 116 So. 147, 148, ... has held that "the presence of ... ...
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... ... and another for damages resulting from drinking a part of the ... contents of a bottled beverage. From a judgment for ... defendants upon a directed verdict, plaintiff appeals ... Reversed and ... v ... Chapman, 106 Miss. 864, 64 So. 791 ... In the ... case of Try-Me Beverage Company v. Harris, an Alabama case, ... 116 So. 147, it was held that the presence of ... ...
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Kirkland v. Great Atlantic & Pacific Tea Co.
... ... matter. Reichert Milling Co. v. George, 230 Ala. 3, ... 162 So. 393; Try-Me Beverage Co. et al. v. Harris, ... 217 Ala. 302, 116 So. 147; Coca-Cola Bottling Co. v ... ...
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Weston v. National Mfrs. & Stores Corp.
...Co. v. Clark, 205 Ala. 678, 89 So. 64, 65, 17 A.L.R. 667; Whistle Bottling Co. v. Searson, 207 Ala. 387, 92 So. 657; Try-Me Beverage Co. v. Harris, 217 Ala. 302, 116 So. 147; Collins Baking Co. v. Savage, 227 Ala. 408, 150 So. We applied the rule of the 'bottled drink' cases just above cite......