Welch v. Coca-Cola Bottlers' Ass'n, COCA-COLA

• Decision Date: 29 May 1964
• Docket Number: COCA-COLA,No. 3880,3880
• Citation: 380 S.W.2d 26
• Parties: Odell WELCH, Appellant, v. TheBOTTLERS' ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 26

380 S.W.2d 26

Odell WELCH, Appellant, v. The COCA-COLA BOTTLERS' ASSOCIATION, Appellee.

No. 3880.

Court of Civil Appeals of Texas, Eastland.

May 29, 1964.

Rehearing Denied June 19, 1964.

Lefkowitz, Green, Ginsberg, Eades & Gilmore, Jack D. Eades, Dalls, for appellant.

Jackson, Walker, Winstead, Cantwell & Miller, W. B. Patterson, Dallas, for appellee.

COLLINGS, Justice.

Odell Welch brought suit against Coca-Cola Bottlers' Association to recover damages for personal injuries which plaintiff claimed to have sustained by drinking a portion of a bottle of coca-cola containing a foreign substance which plaintiff alleged the defendant had bottled. At the close of plaintiff's evidence the defendant made a motion for an instructed verdict on two grounds, (1) that there was no evidence the bottle of coca-cola had been bottled by appellee or had ever been in the care, custody or control of appellee and (2) that there was no evidence that the drink was unfit for human consumption. The court granted the defendant's motion, withdrew the case from the jury and rendered judgment that plaintiff take nothing. Odell Welch has appealed.

Appellant presents one point in which he contends that the court erred in granting appellee's motion to withdraw the case from the jury. Appellant contends that the evidence raised a fact issue on the question of whether he purchased coca-cola in appellee's sealed bottle which contained a foreign substance, the consumption of which caused his injuries and suffering. Appellant contends the evidence presented a prima facie case showing that he purchased a king-sized coca-cola in a sealed bottle from a barbecue stand in down town Dallas; that the bottle contained an unknown foreign substance which had the appearance of two black snails or bugs; that the consumption of the contents of the bottle and the sight of the foreign substance therein caused injury and damage to appellant, and that the barbecue stand from which appellant purchased the coca-cola is in the area of distribution of appellee's plant which bottles and sells coca-cola in Dallas County. Appellant contends that he 'was not required--to establish conclusively--that the particular coca-cola--was bottled by appellee.' Appellant also particularly attacks the accuracy of appellee's contention that there was no evidence that the beverage in question was unfit for human consumption.

We agree with appellant's contention that there was evidence that the coca-cola in question was unfit for human consumption. As heretofore indicated, one of the grounds upon which appellee based its motion for an instructed verdict was that there was no evidence the bottle of coca-cola was unfit for human consumption. Appellant contends that there was ample evidence that the drink was unfit for human consumption and the court erred in withdrawing the case from the jury based upon the assumption that there was no such evidence. We concur with appellant's contention in this respect.

The other ground upon which appellee based its motion for an instructed verdict was that there was no evidence that appellee had bottled or had any connection with the coca-cola upon which appellant Welch based his claim. Appellant contends that he was not required to establish conclusively that the coca-cola in question was bottled by appellee. In connection with the question of whether appellant has sufficiently connected appellee with the bottle of coca-cola involved the rule in such cases is set out in 36A C.J.S. Food Sec. 69(1), p. 921 as follows:

'In actions to recover for injuries caused by unfit or contaminated food, the general rules as to presumptions and burden of proof apply. Thus, the burden of proof is on plaintiff to show the existence of all the facts necessary to constitute a cause of action. Plaintiff must show defendant's connection with the food, that is, he must show that defendant manufactured, sold, or served the food, as the case may be * * *.' See also 77 A.L.R.2d 251, 252, where it is stated:

'Sec. 21. Necessity of identification.

"There is no room for doubt that a holding that a beverage manufacturer, bottler, or seller was liable for injury caused by the beverage must necessarily be predicated on proof that the beverage in question was one for whose condition the defendant was in some way responsible: thus, for example, if recovery is sought from a bottler, it must be shown that he was the bottler of the particular bottled beverage which caused injury."

The evidence shows that appellant went to Audie's Barbecue stand on Akard Street in Dallas for lunch and ordered a sandwich and a king-sized coke at the counter. When appellant received the bottle of coca-cola and drank a portion of it he saw two foreign bodies stuck to the inside bottom of the bottle which were about a quarter of an inch long and looked like two little black snails. This sight upset appellant's stomach and he became very sick. He thereafter went to the telephone booth and called the Coca-Cola Company on the expressway. He was told to call the Second Avenue Coca-Cola Bottling Company, which he did and requested that someone come and look at the bottle of coca-cola which he had purchased. Although he waited for some time no one came and because his stomach was still upset he didn't wait any longer.

Mr. C. J. McNamara was called by appellant as an adverse witness. Mr. McNamara testified in effect that he was manager of appellee Coca-Cola Bottling Company which had two plants in Dallas where coca-cola was bottled; that the cokes bottled in these two plants were distributed in the Dallas area, and that they had warehouses in Waxahachie, Denton and Terrell. When asked if any other bottling company bottled and distributed coca-cola in the Dallas area Mr. McNamara replied 'That has happened, yes.' When asked 'Is that the normal procedure, or is that abnormal procedure' he stated that it was abnormal but that 'it has happened.' The bottle of coca-cola in question was not introduced in evidence and there is no showing in the record that there were...