Whistle Bottling Co. v. Searson

• Decision Date: 27 April 1922
• Docket Number: 6 Div. 627.
• Citation: 92 So. 657,207 Ala. 387
• Parties: WHISTLE BOTTLING CO. v. SEARSON.
• Court: Alabama Supreme Court

92 So. 657

207 Ala. 387

WHISTLE BOTTLING CO. v. SEARSON.

6 Div. 627.

Supreme Court of Alabama

April 27, 1922

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action by E. A. Searson against the Whistle Bottling Company for damages for selling a beverage unfit for human consumption. Judgment for the plaintiff, and the defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911 p. 449. Affirmed.

Stokley Scrivner & Dominick, of Birmingham, for appellant.

Black Altman & Harris and T. E. McCullough, all of Birmingham, for appellee.

MILLER J.

This is a damage suit by E. A. Searson against the Whistle Bottling Company. The defendant was in the business of manufacturing and placing on the market in bottles a soft drink called "Whistle" for the public. A friend of plaintiff purchased from a retailer two bottles of Whistle, and gave one to plaintiff. It contained a bug called "thousand legs." Plaintiff was made sick, nauseated, and caused to suffer pain and mental anguish from drinking a portion of the contents of the bottle. There was judgment for plaintiff, and the defendant appeals.

There are two counts in the complaint. Count 1 claims damages for breach of a warranty, and count 2 for negligence. Count 1 was withdrawn, and demurrers to count 2 as amended were overruled by the court.

This court has declared this rule:

"An act of negligence of a manufacturer or seller, which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third persons who suffer from the negligence regardless of the privity of contract." Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A. L. R. 667.

"It has been observed that the real ground of liability of the seller to an ultimate consumer is, more properly speaking, a duty one owes to the public not to put out articles to be sold upon the markets for use injurious in their nature, of which the general public have no means of inspection to protect themselves." 24 R. C. L. sec. 806, p. 514; Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A. L. R. 667; Jones v. Gulf States Steel Co., 205 Ala. 291, 88 So. 21; Bellingrath v. Anderson, 203 Ala. 62, 82 So. 22.

Count 2, when carefully read, clearly contains sufficient averments to state a cause of action; and it is not subject to the demurrers. It alleges, first, a duty owed by the defendant to the public, of which plaintiff is a member, not to manufacture a drink, and place it on the market for sale for human consumption that will be injurious in its nature to human life. It alleges, second, a negligent breach of that duty by the defendant. It avers the defendant bottled a portion of the beverage, which was purchased by a merchant to be retailed for human consumption, and that defendant "negligently permitted said bottle of said beverage to be unsuitable and unfit, in a reasonable manner, for human consumption, by reason of it having therein a bug or insect of some kind, which made it nauseating, sickening, and dangerous to any person who consumed the said beverage." It alleges, third, an injury to plaintiff as a proximate result of that negligence. It avers the bottle as retailed to Thomas Dunlap in the presence of and for plaintiff's use and plaintiff drank a portion of it, was made sick, became nauseated thereby, and suffered pain therefrom. All of the three essential elements necessary to be averred in an action based on negligence to state a right of recovery sufficiently appear in this count. Tenn. C. I. & R. Co. v. Smith, 171 Ala. 251, 55 So. 170. The court did not err in overruling the demurrers to count 2. Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A. L. R. 667; Jones v. Gulf States Steel Co., 205 Ala. 291, 88 So. 21; Bellingrath v. Anderson, 203 Ala. 62, 82 So. 22.

Plaintiff was asked this question over objection of the defendant, "Did you suffer any during that time?" to which he answered, "Yes, sir; I suffered that time with my stomach, and have suffered since." In this there was no error. Suffering is a collective fact, known to the party enduring and feeling it, and he may testify to it. He feels the pain, knows it is there, and can give testimony concerning it. Thornton v. State, 113 Ala. 43, 21 So. 356, 59 Am. St. Rep. 97; Birmingham Ry. & Elec. Co. v. Franscomb, 124 Ala. 621, 27 So. 508.

There is an assignment of error based on a part of the oral charge of the court. It cannot be considered by this court on appeal, as no exception was reserved to it in the trial court. Mooneyham v. Herring, 204 Ala. 332, 85 So. 390; McPherson v. State, 198 Ala. 5, 73 So. 387.

Charge 5, requested by the defendant, was...