Whited v. Atlanta Coca-Cola Bottling Co., COCA-COLA
Decision Date | 19 May 1953 |
Docket Number | COCA-COLA,No. 2,No. 34584,34584,2 |
Citation | 88 Ga.App. 241,76 S.E.2d 408 |
Parties | WHITED v. ATLANTICBOTTLING CO. * |
Court | Georgia Court of Appeals |
Syllabus by the Court.
The case was one which under the evidence should have been submitted to a jury on the question of negligence, and it was error to grant a nonsuit.
A. G. Whited entered suit against Atlanta Coca-Cola Bottling Company. The petition in substance alleged:
First, that the defendant is a corporation with its place of business in Fulton County, Georgia.
Second, that it is engaged in the manufacturing, bottling, and distributing for sale at retail to the public a soft drink known as Coca-Cola; that the drink is composed of various food concentrats mixed with carbonated water and bottled in a specially manufactured container or bottle, and sealed with a metal cap; that it is manufactured by the defendant and bottled solely for sale to the public for consumption as a beverage and refreshment drink, and is held out by the defendant to the public as harmless, safe, and wholesome for human consumption as a food or drink.
Third, 'that defendant did, on the date set out hereafter or some date prior thereto deliver such sealed bottle of Coca-Cola in a quantity to a place of business known as Downtown Chevrolet Company * * * in the City of Atlanta, Georgia, the purpose of such delivery was so that said Downtown Chevrolet Company could sell bottles of Coca-Cola to the general public * * *.'
Fourth, 'that on the 22nd day of August, 1951, petitioner purchased from said Downtown Chevrolet Company a bottle of said Coca-Cola manufactured, bottled, and distributed by the defendant as aforesaid.
(a) 'That the bottle of Coca-Cola thus purchased was then and there opened by the petitioner and he placed the bottle to his mouth and drank therefrom the Coca-Cola contained therein.'
Fifth, 'That, upon taking a portion of the said drink from the bottle as aforesaid, petitioner for the first time learned that in said bottle there was the dead body of a partially decomposed roach.'
(a) The liquid thus swallowed was poisonous to the human system, putrid, deleterious, and unwholesome because of the said decaying matter therein, to wit, the decomposed body of a roach, and caused petitioner to retch and vomit; he suffered great nausea and sickness for several weeks continuously.
(b) The memory of the shock which he thus suffered, the sickness and vile and putrid and deleterious liquid entering his mouth, throat, and stomach caused him for months thereafter to rebel against any kind of food or drink and to become at times temporarily without appetite, and unable at times to eat.
(c) 'The violent, physical effort in his stomach caused when he repelled the poisonous, putrid, deleterious and unwholesome liquid resulted in pains in his stomach which lasted for several days and left the muscles of his abdomen sore and sensitive.'
(d) 'He suffered and does suffer from said experience, shock and mental and physical pain and anguish.'
Sixth, 'Petitioner was before said occurrence, strong, healthy and well; able to consume any kind of wholesome food and drink and he had no mental or physical pain and anguish whatsoever.'
Seventh, 'Petitioner shows that said defendant in bottling and offering for sale said drink, did not use ordinary care and diligence, in that they failed to keep foreign, putrid and deleterious and unwholesome matter out of said Coca-Cola but allowed said roach to get into said bottle and become sealed therein, and failed to properly inspect said package or bottle so as to prevent its being sent out to be sold to the general public in the poisonous, deleterious, putrid, and unwholesome condition in which it was, as aforesaid, all of which was: (a) negligence as a matter of fact, and (b) negligence as a matter of law in violation of the provisions of Code, § 105-1101, which provides: 'Any person who knowingly or carelessly sells to another unwholesome provisions of any kind, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or his family, shall be liable in damages for such injury.'' (c) The approximate cause of petitioner's injuries, as aforesaid, and the damages therefor hereinafter claimed.
'Wherefore petitioner prays: (1) that process issue requiring the defendant to be and appear at this honorable court within the time provided by law to answer petitioner's complaint; (2) judgment against the defendant in the amount of $5,000.'
No demurrer was interposed. The defendant answered admitting paragraphs 1, 2, and 3 of the petition. The defendant for want of sufficient information neither admitted nor denied the allegations of paragraphs 4, 4(a), and 5 of said petition. The defendant denied the allegations of paragraph 5(a). The defendant for want of sufficient information neither denied nor admitted the allegations of paragraph 6 of the petition. The defendant denied paragraph 7 of the petition. The defendant, further answering, averred: 'That at all times they use the highest possible degree of care in the preparation and bottling of the drink known as Coca-Cola and that it has never knowingly or carelessly bottled or sold any product containing unwholesome matters.' In support of the petition, the plaintiff testified in his own behalf substantially: That on August 22, 1951, he sent his helper, Ferguson, to the machine in question for a Coca-Cola; that the helper returned with the Coca-Cola and handed it to the witness in the presence of Mr. Thompson, a sales representative; that witness pressed the top off the bottle of Coca-Cola on the edge of the bench and drank the contents; that in about a minute or so after the witness took a drink from the bottle and before he started drinking against from the bottle, he turned sick and started vomiting and vomited continuously for nearly an hour. Witness did not know what it was that made him sick. He did know that one of the objects was a roach. Witness recognized the bottle which had the Coca-Cola trademark registered thereon. He recognized it as a part of the Coca-Cola that he drank. He drank about half of the contents of the bottle that came out of the vending machine in question. There was a roach in the bottle which witness drank. Witness did not know the other contents of the bottle. He was positive the bottle exhibited to him was the one from which he drank. Witness further testified that Mr. Thompson carried the plaintiff to a company doctor; that the plaintiff was actually sick about four days, but only remained off the job the day he drank the Coca-Cola and the following day; that he did not feel like working for about four days, but he did so because there was no one to take his place; that the doctor gave the plaintiff something to settle his stomach; that his stomach was very sore for three or four days as a result of vomiting; that he vomited continuously for an hour. The plaintiff further described the ill effects which resulted from his drinking the Coca-Cola with the roach in it. The plaintiff kept the bottle from which he drank from the date he drank the Coca-Cola until the date of the trial and 'no one has monkeyed with it.'
On cross-examination, the witness testified that he was head of the paint department at Downtown Chevrolet, authorized dealer; that the Coca-Cola vending machine was somewhat in an open space where people drove in and repairs were made on automobiles; that Ferguson, the helper who brought the Coca-Cola to the plaintiff, is a colored man; that the helper brought the Coca-Cola to the plaintiff; that the Coca-Cola bottle was not opened when handed to the plaintiff by the helper; that the helper brought one Coca-Cola to the plaintiff and one to Mr. Randall, both unopened--'I opened mine myself'; that the defendant did not examine the bottle in any way before he opened and drank the Coca-Cola; that he never had examined the contents of a bottle of Coca-Cola that he bought; that the plaintiff carried the Coca-Cola bottle with him when Mr. Thompson carried the plaintiff to the doctor; that the plaintiff kept the bottle stored in a closet in his home; that he showed it to his lawyer the day before the trial; that the plaintiff went to no other doctor; that the plaintiff took two doses of medicine which the company doctor gave to him.
T. L. White testified for the plaintiff, substantially: that he was a parts manager for the Downtown Chevrolet Company; that the company has no way of dispensing Coca-Cola to people other than the Coca-Cola vending machine; that they had a standard coin-vending machine as furnished by the Coca-Cola Company on August 22, 1951; that the bottles were put in the machine, the machine locked, and the bottles could only be gotten out by someone unlocking the machine with the key and then using a wrench to unbolt it, or else using a coin; that the only time the machine is ever opened for any other purpose than to load it is when the machine gives some trouble and the Coca-Cola Company sends a service man out to service the vending machine; that the custom prevails that the Coca-Colas are delivered by the Coca-Cola Bottling Company; they are taken from a truck and carried around past the machine to a cabinet that is built into a wall in a corner in the building and locked up; that the general custom of handling the Coca-Colas is that sometimes the man who delivered the Coca-Colas locked the cabinet, and that when he didn't lock it, one of the attendants of the Downtown Chevrolet Company locked it; that the Coca-Cola crates were never left out over a few minutes when people could get to them. On cross-examination, this same witness testified: 'There are five of us at the present time working in the parts department;' that the parts department does not actually run the Coca-Cola vending machine; that the Downtown Chevrolet Company owns the machine; that it was one of witness' assigned days to fill the...
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