Wichita Coca-Cola Bottling Co. v. Tyler, COCA-COLA
| Decision Date | 16 March 1956 |
| Docket Number | COCA-COLA,No. 15698,15698 |
| Citation | 288 S.W.2d 903 |
| Parties | WICHITABOTTLING COMPANY, Appellant, v. T. W. TYLER, Appellee. |
| Court | Texas Court of Appeals |
Jones, Parish & Fillmore, and Elmer H. Parish, Wichita Falls, for appellant.
Allred & London, Renne Allred, Jr., Bowie, and Houston H. McMurry, Henrietta, for appellee.
This is a 'mouse in the bottle' case. A primary question presented is whether plaintiff T. W. Tyler introduced evidence of sufficient probative force and value to sustain the jury's findings against the defendant Wichita Coca-Cola Bottling Company upon which judgment for damages was based.
We do not perceive from defendant's brief where there is actually a question of the sufficiency of proof related to the jury's findings that defendant did actually prepare and distribute to the retailer, an automobile service station operator, the bottle of coco-cola containing the deceased mouse. The same is true relative to the illness and disability to the plaintiff as the result of consuming the coca-cola therefrom. There is a true question presented upon the matter of whether proof was sufficient to establish the fact, and support the jury's finding, that the coca-cola was unfit for human consumption (because of the mouse) at the time it was delivered to the retailer.
We have examined the evidence and are of the opinion that there was sufficient evidence to support the verdict and judgment.
We elaborate upon the matter of sufficiency of the evidence to establish that the coca-cola was unfit for human consumption at the time it was delivered to the retailer (i. e., that it contained the mouse at such time). Defendant points out that it perhaps became unfit (through the insertion of the mouse) between the time of the delivery and of the plaintiff's consumption of it (and particles of mouse) a few days thereafter. Between the time coca-cola was delivered to the service station retailer and the time such retailer placed same in his beverage cooler box from which he dispensed the same at the time of sale, warm coca-cola in cases was kept in a storage room at the premises. The storage room was accessible to other persons, in particular to dealers in bottled soft drinks who were in competition with the defendant. Warm soda pop in cases delivered by defendant's competitors to the retailer, was stacked proximate to and right alongside the cases of coca-cola in said storage room. It is the contention of the dedendant that one of its competitors could have furtively removed the cap from the subject bottle, inserted the mouse later discovered therein, and recapped the bottle in such a way as would defy detection other than by an expert. Defendant theorizes that just such an event could have been the circumstance in this case, and contends that since the evidence did not show that the retailer kept the bottle of coca-cola under lock and key, or otherwise protected against such tampering, between the time defendant delivered it to him and the time plaintiff received it,-but on the contrary proved the exact opposite,-there was either no evidence supporting the jury's finding as of the time defendant delivered the bottle or in the alternative there was insufficient evidence to support such finding.
We do not perceive where plaintiff should ordinarily have a greater burden of proof thrust upon him because of the fact that a manufacturer adopts a type of container susceptible to undetected tampering, or avails competivite wholesalers of an opportunity to sabotage one another's products, at least in the absence of some character of notice that the wholesalers were predisposed to such acts. We believe that we might take judicial notice that those in the soft drink business are not so disposed, as evidence the fact that for at least a generation they have continued the use of metal type 'clamp-on' bottle caps which may be removed and replaced. We believe that this continued custom, instead of some character of cap with seal, which would be necessarily broken in order to tamper with the contents, speaks for itself. It seems to us that the same thing would apply to third persons other than the competitive wholesalers, particularly where there is no evidence that there had been any tampering.
And that is true in the instant case. There was evidence that the bottle was capped just like any other bottle of cocacola, that there was nothing in connection with the removal of the cap that was other than ordinary to the removal of a bottle cap, and there was evidence that the bottle 'spewed' just like any other ordinary bottle of freshly opened coca-cola. These events, coupled with those that followed, during which the plaintiff drank...
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Brayman v. 99 West, Inc., No. Civ.A. 98-11413-MBB.
...for two to three weeks and aggravation of gall bladder condition for two to three months); Wichita Coca-Cola Bottling Company v. Tyler, 288 S.W.2d 903, 904-904 (Tex.Ct.App. — Fort Worth 1956) ($3,500 verdict not excessive for the plaintiff who drank Coca-Cola containing dead mouse, vomited ......
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Wallace v. Coca-Cola Bottling Plants, Inc., COCA-COLA
...Brittain, 234 Ala. 548, 176 So. 286; Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 P.2d 436; Wichita Coca-Cola Bottling Co. v. Tyler, Tex.Civ.App., 288 S.W.2d 903; Keller v. Coca-Cola Bottling Co. of Walla Walla, 214 Or. 654, 330 P.2d In Lajoie v. Bilodeau, 148 Me. 359, 93 ......
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Keller v. Coca Cola Bottling Co. of Walla Walla, Wash.
...texts than any other found. A recent dicision of the Texas Court of Civil Appeals is very close in point. Wichita Coca-Cola Bottling Co. v. Tyler, Tex.Civ.App., 288 S.W.2d 903, 905. In that case a dead mouse was found in a bottle of coke partially consumed by plaintiff. The bottle was purch......