Opinion
No. 33519.
February 20, 1939.
1. SALES.
The implied warranty of a bottler of beverages that the beverage is wholesome and fit for human consumption inures to the ultimate consumer.
2. SALES.
In action against beverage bottler for breach of implied warranty of beverage's fitness for human consumption, evidence that consumer discovered part of a dead mouse in bottle served by retailer made a prima facie case, shifting to bottler the burden of giving evidence that bottle did not contain part of a mouse when delivered to retailer.
3. SALES.
In consumer's action against beverage bottler for breach of warranty, evidence that bottle contained part of a dead mouse when purchased from retailer authorized verdict for plaintiff notwithstanding evidence of method of bottling which allegedly excluded possibility of contamination.
4. SALES.
In consumer's action against beverage bottler for breach of warranty, damages were recoverable for illness caused by nervous reaction from emotional distress at discovering part of dead mouse in bottle.
5. APPEAL AND ERROR. Damages.
The only standard of damages for pain and suffering is what a reasonable man would consider fair compensation, and verdict determining such damages will not be disturbed unless it evidences passion, prejudice, or corruption.
6. DAMAGES.
$500 to consumer of beverage for illness and nausea, continuing several days after drinking beverage which contained part of a dead mouse, held not excessive as evidencing passion, prejudice, or corruption.
APPEAL from the circuit court of Warren county; HON. R.B. ANDERSON, Judge.
Brunini, Wright Brunini, of Vicksburg, for appellant.
Mr. Justice Griffith, in the case of Swift Company v. Hawkins, 174 Miss. 253, 164 So. 231, reiterated the admonition in reference to the character of case then under consideration — illness from eating cheese containing decomposed flies, — to-wit: "The case is of that class wherein the courts must exercise more than ordinary scrutiny because of the danger of fabrication and imposition."
This Honorable Court has frequently held that there can be no recovery for mental pain or worry where there is no immediate pain or injury resulting from the negligent act.
Bonelli v. Branciere, 127 Miss. 556, 90 So. 245; M. O.R.R. Co. v. Flanagan, 141 Miss. 7, 105 So. 749; G. S.I.R.R. Co. v. Beard, 129 Miss. 827, 93 So. 357; Miss. Power Co. v. Byrd, 160 Miss. 71, 133 So. 193.
This Honorable Court has now held that where there is no physical injury or pain immediately resulting from the negligent act, there can be no recovery for mental worry and emotional distress and subsequent physical injury and suffering resulting solely from the mental distress.
Doherty v. Miss. Power Co., 178 Miss. 204, 173 So. 287.
The appellee herein received her bodily sufferings, if any, solely as the result of her mental and emotional distress. There can be no question in this case of malice, insult or fraud; there is only simple negligence.
The appellee became sick and nauseated because she thought she had swallowed portions of a decomposed mouse. There is no testimony and no reasonable inference that the decomposed mouse poisoned her system in any way or caused her any actual injury.
The verdict of $500 rendered in this case is excessive, evincing bias, passion and prejudice.
With a medical bill around $5 or $6, a recovery of $500 for approximately one week or ten days slight discomfiture is absurd. The law simply cannot sanction such recoveries in cases of this character.
Chaney Culkin, of Vicksburg, for appellee.
The testimony shows, without contradiction, that the bottle of Coca Cola in question was delivered to the Farris Grocery Store by the appellant and it was not uncapped until Mrs. Moore took it from the ice box and handed it to the cashier.
Swift Co. v. Hawkins, 164 So. 231; Coca Cola Bottling Works v. Lyons, 145 Miss. 876; Coca Cola Bottling Co. v. Chapman, 64 So. 791, 106 Miss. 864; Coca Cola Bottling Works of Greenwood v. Simpson, 130 So. 479, 72 A.L.R. 143; Bufkin v. Grisham, 128 So. 563.
The court will bear in mind that the appellee in this case was nauseated immediately after she drank some of the Coca Cola, and went to the rear of the Farris store building where she vomited. For three days thereafter she was so sick and nauseated she remained in her bed all of the time. For seven or eight days thereafter she was so sick and nauseated that she remained in her home. The amount of the recovery was only $500. In the case of Bufkin v. Grisham, supra, the injury suffered by Grisham was not so serious as that suffered by Mrs. Moore in the case at bar, in which case the court permitted a recovery of $1250 to stand.
Appellant cites, as sustaining its contention that it was entitled to a directed verdict, the case of Doherty v. Mississippi Power Co., decided by this court in March, 1937, 173 So. 287. Recovery was sought in this case upon the theory that Doherty suffered mentally as a result of being deprived of his lights for one night, but the court simply held that, under the rule established in this state, there can be no recovery for mental pain and suffering which is entirely disconnected from physical injury or physical suffering. We concede, of course, that this rule is well established in this state, but it has no application to the facts in the case at bar, for the reason that Mrs. Moore suffered, as the record discloses, considerable physical pain, nausea and discomfort as a result of swallowing the foreign substance in the bottle.
In the case of Mississippi Power Co. v. Byrd, 133 So. 193, decided by this court in April, 1931, the same question was involved. In the opinion in this case, which was rendered by Judge Anderson, it was stated that the evidence failed to show that Byrd, the appellee, suffered any physical injury on account of being deprived of his electric lights for a period of two days.
M. O.R. Co. v. Flanagan, 105 So. 749.
Argued orally by John Brunini, for appellant, and by John Culkin, for appellee.
This action is on the implied warranty of a bottler of beverage that the beverage bottled and distributed by him is wholesome and fit for human consumption, which this Court holds inures to the ultimate consumer. Kroger Grocery Company v. Lewelling et al., 165 Miss. 71, 145 So. 726, and the numerous cases there cited.
The appellant says that the court below erred in:
1. Refusing its request for a directed verdict in its favor.
2. Refusing to exclude the appellee's evidence of pain and suffering.
3. Refusing its request for an instruction directing the jury to award the appellee only nominal damages.
4. Refusing the following instruction: "The Court instructs the jury for the Defendant that the law does not permit the recovery of damages for illness or pain occasioned solely by mental worry or fright or revulsion, and if you find for the Plaintiff, and you further believe that Plaintiff's suffering, if any, was occasioned solely by her mental or emotional disturbance, then even though you may still bring in your verdict for the Plaintiff, the damages allowed her by you shall be only nominal, by which is meant some trifling sum which is allowed for the infringement, if any, of her legal rights."
5. Refusing to hold that the verdict of $500 is excessive.
The evidence discloses that the appellee purchased from a retail dealer a bottle of Coca Cola, which the jury was warranted in believing was bottled by the appellant and delivered by it to this dealer. The cap on the bottle was removed by the retailer for the appellee, who then drank part of the Coca Cola, discovered about half of a mouse therein, and was made sick thereby. This evidence made a prima facie case for the appellee and shifted to the appellant the burden of giving evidence that no part of a mouse was in the bottle when delivered to the retail dealer. This it attempted to do by proving its method of bottling beverages, which it says excludes any possibility of unwholesome matter getting into bottles. No evidence was introduced as to how this particular bottle was filled, except that all bottles were filled in accordance with the appellant's custom therefor.
All this may be true — nevertheless, a part of a mouse was in the bottle when purchased by the appellee, and the jury was warranted from the evidence in believing that when the bottle was uncapped, it was in the same condition that it was in when delivered by the appellant to the retailer, and that nothing got into its contents after the cap was removed, and before the appellee drank it. Consequently the jury was warranted in believing that notwithstanding the care exercised by the appellant, a part of a mouse was in the bottle when the appellant delivered it to the retailer, from which it follows that no error was committed in refusing the appellant's request for a directed verdict.
The second, third, and fourth assignments of error may be considered together for each of them is predicated upon the appellant's claim that the appellee's illness was "occasioned solely by mental worry or fright or revulsion." The evidence of the physician who treated the appellee a few minutes after she drank the Coca Cola, and also for some days thereafter, was to the effect that the appellee's nausea and illness, which continued over a period of several days, was caused by "a nervous reaction from the thought of having swallowed this material." In support of these assignments of error, the appellant cites our line of decision in actions ex delicto holding that mental suffering disconnected from physical suffering is not an element of damages. What we have here, however, is a breach of the appellant's contract — an implied warranty — that the contents of the bottle purchased by the appellee were wholesome and suitable for human consumption — specifically that it did not contain a part of a dead mouse, which warranty the jury has said was broken. The natural and ordinary consequence of one drinking a beverage and then ascertaining that it contained a part of a dead mouse is that he would become nauseated — sick at the stomach, a physical ailment. Whether this physical ailment was preceded by and resulted from emotional distress caused by ascertaining the presence of the animal matter in the bottle is of no consequence, for the appellant's failure to keep this matter out of the bottle was the cause of the emotional distress, which directly resulted in the physical injury. Hale on Damages, 146; cf. Doherty v. Mississippi Power Company, 178 Miss. 204, 173 So. 287. The second, third, and fourth assignments of error present no erroneous ruling of the court below.
This brings us to the fifth assignment of error. There is no exact standard by which to determine the amount of damages to be awarded for pain and suffering, the only standard therefor being what a reasonable man would consider as fair compensation therefor — what the jury, as reasonable men, so consider and a jury's verdict so determining will not be disturbed unless it evidences passion, prejudice, or corruption, and we cannot say that any such appears here. Cf. Bufkin et al. v. Grisham, 157 Miss. 746, 128 So. 563.
Affirmed.