Summary
In Duley v. Coca-Cola Bottling Co. of St. Louis, Mo. (1950), 232 S.W.2d 801, the plaintiff noticed an odd taste in her coke.
Summary of this case from Kroger Co. v. BeckOpinion
No. 27952.
September 19, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, WM. K. KOERNER, J.
Moser, Marsalek, Carpenter, Clearly Carter, Lee M. Carter and Robert G. McClintock, all of St. Louis, for appellant.
Wilbur C. Schwartz and Harry M. James, St. Louis, for respondent.
This suit was brought by plaintiff to recover damages on account of an alleged breach of warranty by defendant in the sale of a bottle of Coca-Cola beverage manufactured by it. A trial before the court and a jury resulted in a verdict and judgment for plaintiff in the sum of $1,000.00. The trial court ordered a remittitur of $800.00 and plaintiff remitted said sum, whereupon the court entered a judgment in favor of plaintiff in the sum of $200.00. Defendant duly appealed to this court.
Plaintiff's petition alleged that defendant was engaged in the business of manufacturing, bottling, selling and distributing the beverage known as Coca-Cola; that on or about the 11th day of January, 1940, defendant sold to plaintiff a bottle of Coca-Cola warranting that it was pure, wholesome, harmless and safe to drink and fit for human consumption; that plaintiff drank a portion of the contents of said bottle and that in violation and breach of defendant's warranty the bottle contained a safety pin which was rusty and contaminated and contained debris of some sort and by reason thereof said contents were not pure, harmless, wholesome and safe to drink and fit for human consumption; that immediately after drinking and swallowing a portion of the contents of said bottle of Coca-Cola plaintiff became violently nauseated and ill accompanied by severe retching, continuous vomiting and severe pain and cramps in and about her abdomen and stomach; that her entire system was poisoned by said beverage; that she cannot partake of nourishment as formerly and that she frequently becomes ill and nauseated; that she suffered a severe shock to her nervous system and suffered physical and mental pain and anguish, all as a direct and proximate result of the breach of warranty by defendant.
Defendant's answer admitted that plaintiff was an infant of the age of 18 years and that she brought this suit by and through Caroline Marek, her mother and natural guardian, and that defendant was and is a corporation existing under and by virtue of the laws of the State of Missouri and engaged in the general business of bottling and distributing to the retail trade the beverage known under the name of Coca-Cola. Defendant's answer then denied each and every other averment contained in plaintiff's petition.
At the trial plaintiff introduced in evidence answers to the interrogatories made by defendant in which it admitted that an employee of defendant had delivered the bottle of Coca-Cola mentioned in plaintiff's petition to the Lederle Laboratories, 1705 Locust Street in the City of St. Louis; that the bottle of Coca-Cola in question was manufactured and prepared by defendant; that defendant warranted the bottle of Coca-Cola in question to be pure, wholesome, harmless and fit for human consumption and that at the time of the alleged drinking of the beverage by plaintiff a Mr. B. Sullivan was employed by defendant as a superintendent in its Industrial Department.
Plaintiff testified that on January 11, 1949, she was employed by the Lederle Laboratories as a typist and file clerk; that a coin operated Coca-Cola machine was located in the office of said Laboratory; that on the day named she ate her lunch at her place of employment; that during the process of eating she bought a bottle of Coca-Cola from the above mentioned Coca-Cola machine and took the Coca-Cola to the girls' room where she had eaten her lunch and thereafter drank about one-half of the contents of the bottle. She noticed that the Coca-Cola had an odd taste and mentioned this to the other girls who were present in the room. She also noticed something floating in the bottle and said to the girls, "There's something in this bottle." She then went to the washstand and poured out the remainder of the contents of the bottle and discovered that it contained a large open rusty safety pin and some other debris. She testified she did not know what the other debris was. Plaintiff was asked if it was after she saw something in the bottle that she became sick. She answered: "As I said, it tasted odd, and I was getting sick as I was drinking it, and then I proceeded to throw up as I saw it." Plaintiff poured the remainder of the contents of the bottle into the washstand and immediately began to vomit on seeing what was in it. She then went to the pathologist who was present at the Laboratory who told her that he thought she would be all right since she had vomited any poison out of her stomach; that although she was nauseated she continued to work that afternoon because her employer was short of help at that time; that after work that day she went home and lay down and remained at home that night; that she went to work the next morning but was unable to consume any liquid or food substance for a day and a half thereafter; that she had a nauseated feeling for about two days; that it was about a whole week before she was able to enjoy her meals.
Plaintiff further testified that she reported the incident to defendant soon after she became ill; that a Mr. Sullivan came to see her the day after the incident; that Mr. Sullivan questioned her about the incident and asked to be permitted to take the bottle in question with him, but she refused to permit him to do so; that at a later date she gave a statement to a representative of defendant about the incident and showed the representative the bottle; that she had turned the bottle over to her lawyer. Plaintiff identified a Coca-Cola bottle containing a discolored safety pin as the bottle and pin involved in the incident in question. They were introduced in evidence as plaintiff's Exhibit A. Plaintiff stated that the bottle and safety pin had been in her lawyer's possession since the day after the incident; that some black sediment which was present in the bottle at the time of the trial was in the bottle at the time she drank the Coca-Cola; that she did not touch the contents of the bottle from the time she took it from the Coca-Cola machine, opened it and examined its contents, and that she had stated these facts to Mr. Sullivan when he questioned her on the day after the incident.
On cross-examination plaintiff stated that while she was drinking the Coca-Cola she noticed an odd taste and began to feel sick; that she vomited immediately after pouring the contents out of the bottle and seeing what was in it; that all of this occurred during her lunch hour which was between 12 and 1 P.M. on the day in question; that she returned to work at 1 P.M. and went home on a bus that evening; that she went to work the following day at the regular time and worked the entire day from 8:30 to 5:00; that she didn't have any more vomiting spells other than on the one occasion and that she did not lose any time from work; that she did not receive any medical treatment; that she had never previously eaten anything that made her sick; that her feeling of sickness and nausea began while she was consuming the Coca-Cola and before she saw what was in the bottle.
Mrs. Paul Colmo testified as a witness for plaintiff that she was employed at the Lederle Laboratories and was with plaintiff during the lunch hour on the day in question and saw plaintiff purchase the bottle of Coca-Cola from the Coca-Cola machine; that the bottle was capped and sealed when plaintiff removed it from the machine and she saw plaintiff open the bottle with the opener on the machine; that she saw plaintiff drink from the bottle and did not see plaintiff insert anything into the bottle; that while she was in the girls' restroom with plaintiff she heard plaintiff state: "This coke tastes so funny to me" and that "there's something in here"; that plaintiff then went into another part of the room which was separated by a partition, but that the witness heard plaintiff vomiting and saw her lean over the wash bowl; that although she saw something in the bottle when plaintiff held the bottle up to the light, the witness never examined the bottle nor its contents before plaintiff poured the contents into the wash basin; that plaintiff appeared upset after she had vomited.
William Ebert, Assistant Production Manager for defendant, testified as a witness for plaintiff. He gave a detailed description of the manner and method used by defendant in conducting its business. He stated that empty bottles are returned to the basement of defendant's plant; that an inspection is made of these bottles to remove any stray bottles, straws and broken bottles: that after such inspection the bottles fit for use are put in a bottle washing machine by three men; that as each bottle enters the machine it receives two jets of water; that then it is submerged into three successive caustic solutions; that the first solution is 3% with 110 degrees Fahrenheit; that the second solution is 3 1/2% with 150 degrees Fahrenheit; that the third is 3% with 150 degrees Fahrenheit; that the bottle then passes through a hydra-rinse and is treated four times with a caustic solution; that then it passes through a clear water compartment which removes most of the caustic solution; that then, after a jet of clear water, the bottle is thoroughly brushed and washed with clear water; that it then is given two final rinses at 60 pounds of water and 60 pounds of air; that two men are always present to inspect the bottles as they leave the machine on a conveyor; that from the washing machine the bottle travels some 8 feet to the filing machine where the syrup and water, already mixed, is put into the bottle by pressure; that the water which is mixed with the syrup is especially treated in a chlorine solution which renders the water bacteria free; that the syrup used is purchased from the Coca-Cola Syrup Company which is defendant's parent company; that the syrup is delivered to defendant in tightly sealed stainless steel drums from which the syrup is piped to the filling machine; that the pipes are stainless steel and the syrup is filtered twice through 60 mesh stainless steel screen before it reaches the filler machine; that in the quality control laboratory, the quality of the drink is checked daily and hourly.
Defendant introduced in evidence a number of photographs of the bottling equipment and the interior of defendant's plant.
Mr. Ebert stated that in his opinion the dark substance which was in the bottom of the Coca-Cola bottle in question was dry Coca-Cola syrup.
On cross-examination the witness testified that he had never seen any object like an open safety pin in a Coca-Cola bottle before; that a filled bottle might possibly remain in defendant's warehouse for one week before it was delivered to a customer; that he did not know anything about vending machines which were owned and operated by defendant, but expressed the opinion that defendant exercised complete control and custody over the vending machine at the Lederle Laboratories. He also stated that no third person could insert a bottle in the machine; that no persons other than an employee of defendant would have occasion to touch the bottle from the time it left the plant until it was put in the vending machine; that defendant tried to inspect each bottle as much as possible but the witness thought there was the possibility of human error.
Defendant contends that plaintiff's evidence totally failed to substantiate her theory that the presence of the safety pin and "debris of some sort" rendered the contents of the bottle impure and that the impure contents so poisoned her that she became ill. We cannot agree with defendant's view of the evidence.
It is conceded by defendant that a consumer of such a beverage as Coca-Cola may recover for a breach of an implied warranty but defendant argues that in this state in each case wherein recovery was allowed the plaintiff's evidence developed two factors which substantially proved that his illness resulted from the consumption of an impure beverage which poisoned his system. First, medical testimony showing that the plaintiff's illness was one which resulted from actual consumption of an impure substance and second, a showing of physical injury manifested by an illness of a substantial nature and duration. Defendant asserts that plaintiff's evidence in the case at bar shows neither of these factors. Defendant insists that even though plaintiff testified that the contents of the bottle tasted "odd" and that the bottle contained a rusty safety pin and "debris of some sort," such evidence did not prove or tend to prove that the contents of the bottle poisoned plaintiff.
Moore v. Natchitoches Coca-Cola Bottling Co., La.App., 32 So.2d 347, is cited by defendant in support of its contentions, but we find nothing in said case that would justify us in departing from the holdings of our Missouri courts that under facts similar to the facts in the case at bar a case was made for the jury.
Defendant also cites and quotes from Coca-Cola Bottling Co. v. Wood, 197 Ark. 489, 123 S.W.2d 514 wherein the evidence showed that the plaintiff therein became nauseated and ill about ten minutes after she drank from a Coca-Cola bottle which contained a rusty and corroded bottle cap. In that case the court held that no one could tell from the evidence whether there were any harmful ingredients in the contents of the bottle or not, and that the court could not assume that there were and that such was the proximate cause of plaintiff's injuries because such an assumption would be based upon speculation and conjecture. Defendant's contentions under this point in the case at bar appear to be based upon the theory that plaintiff is not entitled to recover because there was no showing of a chemical analysis of the contents of the bottle showing that the beverage was impure and no medical testimony showing that plaintiff's illness resulted from the consumption of a beverage that was impure.
We are unable to agree with defendant's contentions. We believe there was ample evidence to support a verdict for plaintiff without a chemical analysis or direct medical testimony. As we view the evidence herein, the jury could reasonably and properly find that there was a breach of warranty by defendant with respect to the contents of the bottle of Coca-Cola in question and that plaintiff directly suffered damages therefrom, and that plaintiff clearly made a case for the jury. Beyer v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 75 S.W.2d 642; Norman v. Jefferson City Coca-Cola Bottling Co., Mo.App., 211 S.W.2d 552; Nemela v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 104 S.W.2d 773. This court in Beyer v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 75 S.W.2d 642, held that a chemical analysis was not necessary to be shown to make a case for the jury where plaintiff was seeking damages for the defendant's breach of warranty. In the Beyer case plaintiff was in the act of taking a drink out of a bottle of Coca-Cola which he had just opened when he felt a strange substance press against his lips preventing the further flow of the liquid and on examining the bottle saw a foreign substance inside of it which he later discovered was a mouse. Upon discovering the foreign substance in the bottle plaintiff set the bottle down and immediately became nauseated and started vomiting.
In the case at bar plaintiff's evidence was that as she began drinking the Coca-Cola she noticed the odd taste of the beverage and while she was drinking it she began to feel ill and nauseated. It is not disputed that there was a rusty safety pin and other debris in the bottle. Hence, it is a reasonable, common sense inference, based upon substantial evidence, which the jury was authorized to draw, that such a foreign substance in a beverage such as Coca-Cola was what caused plaintiff to become sick and the fact that she did become sick and nauseated under such circumstances sufficiently shows that the beverage was not pure, harmless, wholesome and fit for human consumption, as warranted by defendant.
In Fisher v. Washington Coca-Cola Bottling Works, Inc., 66 App.D.C. 7, 84 F.2d 261, 105 A.L.R. 1034, plaintiff therein brought his suit against the defendant on the theory of res ipsa loquitur for damages. The evidence in that case showed that there was a moldy looking substance in the Coca-Cola and that the beverage had a peculiar taste and that plaintiff became nauseated and sick while drinking it. In that case the defendant contended that there was no affirmative evidence that the substance in the bottle was "harmful" to the human body. Answering that argument the court said: "the jury might properly have found in the instant case that the substance in the bottle was what made the plaintiff ill and therefore that it was harmful to the human body." Fisher v. Washington Coca-Cola Bottling Works, 66 App. D.C. 7, 84 F.2d 261, 262, 105 A.L.R. 1034. Although the Fisher case, supra, was not tried as one for breach of warranty, nevertheless the reasoning of the court in relation to the evidence which warranted a reasonable inference by the jury that it was the substance in the bottle that made plaintiff ill and was, therefore, harmful is equally applicable to the case at bar. We are unable to perceive any other reasonable inference that could be drawn from the evidence herein than that the presence of the rusty safety pin and the other "debris" in the contents of the bottle rendered the beverage impure and harmful and that it caused plaintiff's sickness.
We do not believe it was necessary in this case for plaintiff to have produced a chemical analysis of the contents of the bottle nor medical testimony to make a case for the jury where, as here, ample evidence was produced from which the simple, reasonable and common sense inference could be drawn by the jury that plaintiff became sick and nauseated and was thereby injured, even though not seriously, as the direct result of drinking the Coca-Cola in question. Our Supreme Court has held that it is no objection to a jury's verdict that some material element of a plaintiff's case or a defendant's defense is not proved by definite, affirmative, direct testimony but is found by the verdict by reasoning or inferring from a fact or testimony or even from circumstantial evidence that a certain required thing or fact existed or was true. Van Brock v. First National Bank in St. Louis, 349 Mo. 425, 161 S.W.2d 258.
Defendant contends that plaintiff's evidence that she became ill after she observed the rusty safety pin and "debris of some sort" in the bottle was not sufficient to prove that her illness resulted from the consumption of an impure beverage which poisoned her system; that on the contrary plaintiff's evidence affirmatively showed that the cause of her illness was an emotional and mental disturbance which resulted when she viewed the contents of the bottle. The only difficulty with this argument of defendant is that it is not supported by the evidence. We have set forth plaintiff's testimony at some length and nowhere did she say that she became ill only after discovering what was in the bottle. It is true that on cross-examination defendant's counsel sought to have her so testify but it is equally true that each time she steadfastly insisted that she noticed the odd taste of the liquid as she was drinking it and that she began to get sick and nauseated while she was drinking it. The discovery by her of the foreign substance in the bottle came after she became sick and nauseated. The cases cited on this point by defendant are not applicable because the evidence clearly does not support defendant's contention.
Defendant next contends that the court erred in giving instruction No. 4 because plaintiff if entitled to any damages could recover only nominal damages and that the sum of $200.00 is more than nominal damages. Defendant, as appellant, concedes that the presence of the safety pin in the bottle "might be considered a technical breach of the appellant's warranty for which the plaintiff is entitled to recover nominal damages." The argument of defendant on this point is based upon the assumption that plaintiff is entitled only to nominal damages. Defendant cites authorities holding that $200.00 represents substantial damages and not nominal damages, but it cites no Missouri case holding that a plaintiff presenting evidence of this character is entitled only to nominal damages. We are of the opinion that the amount of damages allowable under the evidence in this case was a matter for the jury to determine subject to the court's authority to require a remittitur if in the reasonable exercise of its discretion the court believed the verdict of the jury was excessive.
This leads us to a consideration of defendant's next point that the jury's verdict was obviously the result of bias, passion and prejudice and could not be cured by a remittitur and should be set aside. As heretofore stated, the verdict of the jury was in favor of plaintiff for $1,000.00. The trial court in the exercise of its discretion cut this verdict down to $200.00 by requiring plaintiff to remit $800.00 thereof. In the very recent case of O'Brien v. Louisville Nashville R. Co., Mo.Sup., 227 S.W.2d 690, our Supreme Court held that an excessive verdict by a jury in and of itself does not establish that the verdict was the result of passion and prejudice. The court further held in said case that in the absence of any incident occurring during the trial that would tend to prejudice the jury, the rendition by the jury of a verdict found by the trial court to be excessive and reduced by requiring a remittitur, did not establish passion and prejudice requiring a new trial. In that case a verdict for $100,000 was reduced to $30,000 by requiring remittiturs ordered by the trial court and the appellate court. In said O'Brien case the Supreme Court flatly said: "After an examination of many cases we conclude the rule in this state to be that an excessive verdict in and of itself does not establish that the verdict was the result of passion and prejudice." O'Brien v. Louisville Nashville R. Co., Mo.Sup., 227 S.W.2d 690, 693.
The record in the case at bar shows that the case was well and carefully tried by the court and by both plaintiff's and defendant's counsel and that no incident of any kind occurred that could cause bias or prejudice in any degree against defendant in the minds of the jurors. We do not regard the amount of the verdict left standing by the trial court, namely, $200.00 as damages to plaintiff for what she went through, to be so shocking as to require a retrial of the case.
Defendant's point that the court erred in giving plaintiff's instruction No. 1 is based upon defendant's contention that plaintiff did not make a submissible case. Since we have ruled contrary to defendant's contention on this point, it is not necessary to discuss said instruction No. 1.
We find no reversible error in the record and the judgment of the trial court should be affirmed. It is so ordered.
ANDERSON, P. J., and HUGHES, J., concur.