Opinion
No. 43697.
December 6, 1965.
1. Damages — food — bread containing glass — liability of manufacturer sustained.
There was sufficient evidence from which jury could find that there had been glass in bread manufactured and distributed by defendant, and that plaintiff customer had sustained an injury as result of having swallowed a particle of glass when she took a bite from the bread.
2. Damages — same — same — damages grossly excessive.
Award of $10,000 damages to woman for injuries sustained when she swallowed a piece of glass contained in bread manufactured by defendant was so grossly excessive as to evince passion and prejudice on part of jury, requiring a new trial on question of damages to customer who had fully recovered.
3. Damages — same — same — evidence to be excluded on retrial.
Upon retrial of issue of damages to plaintiff who had sustained injury from swallowing piece of glass while eating bread, all evidence relating to hospitalization and surgery for matters unconnected with injury for which she brought suit should be excluded, as the medical evidence was so interwoven with similar evidence as to be peculiarly prejudicial and confusing to jury.
4. Damages — hospital and medical bills — maximum amount must be set out in declaration.
Maximum amount of the hospital and medical bill should have been stated in declaration which contained a demand for payment of hospital, doctor and medical expenses, without amount thereof being stated.
5. Damages — same — where maximum amount not set out in declaration — evidence, admitted when.
Where no motion for bill of particulars was made as to maximum amount of hospital and medical bills for which a demand was contained in declaration, it was not error to receive evidence of such expenses if specifically identified and proved.
Headnotes as approved by Smith, J.
APPEAL from the Circuit Court of Lauderdale County; ARLO TEMPLE, J.
Snow, Covington, Shows Watts, Meridian, for appellant.
I. Appellant was entitled to directed verdict. Coa-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305; Salazar v. Chapultopec Grocery, 137 Cal. 198, 290 P.2d 8; 36A C.J.S., Sec. 59 p. 913.
II. Medical bills for hospital and medical treatment were improperly admitted over objection.
III. There was no connection between the glass injury and the hysterectomy, the goiter and the ulcer.
IV. The overwhelming weight of the evidence in this case was with the appellant.
V. The instruction set forth at Page 243 of the record is erroneous and misleading.
VI. The verdict in this case is excessive. Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; Coca-Cola Bottling Works v. Lyons, supra; Coca-Cola Bottling Works v. Tate, 193 Miss. 883, 11 So.2d 695; Coca-Cola Bottling Works of Columbus v. Petty, 190 Miss. 631, 200 So. 128; Coca-Cola Bottling Works of Greenwood v. Simpson, 158 Miss. 390, 130 So. 479, 72 A.L.R. 143; Meridian Coca-Cola Bottling Co. v. Ilges, 187 Miss. 27, 191 So. 807; Wilson v. Rich, 163 Miss. 403, 141 So. 287.
Williamson, Pigford Hendricks, Meridian, for appellee.
I. In the lower court, appellee proved by a preponderance of the evidence in this case the following facts: One, appellee purchased a loaf of bread manufactured by Hardin's Bakeries; two, the bread was purchased in the original package which was unbroken at the time and until the bread was consumed; three, there was glass in the loaf of bread; four, appellee was injured because of the glass in the loaf of bread and suffered damages.
II. The declaration properly stated the correct rule of law as to the liability of a manufacturer for food, or on food sold to the general public in the original container for consumption.
III. The appellee was correct in pleading in this case that she would rely upon the doctrine of res ipsa loquitur.
IV. The damages rendered by the verdict of the jury were not excessive.
V. No prejudicial testimony was admitted in the lower court.
VI. Appellee proved by a preponderance of the evidence the essential elements of her case.
VII. The instructions given to appellee and appellant were correct.
Collation of authorities: Baudry v. Faulkner Concrete Pipe Co., 244 Miss. 669, 145 So.2d 468; Bufkin v. Grisham, 157 Miss. 746, 128 So. 563; C R Stores v. Scarborough, 189 Miss. 872, 196 So. 650; Coca-Cola Bottling Works of Greenwood v. Simpson, 158 Miss. 390, 130 So. 479, 72 A.L.R. 143; Curtiss Candy Co. v. Johnson, 163 Miss. 426, 141 So. 762; Gee v. Rimmer, 188 Miss. 460, 195 So. 342; Gulf Refining Co. v. Myrick, 220 Miss. 429, 71 So.2d 217; Jackson Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791; Kelly v. State, 239 Miss. 705, 124 So.2d 844; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726; Laurel Coca-Cola Bottling Co. v. Hankins, 222 Miss. 297, 75 So.2d 731; Magnolia Miss Dress Co. v. Zorn, 204 Miss. 1, 36 So.2d 795; Mississippi Power Light Co. v. Thomas, 206 Miss. 201, 39 So.2d 759, 40 So.2d 597; Montgomery Ward Co. v. Nickens, 203 Miss. 195, 33 So.2d 815; Ramsey v. Price, 249 Miss. 192, 161 So.2d 778; Rainwater v. Hattiesburg Coca-Cola Bottling Co., 131 Miss. 315, 95 So. 444; Saenger Theatres Corp. v. Herndon, 180 Miss. 791, 178 So. 86; St. Louis-S.F.R. Co. v. Dysen, 207 Miss. 639, 43 So.2d 95; Sandifer Oil Co. v. Dew, 220 Miss. 609, 71 So.2d 752; Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478; Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627; Skehan v. Davidson Co., 164 Miss. 518, 145 So. 247; Virginia-Carolina Chemical Co. v. Jefferson, 186 Miss. 861, 192 So. 306; Sec. 451, Code 1942.
The appellee, Mrs. Cecil Kelly, sued appellant, Hardin's Bakeries, Inc., in the Circuit Court of Lauderdale County demanding damages for personal injuries claimed to have been sustained as the result of eating bread manufactured and distributed by appellant which she alleged contained bits of glass. A jury returned a verdict for plaintiff in the amount of $10,000.00, and judgment was entered accordingly. From that judgment, this appeal has been prosecuted.
The evidence adduced in support of Mrs. Kelly's claim is to the effect that she took one bite of a peanut butter sandwich prepared by her daughter from bread manufactured and distributed by Hardin's which contained glass, and that she was injured when a piece of this glass lodged in her throat. She does not seem to have noticed the glass in the bread immediately but desisted from eating the sandwich after the first bite upon being told by her daughter that glass had been discovered in the remainder of the loaf from which it had been prepared.
It appears that Mrs. Kelly had the misfortune to suffer several ailments which required extensive and costly surgery and hospitalization during the period covered by the evidence and which followed the above incident. She was in and out of hospitals and under the care of doctors for several months. By far the greater part of this was for conditions wholly unrelated to her claim that she swallowed the bit of glass which lodged in her throat. Among the conditions for which she was hospitalized and operated upon and for which the defendant was in no way responsible were goiter (which she had for thirteen years and which was removed by surgery), a hysterectomy, and an operation for adhesions or rupture. The jury was permitted to hear evidence as to these things and as to the expenses associated with them. The court recognized that these matters were irrelevant to any issue in the case and were likely to mislead the jury and at the conclusion of the trial the jury was instructed that under no circumstances was plaintiff entitled to recover any medical expenses or doctors' bills resulting from the goiter operation, the hysterectomy operation, or for the operation for adhesions or rupture, as there was no connection between such ailments and the swallowing of glass alleged to have been in the bread.
We do not imply that an error in the admission of prejudicial evidence may never be cured by proper instructions. But under the peculiar circumstances of this case, where the medical evidence relating to the injury charged against the defendant was so interwoven with similar evidence touching wholly unrelated surgery and hospitalization as to be virtually inextricable, it is doubtful that instructions were wholly effective in undoing the resulting harm.
The surgery required as a result of swallowing the glass contained in the bread consisted of an exploration of appellee's throat by means of a light and by having appellee swallow cotton in order to locate any foreign body that might have become embedded in the throat wall. Her throat was then X-rayed and cotton fibers were allegedly shown by the picture to have been caught on some protruding sharp object in the throat wall. This exploratory "operation" was followed by an excision of a small piece of tissue from the inside of plaintiff's throat. The doctor said this contained some hard substance which was not further identified. The jury apparently inferred from the circumstantial evidence before it that this hard substance was a bit of glass which had been in the bread. The evidence showed that Mrs. Kelly had fully recovered at the time of the trial.
Appellant made a motion for a new trial upon several grounds, one of which was that the amount of verdict was so grossly excessive and contrary to the proof as to evince bias, passion and prejudice on the part of the jury. We have concluded that the motion should have been sustained upon this ground and a new trial granted upon the issue of damages alone.
In Coca Cola Bottling Works, Inc. v. Tate, 193 Miss. 883, 11 So.2d 695 (1943), there was a verdict for $2500.00 for the plaintiff who claimed that there was glass in a Coca Cola which she drank. This verdict was reduced on appeal to $1250.00.
The Court cited Coca Cola Bottling Works, Inc. v. Petty, 190 Miss. 631, 200 So. 128 (1941); Meridian Coca Cola Bottling Company v. Illges, 187 Miss. 27, 191 So. 817 (1939); Biedhenharn Candy Company v. Moore, 184 Miss. 721, 186 So. 628 (1938); Wilson v. Rich, 163 Miss. 403, 141 So. 287 (1932); Coca Cola Bottling Works, Inc. v. Simpson, 158 Miss. 390, 130 So. 479, 72 A.L.R. 143 (1930); Coca Cola Bottling Works, Inc. v. Lyons, 145 Miss. 876, 111 So. 305 (1927).
(Hn 1) The case is a close one upon the issue of liability. But accepting as true all that the evidence proved or tended to prove and all reasonable inferences that may be drawn therefrom favorable to appellee's contentions, the jury was warranted in finding that there was glass in bread manufactured and distributed by appellant, and that appellee sustained an injury as the result of having swallowed a particle of glass when she took a bite from a sandwich made from it. (Hn 2) However, we think the amount of the verdict was so grossly excessive as to evince passion and prejudice on the part of the jury and that there should be a new trial upon the question of damages alone.
(Hn 3) Upon retrial of that issue, all evidence relating to hospitalization and surgery for the goiter, hysterectomy, adhesions or rupture and to the expenses and pain and suffering and loss of time or earnings connected therewith should be excluded. This evidence is peculiarly prejudicial and could only serve to confuse the jury and to excite undue sympathy for the plaintiff. It has no relation to any issue in the case and no reference should be made to it in the presence of the jury. (Hn 4) The declaration contains a demand for hospital, doctors, and medical expenses in the amount of "$ ____" alleged to have been incurred by plaintiff as the direct result of swallowing the piece of glass. The maximum amount of these bills should have been stated in the declaration. Chapman v. Powers, 150 Miss. 687, 116 So. 609 (1928).
(Hn 5) No motion for a bill of particulars was made, however, and it was not error to receive evidence of such expenses if specifically identified and proved as required by the rules of evidence, separate and distinct from other medical and doctors' bills which resulted from hospitalization, surgery and medication unrelated to the injury for which Hardin's was responsible.
The case is affirmed as to liability, and is reversed and remanded for a new trial as to damages alone.
Affirmed as to liability, and reversed and remanded for a new trial upon the question of damages alone.
Lee, C.J., and Rodgers, Jones and Inzer, JJ., concur.