373 Pa. 614 | Pa. | 1953
Opinion by
The plaintiff in this ease became sick soon after drinking some of the contents of a bottle of Coca-Cola, manufactured, bottled and sold by the defendant. He brought this action in assumpsit claiming that defendant breached its implied warranty that the Coca-Cola was fit for human consumption in that it contained hydrochloric acid which caused injury and damages to the plaintiff. A jury awarded plaintiff §6,500. This appeal is from the judgment entered in favor of the plaintiff following the lower court’s dismissal of defendant’s motion for new trial. A motion for judgment non obstante veredicto in the lower court was not pressed in the lower court or here.
Ealph Caskie, the plaintiff, was a police officer of the City of McKeesport. He testified that on June 29, 1948 he purchased a bottle of Coca-Cola from an enclosed dispensing machine in a police station as he was about to report on duty around 4 o’clock in the afternoon. After he had drunk about one-half of the bottle, he retched, and upon taking the bottle from his mouth noticed that it had a smell which he likened to that of brake fluid. Other police officers who were nearby testified that they noticed the unusual odor. Plaintiff testified that he went to the defendant’s plant which was not far distant and before arriving there vomited five times; that he gave some of the contents of the bottle to a company employe who turned it over to the plant manager, and was directed to see a Dr. Hutchison whose office was across the street
Defendant admitted that the Coca-Cola, when plaintiff left it at the plant, did have an abnormal odor; that it received a little of the contents of the bottle but did not analyze it chemically. Defendant’s witnesses explained the manner in which Coca-Cola was bottled at the plant; that hydrochloric acid was not used in any way in the bottling process at the time of the occurrence, although it had been used in the plant in the latter part of 1946 or early part of 1947 in connection with descaling the company’s bottle washer; that it was kept in a different portion of the plant, segregated from the bottling process. The bottle with its remaining content was retained by the plaintiff and delivered on July 9, 1948 to a Dr. Schiller, a chemist and bacteriologist, who testified that his analysis revealed the presence of .6 of 1% of hydrochloric acid in the Coca-Cola and that a Coca-Cola containing that percentage of hydrochloric acid was not fit for human consumption. Over a period of about seven months plaintiff was occasionally attended by Dr. Hutchison. He then went to a Dr. Rosen who in turn referred him to Dr. Joseph Hersh. Dr. Hersh, called
Appellant’s first contention is that the verdict was against the weight of the evidence. It is not seriously
Appellant contends that the mere descriptive statements of a sick or injured person as to the symptoms and effects of his malady are not admissible unless made to a medical attendant for the purpose of medical treatment or advice because the admissibility of a plaintiff’s history of the case is an exception to the hearsay rule, based on the likelihood that he will tell the truth when he is seeking treatment or advice in the hope of being cured. It is unnecessary to discuss the matter because we think it sufficiently appeared that the plaintiff did consult Dr. Hersh for treatment or advice and in such case unquestionably the plaintiff’s statements to the doctor relating to his condition, symptoms and feelings were admissible. See Boyle v. Philadelphia Rapid Transit Co., 286 Pa. 536, 134 A. 446. At the outset of Dr. Hersh’s testimony, whose qualifications incidentally were not challenged by appellant, he was asked, “You have had occasion to treat Mr. Caskie over the few years?”, and he answered, “Yes”. The plaintiff made four calls upon Dr. Hersh
On direct examination Dr. Hersh, after stating that the plaintiff was referred to him by Dr. Rosen, was asked, “Will you tell us the history as given to you by the patient, your diagnosis and treatment, if any?”. Counsel for defendant interposed no objection. Later in the course of the doctor’s direct examination counsel for defendant asked the court whether he could ask the doctor if he had treated the patient. Counsel for defendant did not apprise the trial judge of the reason pressed in this Court or any other reason for interrupting the direct examination with his question and he did not object to the court’s action in directing plaintiff’s counsel to proceed. Assuming that inquiry as to whether the doctor treated as well as examined the plaintiff was relevant, it was a matter which counsel for defendant could have developed upon cross-examination. This he did not endeavor to do.
Dr. Hersh gave as his opinion that as the result of the ingestion of the Coca-Cola the plaintiff suffered an emotional upset or traumatic neurosis and that his opinion was based upon the history obtained from the patient and physical examination. The only objection made by counsel for defendant in this connection was that the language of plaintiff’s complaint was not broad enough to cover traumatic neurosis or emotional upset, but the complaint averred that the “plaintiff also received a shock to his nervous system” and upon questioning by the court, the doctor testified that traumatic neurosis fell within the realm of shock to the nervous system. After giving this diag
Dr. Hersh testified in effect that the physical conditions of which plaintiff complained were the result of internal bleeding hemorrhoids which in turn were caused by gastroenteritis. Plaintiff testified he did not Suffer from- hemorrhoids prior to his drinking from the bottle of .Coca-Cola.' Counsel for defendant complains that, the doctor’s diagnosis that the patient had gastroenteritis wa.s based in part, on information received -from Dr. Rosen., Dr, ..-Hersh at- one. pla.ce.-in his- testi
Finally, in considering appellant’s complaints in regard to the foregoing matters, it is to be pointed out that counsel for the defendant at the close of his cross-examination of the doctor, invited the very opinion which he now claims the doctor was not competent to give: “Q. Doctor, is it your opinion that the internal hemorrhoids that Mr. Caskie has resulted from drinking the Coca Cola? A. In my opinion, based on the history of this patient and on the subsequent physical examinations, I feel that the patient suffered a chemically irritated gastroenteritis, and the hemorrhoids were the result thereof.”.
Since competent testimony of Dr. Hersh expressly connected the conditions complained of by plaintiff with the ingestion of the Coca-Cola, we cannot find the lower court guilty of an abuse of discretion in refusing to hold in this regard that the verdict was against the weight of the evidence.
Appellant’s second contention is that he should have been allowed to cross-examine the plaintiff as to his
Appellant’s remaining complaint is that the verdict was excessive under the credible evidence. Plaintiff had been a police officer in the City of McKeesport for 8 years preceding the trial. Prior to becoming such he had worked for a roofing company and for his father who was also in the roofing business. After joining the police force, the plaintiff testified that he continued to
Judgment affirmed.
This established a breach of the implied warranty of fitness and plaintiff did not have the burden of proving that the presence of the hydrochloric acid was due to some negligence or dereliction on the part of the defendant. See Rozumailski v. Philadelphia Coca-Cola Bottling Co., 296 Pa. 114, 145 A. 700.