Lead Opinion
delivered the opinion of the court.
This action, by notice of motion, was brought by Mrs. G. Krausse against the defendant, Coca-Cola Bottling Works, Inc., and E. L. Bowen, a retail grocer, to recover damages for personal injuries suffered by the plaintiff as the result of swallowing glass contained in a bottle of Coca-Cola put on the market by the defendant, Coca-Cola Bottling Works, Inc., and partially drunk by plaintiff.
The notice of motion alleges: “That heretofore to-wit on the 6th day of October, 1931, the defendants, offered .for sale for human consumption, in the city of Portsmouth, Virginia, a certain bottle soft drink, known as Coca-Cola; that on said date, the undersigned plaintiff purchased from said defendants said bottle soft drink; that said drink without the knowledge of the plaintiff, contained chips of glass; that it became and was the duty of the said defendants to use due and proper care in the making of said drink or the container to have the same free from such chipped glass; that said defendants negligently failed to use due and proper care, and knew, or could, by exercise of reasonable care, have known that said drink sold this plaintiff contained chipped glass and the said plaintiff, in drinking said drink, did swallow chipped glass, whereby and by reason whereof, she became sick and sore and suffered great pain and mental anguish and did also expend a large sum of money in and endeavoring to be healed and cured of said sicknesses to the damage of the undersigned for five thousand dollars ($5,000).”
No plea was entered by Bowen and the case was tried by a jury, on the plea of not guilty,' filed by the company, hereafter called defendant. There was a verdict for plaintiff against the company in the sum of $2,000. The court overruled the motion of defendant to set aside the verdict, but being of opinion that the verdict was excessive, over the objection of plaintiff reduced the amount of
The facts are undisputed. On October 6, 1931, plaintiff purchased a bottle of Coca-Cola from E. L. Bowen, who had previously purchased the same from defendant. The bottle of Coca-Cola, along with some groceries, was delivei'ed by an employee of Bowen to plaintiff at her home; the original cap was removed from the bottle in the presence of the employee; there was no breaking of glass in the uncapping; plaintiff, without examining it, drank from the bottle; she became strangled and began coughing; she coughed up a piece of glass which she removed from her mouth and threw away; she swallowed particles of glass which made her very sick; she consulted a physician the following day; she became very nervous; she was put on a diet by the physician; symptoms of indigestion followed the accident; she was, due to the strict diet upon which she was placed, unable to nurse her four-months-old baby; and she was under the supervision of the doctor for six or eight weeks. The fact of the finding of glass in the bottle was reported by the employee to Bowen. Particles of glass are still in the bottle.
On behalf of the defendant it was shown that the Norfolk Coca-Cola Bottling Works, Incorporated, operates a large bottling plant in the city of Norfolk. The bottled product, commonly known as Coca-Cola, is composed of Coca-Cola syrup and carbonated water. The Coca-Cola syrup is purchased by the bottling plant to which it is delivered in wooden barrels. It is doubly strained from the barrels into a closed glass-lined tank in the bottling plant. The water is filtered before it is carbonated. The empty bottles, after being inspected, aré washed and sterilized by machinery. During the process of sterilization the bottles are washed with a spray of cold water and then they pass through three compartments contain
According to the undisputed testimony of A. F. Cathey, the manager of the Norfolk plant, he has visited a number of other bottling plants, and the machinery and equipment used hy the Norfolk Coca-Cola Bottling Works, Inc., “is the best in existence,” and he has never seen any other machine “which is any nearer perfect than this one.”
During the year 1931, this plant bottled 14,000,000 bottles of Coca-Cola. It received only nine complaints of foreign substances in the bottles, and no other complaints of glass in any bottles.
As we approach the issue here we should bear in mind certain general rules.
The manufacturer of an article is not liable for injuries resulting in its use to those with whom it has no contractual relations. Tompkins v. Quaker Oats Co.,
“When the manufacturer puts the goods upon the market in this form for sale and consumption, he, in effect, represents to each purchaser that the contents of the can are suited to the purpose for which it is sold, the same as if an express representation to that effect were imprinted
In 26 C. J., p. 785, is this satisfactory statement of the-present day rule now generally applied:
“Although differing in their reasoning, it is generally agreed by the authorities that a manufacturer, packer, or bottler of foods or beverages is directly liable-to a consumer for an injury caused by the unwholesomeness or the unfitness of such articles, although purchased from a dealer or middleman and not from such manufacturer, bottler, or packer. And a manufacturer of food products has been held liable for injuries to one who did not buy the food from the manufacturer or from a dealer to whom the manufacturer had sold it, but who nevertheless had partaken of it and been injured thereby. In some of these decisions the doctrine of implied warranty-has been assigned as a ground for such liability; but in others liability is based upon the ground of negligence, the applicability of the rule of implied warranty being denied.” To the same effect see 11 R. C. L., p. 1122.
In the instant case it is to be borne in mind that the-consumer purchased from a dealer who in turn had purchased from a manufacturer. In these circumstances some courts hold that there can be no recovery on contract, that there is no privity of contract between the consumer and the manufacturer, and no implied warranty as to quality. McCaffrey v. Mossberg & Granville Mfg. Co., 23 R. I. 381,
Others hold that there is an implied warranty where the article is purchased for human consumption. Under modern methods adopted in its sale the purchaser no longer looks to the dealer for he no longer purchases in.
It is not necessary that we here adopt either view. The plaintiff in her fifteen day motion for judgment charges that the “defendants negligently failed to use due and proper care, and knew or could, by the exercise of reasonable care, have known that said drink sold this plaintiff contained chipped glass.” In other words, she bases her claim upon negligence and it was upon that theory that the case was tried, as plainly appears from all of the instructions. The jury by its verdict has said that the bottling company was negligent and to that finding we limit this inquiry.
To make the issue sharper, it may be said that the bottle out of which plaintiff drank was not tampered with after it left the bottling company, certainly the evidence does not show it. The bits of glass which did the damage must have been in it at that time. This bottle is in evidence and is not fractured.
In such circumstances some courts hold that the doctrine of res ipsa loquitur should be applied. Liggett & Myers Tobacco Co. v. Rankin,
We have held that it is an evidential presumption sometimes resorted to in the absence of evidence, hut: that it is not to be applied when evidence is at hand. Riggsby v. Tritton,
In Swenson v. Purity Baking Co. (1931)
In Nichols v. Continental Baking Co. (C. C. A.) 34 F. (2d) 141, the negligence relied upon consisted in baking a cockroach in a loaf of bread sold to a dealer who in turn sold it to Mrs. Nichols. For the plaintiff evidence of negligence was the appearance of the cockroach. The defendant appeared to have exercised a high degree of care in the preparation of his products. Here also there was a directed verdict for the defendant.
In O’Brien v. Louis K. Liggett Co.,
These facts appear in Tonsman v. Greenglass: The plaintiff bought from a neighboring grocer a loaf of bread manufactured by the defendant, labeled “Greenglass Bread, the Best Bread Baked.” In the loaf was a piece of iron on which the plaintiff broke two teeth. The process of manufacturing was described. There was a verdict for the plaintiff which was affirmed. The court refused to apply the doctrine of res ipsa loquitur, but said: “The jury reasonably could infer that it got into the bread during the process of manufacture; because it was imbedded in the center or soft part, and the discoloration of the iron and the bad odor indicated that the metal was there while the dough was soft and during the period of fermentation or other chemical change.” In other words, the presence of this bit of iron was evidence of negligence, which unexplained would have supported a verdict for the plaintiff. It did support it.
Many cases hold that negligence may be inferred. That of Minutilla v. Providence Ice Cream Co., 50 R. I. 43,
It further said: * * * “if a person is injured by a food product and he can show, by proper probative evidence, that he bought that food product in the original package in which it was put up by the maker, and that in that original package was a substance which was harmful or injurious to the human body, and he shows that to the satisfaction of the jury, then a presumption arises that the manufacturer of that food product was negligent in its manufacture,” and that this was not a case for the application of the res ipsa loquitur doctrine.
In Rozumailski v. Philadelphia Coca-Cola Bottling Co.,
To the same effect see Madden v. Great Atlantic & Pacific Tea Co., supra, where a dead mouse was found in a package of tea.
In Coca-Cola Bottling Co. v. Barksdale,
In Clark Restaurant Co. v. Rau,
In Coca-Cola Bottling Co. v. McBride,
In Culbertson v. Coca-Cola Bottling Co., 157 S. C. 352,
In Davis v. Van Camp Packing Co.,
It has been suggested that there is distinction in principle between the application of the above doctrine to unwholesome food sold for consumption and the finding of a foreign substance in food products. Such a distinction may possibly be drawn where the right of action is based upon implied warranty, but where the right of action is founded upon negligence, there can be no logical application of a different rule, whether the cause of injury be spoiled food or a foreign substance.
In Boyd v. Coca-Cola Bottling Works,
“While it is true that no particular act of negligence is shown by plaintiff, in the very nature of the case that could hot be done. It is also true that, according to the defendant’s evidence, its plant and method of manufacture are good—probably as good as any; still, it does appear that the method was not always adhered to by defendant’s employees. We think, from all the circumstances shown by the evidence, the jury could have properly inferred and found that the can of beans in question, and perhaps a batch, as one of defendant’s witnesses*120 calls it, were defective. Take the two Coca-Cola cases before cited, where a decomposed mouse was found in a sealed bottle of the fluid; the defendant’s evidence tended to show care on the part of the- company in bottling the product. In one of the cases it was shown the bottles were inspected under an electric light; that they were finally inspected after being capped or corked; that the bottles were thoroughly cleansed; that the fluid was strained into the bottle through a fine strainer, and so on. If all these precautions had been taken at the particular time when the bottles in question were filled and corked, it would seem improbable, if, indeed not impossible, that a mouse could get into the bottle. On the other hand, it would, of course, he impossible for a mouse to get into the bottle after it was corked up, and after it left the factory, and yet the mouse was in the bottle. Could the court say, as a matter of law, that the mouse did not get into the bottle during the process of manufacture? We think not. The jury, under all the circumstances, would have been justified in inferring and finding that some of the things usually done, in the bottler’s method to prevent foreign substances getting into the bottle were not done. In other words, the circumstances were such that it would be for the jury to determine which was the more reasonable probability.”
That foreign substance in food establishes a case of prima facie negligence, see Rosenwaike v. Interborough Rapid Transit Co., 175 N. Y. S. 828 (broken glass in potatoes) ; Ternay v. Ward Baking Co., 167 N. Y. S. 562 (when particles of glass were embedded in bread); Freeman v. Schults Bread Co,
We have seen that sometimes the presence of these
Sometimes it is spoken of as prima facie evidence of negligence and sometimes it is said it would justify a reasonable human being in drawing the logical inference that the glass got into the receptacle as a result of carelessness.
Foreign substances in food packages not tampered with are in themselves evidence of negligence. When that is shown, prima facie case has been made out, which, if not overborne by evidence for the defendant, is sufficient to sustain a verdict for the plaintiff. Evidence of a high degree of care may be sufficient, but such evidence is in conflict with a prima facie case, and should go to the jury. Its verdict must be sustained unless “plainly wrong.”
This issue was properly submitted in clear cut instructions. There are but two of them, one given for the plaintiff and one for the defendant. They read:
Instruction No. 2-P.—“The court instructs the jury that if they find from the evidence that the defendant, Norfolk Coca-Cola Bottling Works, Incorporated, manufactured or bottled and placed upon the market the bottle of beverage called Coca-Cola in question in this case, for human consumption, and that the plaintiff, Mrs. Krausse, purchased the said bottle of beverage in due course of trade, and that as the result of the negligence of the Norfolk Coca-Cola Bottling Works, the said bottle of Coca-Cola so purchased contained a quantity of small particles or pieces of glass, and plaintiff was thereby damaged, it is your duty to return a verdict for the plaintiff.”
Instruction No. 1-D.—“The court instructs the jury that the defendant, Norfolk Coca-Cola Bottling Works,
Other assignments of error are without merit.
The plaintiff assigns as cross-error the reduction of the jury’s verdict. Under the facts in this case the action of the trial court was fully warranted.
The judgment appealed from is without error and is affirmed.
Affirmed.
Epes, Gregory and Browning, JJ., dissenting.
Dissenting Opinion
dissenting:
I cannot agree with the conclusion reached in this case. It is held that the res ipsa loquitur doctrine does not apply, yet the finding of the glass in the bottle alone is sufficient evidence to sustain the verdict, notwithstanding the bottling company has shown by satisfactory evidence that it exercised the high degree of care required in such cases.
It is universally held that the bottling company in such cases is not an insurer, yet the effect of this decision is to hold the company as an insurer, because there has been shown no negligence against it. The mere happening of an accident in cases of this kind is not alone sufficient to establish liability upon the bottling company.