95 So. 444 | Miss. | 1922
delivered the opinion of the court.
The appellee is a manufacturing company engaged in bottling soft drinks, among which is one called “orange crush.” The appellant’s evidence is to the effect that he purchased a bottle of orange crush, bottled by the appellee from a retail dealer, drank it, and then for the first time discovered that it contained several dead flies and other insects, because of which he was made sick, resulting in damage to him. There was a verdict and judgment for the appellee, defendant in the court below.
At the request of the appellant, the court below requested the jury to find for him in the event he was made sick by drinking a bottle of the appellee’s orange crush, into which the dead flies and other insects were allowed to get at the appellee’s factory. At the request of the appellee, the jury were instructed to find for the appellee, unless it appeared from the evidence that it “was negligent or careless in permitting the flies to be in the bottle, if they were in it,” and the granting of this instruction is assigned by the appellant for error.
“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
The basis of the appellee’s liability in the instruction granted by the court below to the appellant is an implied Avarranty, and the basis of its liability in the instruction granted to the appellee is negligence. Both of these instructions cannot be right. The case that must rule here is Jackson Coca-Cola Bottling Co. v. Chapman, 106 Miss. 864, 64 So. 791. The appellee there, Avho Avas the plaintiff in the court below, recovered from the appellant damages alleged to have been caused him by drinking a beverage bottled by the appellant and purchased by the appellee from a retail dealer. One of the appellant’s complaints was that the court below charged the jury, at the request of the appellee, that if they believed from the evidence — “that the defendant company placed upon the market ‘Coca-Cola’ for sale, and that plaintiff, Harry Chapman, purchased a bottle from G. H. Cameron, a retail merchant, and that said bottle of Coca-Cola contained in it a dead and decomposed mouse, and that said mouse was bottled up in said bottle by said defendant company, and that plaintiff took several drinks therefrom before discovering the presence of the mouse and that by reason thereof plaintiff Avas rendered sick and nauseated and damaged thereby,” etc. .
In affirming the case and thereby approving this instruction, the court quoted with approval from the opinion in Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152, 1 L. R. A. (N. S.) 1178, 110 Am. St. Rep. 157, that a bottling company — “is under a legal duty to see to it that in the process of bottling no foreign substance shall be mixed with the beverage Avhich, if taken into the human stomach, will be injurious.”
The cases dealing with this question were reviewed by the supreme court of Iowa in Davis v. Van Camp Packing Co., 189 Iowa, 775, 176 N. W. 382, 17 A. L. R. 649, and will be found collated in case notes in 19 L. R. A. (N. S.) 923, 48 L. R. A. (N. S.) 213, and L. R. A. 1916B, 879.
Among the cases holding that the ground of liability is that of an implied warranty are Catani v. Swift, 251 Pa. 52, 95 Atl. 931, L. R. A. 1917B, 1272, Parks v. Yost Pie Co., 93 Kan. 334, 144 Pac. 202, L. R A. 1915C, 179, Mazetti v. Armour, 75 Wash. 622, 135 Pac. 633, 48 L. R. A. (N. S. 213, Ann. Cas. 1915C, 140, Davis v. Van Camp Packing Co., 189 Iowa, 775, 176 N. W. 382, 17 A. L. R. 649.
It follows from the foregoing views that the court below erred in instructing the jury to find for the appellee, unless they believed from the evidence that it “was negligent or careless in permitting the flies to be in the bottle.”
Reversed and remanded.