Jackson Coca-Cola Bottling Co. v. Grubbs

Counsel

Watkins, Watkins Eager, for appellant. The trial court erred in refusing to give the directed instruction requested by appellants at the conclusion of This court has held in cases involving liability of the manufacturer of soft drinks, such as coca-cola, to the ultimate consumer, that there is an implied warranty on the part of the manufacturer that the beverage is wholesome and fit for human consumption and that a failure to comply therewith constitutes a cause of action on the part of the consumer. We have no objection to this announcement of the law, but in the case at bar there was not one iota of competent testimony introduced which in anywise connected these appellants with the manufacture or distribution of this particular coca-cola drunk by appellee. The court will bear in mind that it is not sufficient to show that the appellants merely distributed the bottle of coca-cola in question by truck to Simpson county, because this court along with the great majority of other courts of other states have held that no liability would exist under such circumstances on the part of a distributor. As a matter of fact, no competent evidence appears in the record to show that these appellants, or either of them, distributed or even sold or delivered the particular bottle of coca-cola in question. Nor is there the slightest competent testimony which tends to show that these appellants, or either of them, manufactured or bottled the particular bottle of coca-cola purchased by the husband of appellee and by her drunk. In order to make out a case, admitting for the sake of argument, that jurisdiction had been properly obtained as to these appellants, it was necessary for appellee to show by competent testimony the following facts: (a) That the particular bottle of coca-cola which she drank was manufactured, bottled and distributed to the retail dealer, Burnham, by both or one of appellants; (b) That this particular bottle of coca-cola from the time that it was delivered by appellants, or either of them, to the retail dealer, Burnham, and the time that appellee's husband purchased said bottle of coca-cola that the contents thereof were not in any manner dis- turbed, nor the cap removed from said bottle, or any opportunity afforded whereby foreign matter could have been allowed or permitted to get into said bottle of coca-cola after it left the hands of appellants and before it was sold to and delivered to appellee; (c) That appellee drank the contents of said bottle and received into her system glass resulting in pain, suffering and injury to herself. Watkins, Watkins Eager, in reply, for appellant. Counsel for appellee seems to proceed on the theory with utterly no proof to support it that the evidence shows that either P.L. Borden or the Jackson Coca-Cola Bottling Company manufactured the particular bottle of coca-cola in question and not only manufactured it but delivered it in the same condition as it was when received by appellee's husband. In appellee's brief it is stated, "Certainly, somebody is responsible to this plaintiff for her injury. . . ." We thoroughly agree with counsel, but the trouble is that there is utterly no proof to place the responsibility in this case. Nowhere in the record is it shown by competent evidence that this bottle of coca-cola which appellee drank was manufactured by either of these appellants. All that is shown at best is that the bottle had stamped on it the lettering "Property of P.L. Borden, Jackson, Mississippi." This, we submit, in the light of the proof which shows that the cap can be easily removed from the bottle and refilled at pleasure, and the fact that other coca-cola plants were located at other points just as near Simpson county as is Jackson, is wholly insufficient to make out a case against either of these appellants. And the very important thing to consider and bear in mind is that admitting for the sake of argument that the coca-cola was manufactured by these appellants, yet, it was incumbent upon appellee to go further and show that the alleged glass in the bottom of the bottle of coca-cola was placed therein by appellants or contained in the bottle at the time appellants sold it. Argued orally by P.H. Eager, for appellant, and R.C. Russell, for appellee.