Armstrong v. Pepsi-Cola General Bottlers, Inc.

560 So. 2d 67, 1990 La. App. LEXIS 977, 1990 WL 48752
CourtLouisiana Court of Appeal
DecidedApril 11, 1990
DocketNo. 89-CA-775
StatusPublished

This text of 560 So. 2d 67 (Armstrong v. Pepsi-Cola General Bottlers, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armstrong v. Pepsi-Cola General Bottlers, Inc., 560 So. 2d 67, 1990 La. App. LEXIS 977, 1990 WL 48752 (La. Ct. App. 1990).

Opinion

WICKER, Judge.

Pepsi-Cola General Bottlers, Inc. and Gulf South Beverages, Inc. appeal a judgment in favor of the plaintiff, Mosel Armstrong. The issues are whether or not Pepsi-Cola and Gulf South negligently allowed glass to enter a bottle of Pepsi, injuring Armstrong, and whether or not the damage award of $3,500.00 was excessive. We affirm.

Armstrong purchased a ten-ounce bottle of Pepsi at a Charter Marketing Company convenience store. He opened and drank the Pepsi, testimony varying as to whether he drank it inside or outside the store. He then showed Charter’s employees that pieces of glass were in the bottom of the bottle. Armstrong sued Pepsi-Cola and Charter, and he later added Gulf South. The judge dismissed Charter and found both Pepsi-Cola and Gulf South liable to Armstrong. He reasoned:

Plaintiff gives the impression that he is telling a large, whopping story. However, in my humble opinion, plaintiff is expressing himself according to his station in life. It should be borne in mind that Armstrong does not have the formal education which we have had, and it is hard to judge him on our set standards. Mr. Armstrong does not have the innate ability to express himself in the proper manner. Cross examination of him is devastating. It really is not his fault. This court, in order to do justice, must extract that which is real from that which is unreal. Armstrong really did not make a good witness. However, he does have a point, and that point is he drank a drink with glass in the bottle, and a piece of the glass fragment passed through is [sic] digestive system.
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There is no doubt in my mind after hearing all which I have heard from the witness stand and piecing together all matters that:
1. Plaintiff purchased the drink;
2. Plaintiff drank the drink;
Plaintiff observed, along with a Charter employee, a foreign substance at the bottom of the Pepsi;
The police were called;
Plaintiff did not see a doctor immediately but did subsequently see a doctor;
6. All doctors found no objective symptoms of damage;
7. Cut glass entered his digestive system and subsequently was expelled;
8. The foregoing traumatic experience is worth something.

We have reviewed the testimony and documentary evidence and do not believe that the judge was clearly wrong in his decision. The testimony and some of the documents at times conflicted, and the testimony of Armstrong and the other witnesses differed in some respects.

Armstrong testified that he bought and paid for the Pepsi, opened it, started drinking it, and immediately realized he had swallowed something in the bottle. He coughed and spit up all over the floor in an attempt to bring up whatever he had swallowed. He discovered pieces of glass in the bottom of the almost-empty bottle; and he showed them to the cashier, Joanne Smith. When Charter’s manager wanted to confiscate the bottle as evidence, Armstrong returned with the police. Sgt. Malcolm Vana-cor came and advised Charter that, since Armstrong had paid for the Pepsi, it was his right to keep the bottle. Armstrong asked Vanacor to keep the Pepsi bottle for him.

[69]*69Armstrong said the next day he passed glass in his stool, and the glass was entered into evidence. He also had slight rectal bleeding. He went to the emergency room the day after the incident. After that, he saw one doctor once or twice and the other about seven times; however, he didn’t know one doctor from the other and couldn’t say which was which. He had testified in his previous deposition to having seen one of the doctors every other day for eight months and if the doctor testified differently, the doctor was mistaken. He had papers to prove the extent of his doctor visits, but he gave them to his attorney. He still had some pain in his throat, but he was not under the care of any doctor because he could not afford it. He took Pepto-Bismol for the relief of his symptoms.

Armstrong is an illiterate, sixty-four years old at the time of the trial. We have paraphrased his testimony to make it comprehensible. However, his actual testimony was frequently confused and almost always inarticulate. The judge took over questioning Armstrong several times when it was clear Armstrong did not understand the questions and/or was not able to answer the questions. The transcript indicates that some of his testimony was inaudible, and at one point the judge referred to it as gibberish.

Joanne Smith was subpoenaed but twice failed to appear to testify. The judge issued an attachment for her appearance, and the parties were eventually able to take her deposition and admit it into evidence. She testified that she was a cashier at the time of the incident. Armstrong came into the store and bought a Pepsi. He took it outside to drink, within her sight. At one point he left and came back, but she could not recall whether it was before or after he complained about the glass. He brought in the bottle, complained that he had swallowed glass and spit up blood, and showed her the pieces of glass in the bottom. She saw the glass, and she noticed that the rim of the bottle was chipped or broken. However, in an earlier statement, she noted that the bottle was not broken or chipped. She did not see him spit up inside the store, but she couldn’t be sure what had happened outside. Armstrong returned after leaving with Sgt. Vanacor, who made her return the bottle to Armstrong. Armstrong told her he was going to the hospital and asked if she would be responsible for the bill. At one point, either the doctor or the hospital called to inquire about responsibility for the bill. Since the incident, Armstrong asked her if she would be his witness if there was a trial.

Sgt. Vanacor testified that he was called to Charter by Armstrong and that he saw the glass in the bottom of the bottle. However, he did not see any broken area on the top of the bottle. He had held the bottle as evidence for a while, but it had been accidentally thrown away.

The medical records indicate the following treatment and/or consultations:

April 5, 1986 — St. Charles Hospital Emergency Room for complaint of swallowing and passing glass; denies rectal bleeding; declines rectal exam April 25, 1986 — St. Charles Hospital Emergency Room for complaint of pain in abdomen, left neck, and radiating down left arm, and a feeling of foreign body in left throat; throat normal with no abrasions; recommended Maalox and referred to ear, nose, and throat May 2, 1986 — Dr. Hart examined and recommended fiberoptic exam May 23, 1986 — South Louisiana Medical Center Emergency Room for complaint of something in throat; X-ray revealed no foreign body; referred to surgery clinic and given naprosyn[?]
June 3, 1986 — South Louisiana Medical Center surgery clinic for complaint of foreign body in left side of throat; reported having passed glass June 17, 1986 — South Louisiana Medical Center surgery clinic; endoscopy performed; normal; referred to ear, nose, and throat
August 22, 1986 — South Louisiana Medical Center for complaint of foreign body in left hypopharynx; had previous laryn-[70]*70goscopy; symptoms improved; normal exam; return in 2 months

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560 So. 2d 67, 1990 La. App. LEXIS 977, 1990 WL 48752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-v-pepsi-cola-general-bottlers-inc-lactapp-1990.