HoldeN, P. J.,
delivered the opinion of the court.
The Coca-Cola Bottling Works appeals from a judgment for two thousand five hundred dollars recovered by the appellee, Mrs. Fred Lyons, as damages for personal injuries received by her on account of drinking a portion of a bottle of Coca-Cola which contained a quantity of broken glass.
ÁVe shall state only such of the facts as are necessary to an understanding of the decision of the case. The ap-pellee, Mrs. Lyons, in company with her friend, Mrs. Jackson, drove in an automobile, to the Belen Drug Store, at Belen, in front of which they parked, and ordered drinks to be brought to them. The exact testimony on this particular point is that, “We drove up in front of the drug store, and ordered cokes.” A clerk in the drug store brought two bottles of Coca-Cola to the ladies, which they proceeded to drink, and Mrs. Lyons swallowed a quantity of broken glass which was in the bottle of Coca-Cola she drank from.
The bottle of Coca-Cola in question in this case had been manufactured, bottled, sealed, and delivered to the drug store to be sold to the public in the retail trade.
The bottle was unsealed, or we may say uncapped, by the clerk in the drug store just before he delivered it to Mrs. Lyons. The above-stated testimony in the record is undisputed.
"When the two ladies drove up and stopped in front of the drug store, Mrs. Jackson was the one who ordered the drinks, and she also paid for them; but the drinks were ordered for both of the ladies, and a bottle was delivered to each of them.
Mrs. Lyons suffered severe internal injuries on account of swallowing the broken glass in the Coca-Cola, and she testified that she suffered for many months from the effects of the glass in her stomach. There was about a tablespoonful of the broken glass in the bottle.
The recovery is based solely upon the theory that the Coca-Cola company was liable upon an implied warranty that the bottled drink was pure and wholesome, and that the fact that there was glass in the bottle when it was sealed and put upon the market for the public created liability for the injury to the one who drank it, regardless of whether the manufacturer was guilty of negligence or not. This rule is established in this state by the cases of
Coca-Cola Bottling Co.
v.
Chapman,
106 Miss. 864, 64 So. 791;
Rainwater
v.
Coca-Cola Co.,
131 Miss. 315, 95 So. 444; and
Grapico Bottling Works
v.
Ennis,
140 Miss. 502, 106 So. 97, 44 A. L. R. 124.
This being a c§.se, then, grounded upon the theory of the breach of an implied warranty, we may discard any question arising in the record with reference to the right, to recover on account of the negligence of the bottler, and proceed to ascertain whether or not recovery upon the other theory, that is, the breach of an implied warranty, can be maintained in the case. In such a case as the one before us three things only are to be ascertained, namely: (1) Was the glass in the bottle when it left the factory and was offered to the public? (2) Did the consumer have title and rightful possession of the bottle?
(3) 'Did tlie consumer receive injury from drinking the Coca-Cola with the glass in it?
The main point presented for reversal of the judgment is that, since the right of recovery depends upon the breach of an implied warranty on the part of the manufacturer that the bottled goods were pure and wholesome, there can he no recovery in the case because there was no implied warranty of the purity of the drink for the reason that there was no contractual relation between the injured party, Mrs. Lyons, and the Coca-Cola company, or the retailer, Belen Drug- Company.
It is contended that Mrs. Lyons had no contract with the clerk at the drug store who sold and delivered the Coca-Cola, for the reason that Mrs. Jackson, the lady friend with her, ordered and paid for the drinks for both of them. It is urged that, therefore, there was no contractual relation between Mrs. Lyons and the manufacturer of the Coca-Cola; that the bottle of Coca-Cola was not purchased by Mrs. Lyons, but was given to her by Mrs. Jackson; that, consequently, Mrs. Lyons cannot recover upon the theory of a breach of warranty; and that since she has made no effort to recover upon the theory of negligence the case must fail.
"We have carefully considered the question, and it appears to be a new proposition in this state, so far as we are able to discover, and wo are of opinion that the position of appellant is not maintainable, because, as we see it, the bottle of Coca-Cola which Mrs. Lyons drank was at least a gift to her by her friend, Mrs. Jackson, and since the gift carried with it the title, and the implied warranty runs with the title, Mrs. Lyons was the owner, and rightfully in possession thereof as one of the public when she drank the Coca-Cola, and that the manufacturer impliedly warranted the purity of the drink to such of the public as became the rightful possessor and owner of the Coca-Cola. Therefore,.if the drink was injurious by reason of having glass in it, the bottling company was liable to the consumer.
There is another theory which might be offered to sustain our view just expressed, and that is that the purchase of the two bottles of Coca-Cola by Mrs. Lyons and Mrs. Jackson was a joint purchase; that is, that the sale by the drug clerk was to both of these ladies, regardless of which one ordered or paid for the drinks, the idea being that it would make no difference which one of the parties ordered the drinks, they were sold to both of the ladies, and it would not be material which one paid for them, because the contract of sale had already been made between the seller and the two purchasers, and the payment for the drinks was merely the settlement of the obligation or debt incurred by both. However, we feel that it would be better to rely upon our first view than upon the latter, because it seems that the first one is the soundest.
Complaint is made by the appellant that a certain instruction granted the appellee presented an erroneous theory to the jury, in that it told the jury that—
“If the defendant 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. Lyons, purchased the said bottle of beverage in due course of trade, . . . and that the said bottle of Coca-Cola so purchased contained a quantity of small particles or pieces of glass therein, . . . and plaintiff was thereby damaged, it is your duty to return a verdict for the plaintiff. ’ ’
The evil claimed to exist in this instruction is that it told the jury they should find for the plaintiff if the defendant manufactured and placed on the market the bottle of beverage in 'question, regardless of whether the glass got into the bottle after it left the factory, or regardless of whether the method of bottling employed by the manufacturer was such that the glass could not have gotten into the bottle until after it left the manufacturer.
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HoldeN, P. J.,
delivered the opinion of the court.
The Coca-Cola Bottling Works appeals from a judgment for two thousand five hundred dollars recovered by the appellee, Mrs. Fred Lyons, as damages for personal injuries received by her on account of drinking a portion of a bottle of Coca-Cola which contained a quantity of broken glass.
ÁVe shall state only such of the facts as are necessary to an understanding of the decision of the case. The ap-pellee, Mrs. Lyons, in company with her friend, Mrs. Jackson, drove in an automobile, to the Belen Drug Store, at Belen, in front of which they parked, and ordered drinks to be brought to them. The exact testimony on this particular point is that, “We drove up in front of the drug store, and ordered cokes.” A clerk in the drug store brought two bottles of Coca-Cola to the ladies, which they proceeded to drink, and Mrs. Lyons swallowed a quantity of broken glass which was in the bottle of Coca-Cola she drank from.
The bottle of Coca-Cola in question in this case had been manufactured, bottled, sealed, and delivered to the drug store to be sold to the public in the retail trade.
The bottle was unsealed, or we may say uncapped, by the clerk in the drug store just before he delivered it to Mrs. Lyons. The above-stated testimony in the record is undisputed.
"When the two ladies drove up and stopped in front of the drug store, Mrs. Jackson was the one who ordered the drinks, and she also paid for them; but the drinks were ordered for both of the ladies, and a bottle was delivered to each of them.
Mrs. Lyons suffered severe internal injuries on account of swallowing the broken glass in the Coca-Cola, and she testified that she suffered for many months from the effects of the glass in her stomach. There was about a tablespoonful of the broken glass in the bottle.
The recovery is based solely upon the theory that the Coca-Cola company was liable upon an implied warranty that the bottled drink was pure and wholesome, and that the fact that there was glass in the bottle when it was sealed and put upon the market for the public created liability for the injury to the one who drank it, regardless of whether the manufacturer was guilty of negligence or not. This rule is established in this state by the cases of
Coca-Cola Bottling Co.
v.
Chapman,
106 Miss. 864, 64 So. 791;
Rainwater
v.
Coca-Cola Co.,
131 Miss. 315, 95 So. 444; and
Grapico Bottling Works
v.
Ennis,
140 Miss. 502, 106 So. 97, 44 A. L. R. 124.
This being a c§.se, then, grounded upon the theory of the breach of an implied warranty, we may discard any question arising in the record with reference to the right, to recover on account of the negligence of the bottler, and proceed to ascertain whether or not recovery upon the other theory, that is, the breach of an implied warranty, can be maintained in the case. In such a case as the one before us three things only are to be ascertained, namely: (1) Was the glass in the bottle when it left the factory and was offered to the public? (2) Did the consumer have title and rightful possession of the bottle?
(3) 'Did tlie consumer receive injury from drinking the Coca-Cola with the glass in it?
The main point presented for reversal of the judgment is that, since the right of recovery depends upon the breach of an implied warranty on the part of the manufacturer that the bottled goods were pure and wholesome, there can he no recovery in the case because there was no implied warranty of the purity of the drink for the reason that there was no contractual relation between the injured party, Mrs. Lyons, and the Coca-Cola company, or the retailer, Belen Drug- Company.
It is contended that Mrs. Lyons had no contract with the clerk at the drug store who sold and delivered the Coca-Cola, for the reason that Mrs. Jackson, the lady friend with her, ordered and paid for the drinks for both of them. It is urged that, therefore, there was no contractual relation between Mrs. Lyons and the manufacturer of the Coca-Cola; that the bottle of Coca-Cola was not purchased by Mrs. Lyons, but was given to her by Mrs. Jackson; that, consequently, Mrs. Lyons cannot recover upon the theory of a breach of warranty; and that since she has made no effort to recover upon the theory of negligence the case must fail.
"We have carefully considered the question, and it appears to be a new proposition in this state, so far as we are able to discover, and wo are of opinion that the position of appellant is not maintainable, because, as we see it, the bottle of Coca-Cola which Mrs. Lyons drank was at least a gift to her by her friend, Mrs. Jackson, and since the gift carried with it the title, and the implied warranty runs with the title, Mrs. Lyons was the owner, and rightfully in possession thereof as one of the public when she drank the Coca-Cola, and that the manufacturer impliedly warranted the purity of the drink to such of the public as became the rightful possessor and owner of the Coca-Cola. Therefore,.if the drink was injurious by reason of having glass in it, the bottling company was liable to the consumer.
There is another theory which might be offered to sustain our view just expressed, and that is that the purchase of the two bottles of Coca-Cola by Mrs. Lyons and Mrs. Jackson was a joint purchase; that is, that the sale by the drug clerk was to both of these ladies, regardless of which one ordered or paid for the drinks, the idea being that it would make no difference which one of the parties ordered the drinks, they were sold to both of the ladies, and it would not be material which one paid for them, because the contract of sale had already been made between the seller and the two purchasers, and the payment for the drinks was merely the settlement of the obligation or debt incurred by both. However, we feel that it would be better to rely upon our first view than upon the latter, because it seems that the first one is the soundest.
Complaint is made by the appellant that a certain instruction granted the appellee presented an erroneous theory to the jury, in that it told the jury that—
“If the defendant 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. Lyons, purchased the said bottle of beverage in due course of trade, . . . and that the said bottle of Coca-Cola so purchased contained a quantity of small particles or pieces of glass therein, . . . and plaintiff was thereby damaged, it is your duty to return a verdict for the plaintiff. ’ ’
The evil claimed to exist in this instruction is that it told the jury they should find for the plaintiff if the defendant manufactured and placed on the market the bottle of beverage in 'question, regardless of whether the glass got into the bottle after it left the factory, or regardless of whether the method of bottling employed by the manufacturer was such that the glass could not have gotten into the bottle until after it left the manufacturer.
We do not think the instruction was erroneous because it referred to the bottle of Coca-Cola in question, and, as
tlie testimony was undisputed that this bottle came from the manufacturer sealed, the glass must have been in the bottle before it left the factory. There is no conflict in the evidence on this point. Consequently the only thing left to the jury to decide was whether or not there was in fact glass in the bottle of Coca-Cola which Mrs. Lyons drank; and as the undisputed testimony shows that the glass was in the bottle of Coca-Cola which she drank, and that it damaged her, the instruction was correct, even though it may be considered equivalent to a peremptory instruction to find for the plaintiff. If the suit had been predicated on the theory of negligence instead of the theory of implied warranty, then our conclusion as to its correctness would be otherwise.
In the Chapman case, supra, the court said: “There is evidence for appellant that its system for cleansing and filling bottles is complete, and that there is watchfulness to prevent the introduction of foreign substances. Nevertheless, the little creature [mouse] was in the bottle.”
So, if the broken glass was in the bottle when it left the factory, the manufacturer is liable for the damage done the consumer, even though the method of bottling was complete and perfect.
But the appellant contends that, when the manufacturer shows that the method of bottling is so efficient and perfect that a foreign substance cannot get into a bottle, then a question of fact arises for the determination of the jury as to whether or not the foreign substance got into the bottle after it left the factory, and that the court in the case before us erred In not permitting the appellant to submit that question to the jury.
The point is interesting, but we do not decide now whether such proof on the part of the manufacturer as to the perfect and efficient method of bottling would raise a question of fact as to whether or not the foreign substance got into the bottle before or after it was sealed and placed upon the market, because the record in this
case does not show any sncli perfect and complete method of bottling as would be sufficient to raise the question as contended for by the appellant; and this being’ true, we decline to decide it at this time. The Chapman case,
supra,
seems to he different in this regard.
This record shows that there were inspectors to inspect the bottles of Coca-Cola after they were sealed and before they left the plant to see that they contained no foreign substance. The Coca-Cola company failed to put these inspectors on the witness stand to show an inspection. The persons said to he employed to inspect were not experienced or competent, so far as the evidence shows.
The testimony offered, but refused by the court, to show the sanitary condition of the bottling plant, was properly refused, because the sanitary condition might have been all right and yet the method of bottling improper or defective to the extent of permitting foreign substances to get into the bottles of Coca-Cola before they were sealed and sent out for the use of the public.
We are not prepared to say that, if the Coca-Cola company had shown that the method of bottling was perfect, and that it was impossible for the foreign substance to get into the bottle while it was being filled and sealed, then the question of fact for the decision of the jury— whether the foreign substance got into the bottle after it left the factory — would not thus be raised; but, as we have said, the point is not presented by the record, because a perfect method of bottling was not there shown, for the reasons mentioned.
The other grounds for reversal contended for hv appellant, with reference to the refusal of instructions and the adverse ruling of the court, and as to sustaining objection to certain testimony offered by the defendant, have been carefully considered, and we see no merit in the points presented. Taking the instructions as a whole, we do not think the jury .was misled as to the law in the case.
Counsel for appellant contend that the verdict of two thousand five hundred dollars is excessive. We have reviewed the testimony on this phase of the case, and while the testimony of the plaintiff may have the marks of exaggeration or honest hut unnecessary fear in it, yet it was positive, and the jury had the right to believe it. And if what the plaintiff testified to with regard to the extent of her injuries and suffering for nearly a year on account of the glass being in her stomach is true, we do not think two thousand five hundred dollars is an excessive amount to be allowed for the injury. It is true that probably she ought to have offered more expert medical testimony as to the extent of her injuries than she did; however, there are some injuries and internal troubles that the injured party is fully competent to tes- ■ tify about. In fact, the injured person here knows more about the pain she suffered from the character of injury involved than the attending physician could possibly know. The doctor, in such a case, generally knows only what the patient tells him, and he testifies as to the condition of the patient from what she has told him, and possibly some other slight corroborative symptoms.
The .jury thought that two thousand five hundred dollars was a reasonable amount for the injuries received in this case and we see no good reason for disturbing the verdict.
The judgment of the lower court is affirmed.
Affirmed.