Dunn v. Charleston Coca-Cola Bottling Co.

415 S.E.2d 590, 307 S.C. 426
CourtCourt of Appeals of South Carolina
DecidedMarch 25, 1992
Docket1786
StatusPublished
Cited by6 cases

This text of 415 S.E.2d 590 (Dunn v. Charleston Coca-Cola Bottling Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunn v. Charleston Coca-Cola Bottling Co., 415 S.E.2d 590, 307 S.C. 426 (S.C. Ct. App. 1992).

Opinions

Shaw, Judge:

Respondent, Albert B. Dunn, instituted this products liability action against appellants, Charleston Coca-Cola Bottling Company and Sunbelt Coca-Cola Bottling Company, Inc., hereinafter Coke, alleging he sustained injuries after drinking a contaminated coca-cola. Coke appeals from a $165,000 jury verdict for Dunn. We affirm.

There are four issues before us on appeal: (1) whether the trial judge erred in asking the jury panel if they would be inclined to limit money damages in order to reduce insurance rates; (2) whether the trial judge erred in allowing Mr. Dunn to call a witness who was not previously identified in pretrial discovery; (3) whether the trial judge erred in failing to charge the jury as requested on strict liability; and (4) whether the trial judge erred in denying Coke’s motion for a new trial nisi remittitur.

On or about the morning of March 27,1986, Mr. Dunn drank a coca-cola from a six and one-half ounce bottle. He testified that the last swallow out of the bottle tasted like lye and it burned as if it had lye in it. Although he washed out his mouth and throat, it continued to burn. He looked at the bottle and discovered a piece of folded up wire and rusty material in the bottom of the bottle. The following day, he went to see his family doctor, Dr. Flowers, who sprayed his mouth for burns and instructed him not to wear his dentures. He continued to see Dr. Flowers for ten months at which point he developed an infection in his throat and was referred to Dr. Rand for an operation.

Following the incident, Mr. Dunn began having difficulty in swallowing. He testified that it hurts for him to take a breath, food becomes lodged in his throat and, if he gets strangled while eating, he coughs up the food. As a result, he can eat [429]*429only soft food and must gargle after every meal to keep the food from lodging in his throat. He can no longer hunt because he coughs all of the time and cannot call his dogs. He used to care for a garden but had to quit because it was painful to catch his breath. He cannot eat food in public for fear that he will cough up food. He stated this incident had ruined his life. Mr. Dunn’s children corroborated their father’s testimony about the incident and the effects it has had on his life. They stated his condition continues to deteriorate and he complains about his throat every day.

Over the course of years since this incident occurred, Mr. Dunn has sought treatment with numerous physicians. At trial, Dr. Flowers testified he saw Mr. Dunn the day after the incident and he found an irritation of the mucous membranes of the mouth and irritation of the throat which could have been caused by a chemical. In January of 1987, he referred Mr. Dunn to a Dr. Rand who performed surgery on Mr. Dunn. He continued to see Mr. Dunn regarding his problems with swallowing. In his opinion, the irritation in Mr. Dunn’s mouth and throat was caused by his consumption of the contaminated coca-cola and this incident was the onset of Mr. Dunn’s problems with his throat. He further stated that Mr. Dunn’s condition was permanent and he would probably need future treatment.

Dr. Rand also testified. He operated on Mr. Dunn to remove the tip of his hyoid bone. Dr. Rand felt the surgery would ease the pain Mr. Dunn was suffering caused by a condition called gastroesophagel reflux. He thought the ingestion of the contaminated coca-cola aggravated this condition. Dr. Rand stated:

What I really think happened with Mr. Dunn is that he became so disturbed about this incident and his whole life [became] focused on this issue of this coke and this contaminated and the burn and the illness that he had conjured in his own mind that the psychological and physical stresses of that tended to make in — you know, tended to make him develop this hyperacidity problem and he became fixated, he had a singleness thought. I mean, his whole life became involved in these symptoms. I mean, he — you know, he reported to me that he lost — he had [430]*430lost weight and that his neck hurt all the time and that his whole life really centered, the last five or six years, around this incident.

In his opinion, Mr. Dunn was going to have this condition for the rest of his life.

We first address the issue of the propriety of the voir dire examination. The record reveals Respondent requested and the trial judge posed the following to the jury panel:

All right, members of the jury panel, let me ask you this question. We all live in a modern world and we know that people have insurance for drivers and automobiles, and we have other — all types of insurance, which protects people who sell things, buy things, drive things, use things, and I don’t know whether or not there’s any insurance involved in this or not, I just don’t have any idea, and I will tell you that it doesn’t make a bit of difference, because the fact that somebody might or might not have insurance shouldn’t affect the jury in any way. And so I’m going to ask you this question: Is there any member of the jury panel who holds an opinion or believes that jurors in a civil case should limit money damages, irrespective of the evidence, in order to reduce insurance rates, if so, please stand. Anybody got any feeling about that?

There was no response. Prior to this, the court asked counsel for Coke what he had to say about him posing this question to the jury panel. Coke simply requested he not ask the question but stated no grounds for objection and at no time moved for a mistrial on this basis.

Coke contends the trial judge erred in asking this question during his voir dire examination of the jury panel, as it was a direct reference to liability insurance. As previously noted, Coke failed to state its grounds for objection and did not move for a mistrial. See Vollington v. Southern Paving Construction Co., 166 S.C. 448, 165 S.E. 184 (1932) (“If defendant’s counsel felt that the matter was of such moment as to seriously and injuriously affect his clients’ interest, he should have moved the court for a nonsuit, or for the ordering of a mistrial. Having failed to do either of these things, he must be held to have elected to take his chances for a favorable issue [431]*431of the trial, and therefore to have waived his objections.”). However, addressing the merits of the issue, we find no abuse of discretion by the trial judge in posing the question as he did to the jury panel. See State v. Matthews, 291 S.C. 339, 353 S.E. (2d) 444 (1986) (The method and scope of voir dire are matters largely within the discretion of the trial court.).

Generally, the fact that a defendant is protected by insurance from liability in an action for damages should not be disclosed to the jury. Bartell v. Willis Construction Co., 259 S.C. 20, 190 S.E. (2d) 461 (1972). The reason for the rule is to avoid prejudice in the verdict, which might result from the jury’s knowledge that the defendant will not have to pay. Id. 190 S.E. (2d) at 463. If insurance is mentioned, the party moving for the mistrial has the burden of showing not only error, but also prejudice. Sarvis v. Register, 288 S.C. 236, 341 S.E. (2d) 791 (1986). Further, the mere reference to insurance alone, in a personal injury action, does not necessitate the declaration of a mistrial. See Billups v. Leliuga, 303 S.C. 36, 398 S.E. (2d) 75 (Ct. App.

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Dunn v. Charleston Coca-Cola Bottling Co.
415 S.E.2d 590 (Court of Appeals of South Carolina, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
415 S.E.2d 590, 307 S.C. 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-charleston-coca-cola-bottling-co-scctapp-1992.