Jackson Coca-Cola Bottling Co. v. Grubbs

108 So. 732, 108 So. 773, 143 Miss. 590, 1926 Miss. LEXIS 296

• Court: Mississippi Supreme Court
• Decided: May 17, 1926
• Docket: No. 25474.
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

The appellee instituted suit in the circuit court of Wimp-son county against the Jackson Coca-Cola Bottling Com turbed, nor tbe dap' 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.

The matter was presented to the jury, not on competent evidence, but upon speculation and conjecture and the only way they could connect these appellants with the manufacture and distribution of the bottle and its contents was upon the grossest presumption, there being no fact to justify such a finding.

R. G. Rtkssell, for appellee.

Appellants in their discussion admit that if they manufactured and sold the coca-cola and the plaintiff was injured as complained of in her declaration, by the drinking of this coca-cola which contained the glass, that a case of liability would have been made out against somebody, but allege that there is no proof that appellant manufactured this bottle; yet Mr. Borden admits in his affidavit that he did at, before, and subsequent to this injury, manufacture coca-cola in Jackson, Mississippi, bottling and selling the same to J. R. Burnham, and that Burnham was at the time a retail dealer in this territory. Plaintiff’s witnesses testified that they saw the Jackson Coca-Cola Bottling Company’s truck ¿delivering coca-cola to J. R. Burnham just before this injury. Other testimony shows that the Jackson Coca-Cola Bottling Company, or Mr. Borden, had Simpson county in its territory and that no other dealers sold coca-cola there.

This testimony certainly was sufficient to put the case to the jury and it found in favor of the plaintiff. In fact, Mr. Borden’s admission is sufficient to carry the cause to the jury. tion. The husband of the appellee also testified that the name of P. L. Borden was on the bottle which he purchased, and there was also testimony tending to show that Simpson county was in the trade territory of the Jackson Coca-Cola Bottling Company, and that plaintiff sold and delivered coca-cola to the retail merchants in that territory. In answer to a direct question, one witness testified that this company was the only one that sold coca-cola in that territory and in the town of Merit during the year, 1924, but on cross-examination he admitted that he did not know that to be a fact, and that the statement was merely a conclusion. There was atóo testimony for the plaintiff that coca-cola was bottled, sold, and distributed by plants located at Laurel and Hattiesburg, and that it was sold on the various trains running-through the trade territory in which Merit is located. The burden was on the appellee to show that the bottle containing glass was manufactured or bottled by the appellants, or one of them, and we think the testimony offered failed to meet this burden. It may be that, by contract or agreement, exclusive rights for the sale and distribution of coca-cola in certain territory were allotted to particular companies, but we cannot know that fact in the absence of proof to establish it. The defendant Burn-ham, who was present at the trial, should have been able to testify as to whom he purchased coca-cola from, but he was not offered as a witness; and, upon the evidence offered for the purpose of showing that the drink was bottled and sold by the appellants, we think the peremptory instruction requested by them should have been granted.

The judgment of the court below will therefore be reversed, and judgment entered here for the appellants.

Reversed, and judgment here for appellants.

Reversed.