Pepsi-Cola Bottling Co. v. McCullers

52 S.E.2d 257, 189 Va. 89, 1949 Va. LEXIS 152
CourtSupreme Court of Virginia
DecidedMarch 7, 1949
DocketRecord No. 3454
StatusPublished
Cited by23 cases

This text of 52 S.E.2d 257 (Pepsi-Cola Bottling Co. v. McCullers) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pepsi-Cola Bottling Co. v. McCullers, 52 S.E.2d 257, 189 Va. 89, 1949 Va. LEXIS 152 (Va. 1949).

Opinion

Eggleston, J.,

delivered the opinion of the court.

Like the companion case of Norfolk Coca-Cola Bottling Works v. Land, ante, page 35, 52 S. E. (2d) 85, decided today, this is a tort action brought by Addie Lee McCullers. against Pepsi-Cola Bottling Company of Norfolk, Inc., to recover damages alleged to have been sustained as the result of drinking a bottle of Pepsi-Cola containing “a small mouse and other obnoxious foreign matter.” The allegations of negligence are the same as those made in the Land Case. The trial resulted in* a verdict and judgment of $1,200 for the plaintiff.

[93]*93As in the Land Case, we are asked to enter a final judgment for the defendant because, it is said, the evidence fails to show that the defendant was guilty of. any actionable negligence; that it fails to show that the mouse was in the bottle when it left the custody of the defendant, and that it is just as likely or even more probable that it got into the bottle after it had been opened by the plaintiff.

Since there must be a new trial on another assignment of error, we will not give a detailed analysis of the evidence. Suffice it to say that the evidence on behalf of the plaintiff shows that on April 22, 1947, about seven p. m., her son, at her direction, purchased from a local grocer two bottles of Pepsi-Cola which were delivered to her, tightly capped and sealed. In the presence of her son the plaintiff opened one of the bottles and proceeded to drink the contents. After she had taken several drinks from the bottle, over a period of some fifteen minutes, she observed the presence of some foreign object which upon closer inspection turned out to be a small mouse. When not actually drinking from the bottle it remained open on the near-by table. She displayed the bottle and its obnoxious contents to several members of the family. .

The plaintiff became nauseated and, to use her own words, “rushed out to the doctor” whose office was five or six blocks away. Leaving the doctor’s office she took the bottle to her attorney. The next morning, at the request of the attorney, the carcass of the mouse was placed by a local druggist in a solution of formaldehyde. It was exhibited at the trial.

It was shown that the local grocer purchased his supply of Pepsi-Cola from the Newport News branch of the Pepsi-Cola Bottling Company of Norfolk, Inc. When delivered to the grocer the bottles were “securely capped” and were delivered by him to the plaintiff’s son in the same condition. This particular bottle, the grocer said, had been in his possession for about a week, during which time, along with others, it was kept in the “main store.”

[94]*94The evidence discloses that the beverage was bottled at the defendant’s plant in Norfolk.

As in the Land Case, the evidence on behalf of the defendant tends to show that it used a high degree of care in cleansing, sterilizing and inspecting the empty bottles, and in bottling or sealing the finished product. There is testimony that the best and most improved machines and methods known to the trade were used in this process. The superintendent of the defendant’s bottling plant stated that, in his opinion, the body of a mouse would be thoroughly disintegrated in the cleansing process to which the bottles were subjected before filling, and that it would have been impossible for the carcass of the mouse to have withstood the cleansing process, or to have gotten into the bottle during the filling and bottling process.

Nevertheless, if the testimony on behalf of the plaintiff and her witnesses is to be believed, the mouse was in the bottle at the time she opened it.

In support of its contention that this evidence is insufficient to sustain the verdict the. defendant makes the same argument which was advanced in the Land Case. It is argued that the principle announced in Norfolk Coca-Cola Bottling Works v. Krausse, 162 Va. 107, 121, 173 S. E. 497, that a foreign substance in a food package or bottled drink is in itself “evidence of negligence,” should not be applied to the present case, because, it is said, the evidence shows that after the bottle in question had left the custody of the defendant manufacturer and was in the custody of the plaintiff, and while she was drinking from it, it stood open on the table for a period of some fifteen minutes before the presence of the obnoxious matter was discovered, and that at that time it may have gotten into the bottle.

With respect to this contention our conclusion here is the same as that in the Land Case, that is, whether the foreign substance was in the bottle at the time it left the custody of the defendant, or whether it got into the bottle while it was in the custody of the local merchant, or while it remained open on the table in the plaintiff’s home, was [95]*95a fact to be determined by the jury upon proper instructions.

If the jury had found from the evidence that the obnoxious matter was in the bottle at the time it left the custody of the defendant bottling company, then its presence in the original bottle or package was evidence of the defendant’s negligence. On the other hand, if the jury had found from the evidence that the obnoxious matter was not in the bottle when it left the custody of the defendant company, but got into it afterwards, its presence in the bottle was not evidence of negligence on the part of the defendant bottling company.

In our opinion this issue was not properly submitted to the jury. In “Plaintiff’s Instruction No. B” it was said: “The court instructs the jury that they may infer negligence from the fact that foreign substance was found in the bottle, and the law does not require the plaintiff to show the particular dereliction.”

This instruction was erroneous. As we pointed out in the Land Case, the inference of negligence on the part of the defendant bottling company from the presence of the obnoxious substance in the bottle should have been predicated upon a finding that the bottle was not tampered with after it left the custody of the defendant bottling company, and that the obnoxious substance was in the bottle at the time the defendant parted with possession of it.

As given, the instruction deprived the defendant of the defense that the mouse may have gotten into the bottle either while it was in the possession of the local grocer or while it was in the custody of the plaintiff herself.

Moreover, the instruction was defective in that it failed to tell the jury that the inference of negligence on the part of the defendant bottling company from the presence of the obnoxious substance in the bottle might be rebutted by evidence that the defendant had exercised a high degree of care in the cleansing and filling of its bottles.

The first paragraph of “Defendant’s Instruction No. 8” properly told the jury that “the prima facie case of negligence” on the part of the defendant, which was made out [96]*96by the showing of the presence of the foreign substance in the bottle, was rebuttable by evidence that it had exercised a high degree of care in the cleansing, filling and inspection of its bottles.

But the last paragraph of the instruction was more favorable to the defendant than it should have been.

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Bluebook (online)
52 S.E.2d 257, 189 Va. 89, 1949 Va. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pepsi-cola-bottling-co-v-mccullers-va-1949.