Graham v. Cloar , 30 Tenn. App. 306 ( 1947 )

On Petition to Rehear. The plaintiffs in error have filed a very able and insistent petition to rehear in this case.

The contention is the Court was in error in its opinion, in holding that the defendant's motion for a directed verdict was properly overruled and in holding that the case should be remanded for a new trial.

The basis of this contention is that the Court was in error in holding that the evidence of the explosion of bottles of coca-cola purchased from the defendant very shortly after the injury to the plaintiff was competent.

This question was fully presented in argument and in briefs and fully considered by the Court in its opinion.

In the opinion it is stated as a conclusion of the Court that this evidence was competent as circumstances tending to show negligence on the part of the defendant, and cited Winfree v. Coca Cola Bottling Works, 19 Tenn. App. 144,83 S.W.2d 903, as determinative of the identical question.

In that case the plaintiff was injured by the explosion of a bottle of coca cola and his right eye permanently injured by a piece of glass as a result.

The plaintiff offered testimony of witnesses to show that prior to, about the time, and subsequent to this accident other merchants bought bottles of coca cola from the defendant, which exploded under similar circumstances. This testimony was excluded and the assignments of error was to the action of the Court in excluding this testimony and in granting the defendant's motion for a directed verdict.

The Court held that the exclusion of this testimony was error and remanded the cause for a new trial.

Certiorari was denied by the Supreme Court. The opinion was published in 1935. It has not been overruled or modified in any way.

This is the authority upon which the Court holds, in its opinion, that the evidence of the subsequent explosions was competent. The petition makes no reference at all to that case, but presents an elaborate argument to the effect that the evidence was incompetent. We are unable to follow that argument in view of Judge Crownover's opinion directly holding that such evidence is competent.

The petitioner cites and quotes extensively from the case of Liggett Myers Tobacco Co. v. Cannon, 132 Tenn. 419, 178 S.W. 1009, L.R.A. 1916A, 940, Ann. Cas. 1917A, 179.

In that case the theory of the plaintiff was that the defendant, as manufacturer, was liable because a bug had been negligently manufactured in a plug of tobacco which he purchased from retail dealer in Memphis.

The Court stated the general rule that a manufacturer of an article placed by him on the market and sold by another is not liable to the last named for defects or impurities in the articles, and then stated the exceptions to the rule in the case of food and drink and held that tobacco did not come within the exceptions. We do not think that the facts of that case or the holding is pertinent to the question here.

The questions presented in the petition were fully presented in petitioner's brief and were considered at the time the opinion in the case was prepared.

We are of the opinion that the Court was not in error in overruling the motion for a directed verdict and accordingly the petition is denied.

Anderson, P.J., and Hamner, J., concur.