Blackwell v. Coca-Cola Bottling Co.

SoiieNOK, J.

A bug is found in Coca-Cola, bottled and sold by the defendant to a merchant, who in turn sold to the plaintiff. The product was delivered by the defendant to the merchant on Friday and the plaintiff drank the contents on the following Monday. The bottle was capped and there was no evidence that it had been tampered with after delivery to the merchant.

The defendant offered evidence, which was uncontradicted, tending to show the exercise of the highest degree of care in cleansing bottles, bottling and capping them, inspection and supervision and that the plant was equipped with every appliance, safety device, and approved method that inventive genius could devise.

There was no evidence that any foreign substance of any kind had ever been found in any Coca-Cola bottled and sold by the defendant at any other time during its business existence.

The only evidence tending to establish negligence on the part of the defendant is the presence of the bug in the bottle containing the Coca-Cola sold to the plaintiff, and a holding that the evidence of this one fact is sufficient to carry tbe ease to the jury cau be reached only by invoking the doctrine of res ipsa loquitur, which doctrine, irrespective of what may have been the holding in other jurisdictions, this Court has repeatedly held is not applicable to cases of this character. In a recent case, after stating that the basis of liability in such cases is negligence rather than warranty, this Court said: “That in establishing the alleged negligence of the manufacturer, bottler, or packer, the plaintiff is not entitled to call to'his aid the doctrine of res ipsa loquitur.” Enloe v. Bottling Co., ante, 305, and cases there cited.

We are of the opinion, and so hold, that his Honor erred in denying the defendant’s motion, properly lodged under C. S., 567, for judgment as of nonsuit.

Judgment reversed.

DeviN, J., took no part in the consideration or decision of this case.