Moss v. Coca Cola Bottling Co.

[381]

VAN DYKE, J.—

Plaintiff brought this action against the Coca Cola Bottling Company of Chico, California, for damages alleged to have been caused by drinking from a bottle of Coca Cola manufactured and bottled by defendant, which bottle, when opened, contained a mouse.

Plaintiff’s action was predicated on two counts, one on negligence, and the other on breach of warranty. Trial was had upon the two counts and the jury returned a general verdict for plaintiff, assessing his damages in the sum of $500. The court reduced the amount of the verdict to $301. Plaintiff stipulated to the reduction in lieu of a new trial. Defendant has appealed from the judgment.

Defendant first contends that the evidence is insufficient to support the verdict. It is specifically urged that plaintiff failed to prove that the bottle containing the mouse had been bottled by defendant, and if so, plaintiff still failed to prove that the bottle was in the same condition when used as when delivered to plaintiff’s employer. The evidence shows at the time of the occurrence complained of by him plaintiff was employed as a molding machine operator by the Chico Wood Products Company. The company had previously purchased a vending machine for dispensing Coca Cola and placed it on the premises for the convenience of its employees. Plaintiff’s employer purchased Coca Cola from defendant in ease lots and delivery was made by defendant. Each delivery contained a sufficient amount to last a week and the bottles not immediately placed in the vending machine were stored in a locked room. The vending machine was under the exclusive control of plaintiff’s employer who serviced it. All Coca Cola placed in the machine was purchased from defendant.

On the afternoon of June 9, 1948, plaintiff was working the swing shift which commenced at 4:30 p. m. Around 6:30 p. m. plaintiff and the crew of about six men decided to have some Coca Cola. The crew threw their nickels on a table near the machine they were operating and one of them went after the Coca Cola. It is approximately 120 feet from the molding machine to the Coca Cola machine. During the time one of the crew was engaged in obtaining the Coca Cola, plaintiff and another member of the crew, a Mr. Ferguson, went to the rest room for a period of two or three minutes. When they returned to the molding machine the members of the crew were drinking from the bottles. Plaintiff testified that two bottles remained. They had been opened. He picked one up and started to drink. He said he took one swallow,