Appeal by defendant from the Circuit Court of Massac county;
the Hon. HAROLD L. ZIMMERMAN, Judge, presiding. Heard in this
court at the February term, 1951. Judgment reversed. Opinion
filed February 27, 1951. Rehearing denied April 26, 1951.
Released for publication April 26, 1951.
MR. JUSTICE BARDENS DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 26, 1951
This case is an appeal from a judgment of the circuit court of Massac county, Illinois, in favor of Dexter Williams, plaintiff, for the sum of $2,000, plus interest and costs against the Paducah Coca Cola Bottling Company.
The plaintiff filed a complaint against the defendant company which alleges:
"1. That on December 24, 1947, the plaintiff was and is now a resident of Massac County, Illinois.
2. That on aforesaid date, the 24th day of December, 1947, the defendant was and is now a corporation doing business in the State of Illinois under the name of Paducah Coca Cola Bottling Co., Inc., of Paducah, Kentucky.
3. That the defendant in its advertisements, placards, announcements and by other means promised, assured and warranted to the plaintiff and other persons, to-wit: the public, that all Coca Cola sold by the defendant was good, sound, healthful, wholesome, and free from every defect and fit to be consumed.
4. That on December 24, 1947, the defendant sold to the plaintiff by and through its agent and distributor, Joe H. Kilpatrick, doing business under the name and style of the Kilpatrick Grocery at Mermet, County of Massac, Illinois, one certain bottle of Coca Cola warranted to be good, sound, healthful, wholesome, refreshing, and free from defects and fit for human consumption, but on the contrary thereof, was unfit for consumption.
5. That on the date aforesaid, the plaintiff relying upon the promise and warranties of the defendant respecting the wholesome and healthful qualities of its Coca Cola, then and there, for a certain reward paid by the plaintiff to the defendant, by and through its agent and distributor aforesaid, ordered and consumed a certain bottle of Coca Cola furnished by the defendant.
6. That the plaintiff after drinking the same, by reason thereof, became sick, disordered, diseased and infected with disease from the use of said drink and suffered mental anguish and pain, and he was confined to his home for a long time and was obliged to lay out, expend and become liable for large sums of money, to-wit: $500.00, in endeavoring to be healed of his illness and disorder occasioned as aforesaid, and in the future will incur expenses for medical treatment in connection with injuries resulting from the consumption of the aforesaid Coca Cola, and he was hindered and prevented from attending to and transacting his ordinary affairs and business and thereby lost large sums of money, to-wit: $2,000.00, and in the future will be hindered in attending to and transacting his ordinary affairs and business due to his injuries resulting from the consumption of the aforesaid Coca Cola, and he was in other respects injured.
7. That by reason of the premises plaintiff has suffered damages in the sum of $2,500.00."
The Coca Cola Company in its answer admitted the allegations of the first three paragraphs of the complaint, but denied the allegations contained in the remaining paragraphs.
On trial evidence was introduced: That the defendant was engaged in the business of bottling and selling Coca Cola in the area where the Kilpatrick store was located; that the defendant had at various times before and after the sale in question sold Coca Cola by the case to the Kilpatrick Grocery; that on December 24, 1947, a bottle of Coca Cola was purchased for the plaintiff from the Kilpatrick Grocery; that after the plaintiff had taken two sips of it, it was discovered that a penny-match-box cover was in the bottle; that the plaintiff became immediately ill and vomited; that within a day after this occurrence, Williams consulted two doctors and that thereafter he remained for sometime under the care of a third doctor; sales by the defendant to Kilpatrick of Coca Cola covering a period of several months prior to the incident in question, one of which was on December 23, 1947, for ten cases; testimony of Mrs. Kilpatrick that the bottle in question was one delivered by the driver-agent of the defendant. Defendant strenuously denied that it bottled the Coca Cola in question, introduced evidence of its bottling processes both by oral testimony and photographs; and introduced testimony of its employees that it would be impossible for the bottle in question to go through the process described and have any foreign substance such as a match box remain in the bottle. Defendant also showed by cross-examination of plaintiff's witnesses that in this particular store, namely, the Kilpatrick store, beverage from some seven different companies was delivered and placed on the floor at the front of the store at a point that was accessible to the general public and also to all the different competitors of the defendant; that the beverages were cooled in an ice container that was near the front door of the store and that it was accessible to anyone who desired to raise the lids and reach into the container; that customers of the Kilpatricks frequently served themselves out of the cooling case; and that the store was used by some as a lounging or loafing place.
Defendant filed motions for directed verdict at the close of plaintiff's evidence and at the close of all of the evidence and motions for judgment notwithstanding the verdict and in arrest of judgment. Defendant assigns error in the refusal of the court to allow these motions; that the verdict of the jury is contrary to the manifest weight of the evidence; that the verdict is grossly excessive; and that there was error in the giving of certain of plaintiff's instructions and refusing of some of defendant's instructions.
We are presented with anomalous situations in this case in that (1) the complaint is founded on the proposition that Kilpatrick was the agent and distributor of the defendant and, although denied, no evidence was offered in support of this allegation, and (2) the defendant admitted allegations of paragraph 3 which allege a warranty by the defendant, yet the defendant denies that it is liable under any implied warranty. However, the parties in their briefs and arguments treat the case as one founded on implied warranty running ...