Appeal from the Municipal Court of Chicago, the Hon. NORMAN N.
EIGER, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Robert Harris brought an action in the Municipal Court of Chicago against the Coca-Cola Bottling Company of Chicago, Inc. (hereafter referred to as the defendant). The action was brought to recover for damages alleged to have been sustained by the plaintiff as the result of drinking from a bottle of Coca-Cola in which there was a small dead rat or mouse. The suit was predicated on an alleged breach of an implied warranty that the beverage was free from defects and impurities and fit for human consumption. The jury returned a verdict in favor of plaintiff and against defendant, assessing plaintiff's damages at $900. The judgment appealed from was entered on that verdict. Thereafter the defendant's post-trial motion was overruled.
The defendant here contends that the evidence adduced by plaintiff was not sufficient to prove a breach of warranty on the part of the defendant, that the defendant was irreparably prejudiced by the admission of improper evidence and by the rulings made by the trial court, and that the court erred in the giving and refusing of certain instructions.
Plaintiff on July 26, 1956, and since 1951, had been employed as a bus boy by the Black Orchid Supper Club in Chicago, Illinois. He started work at three o'clock in the afternoon and worked until about closing time. On the day in question at about six o'clock he went to the kitchen of the Black Orchid Supper Club and the cook gave him his dinner. He did not remember what he had but he thought it was stew. He also got a capped bottle of Coca-Cola to drink with it, which he opened at the bottle opener at the fountain. He ate some of his dinner and took a swallow of the coke. He found there was something wrong with it and he then discovered parts of the mouse in the bottle. He stated some of the hair off the mouse was in his mouth and he felt "grease or something" in his mouth. As a result he started vomiting. He took the bottle and left the kitchen, and the head waiter sent him in a taxicab to Wesley Memorial Hospital. In the hospital he was sent to the emergency room where a physician took his history and gave him a physical examination, the findings of which were essentially negative. He was given a half grain of phenobarbital to alleviate anxiety. The bottle of Coca-Cola, which had a terrible odor and which had in it a dark, heavy object with a skeleton resembling a mouse, was placed in a refrigerator to be sent to bacteriology for culture and sensitivity. After leaving the hospital the plaintiff went home and went to bed. His mother called the family doctor because the plaintiff was "vomiting and running to the washroom." The physician testified that the plaintiff was in a panicky state and nauseated, that he gave him a hypodermic containing a sedative and an antibiotic, and also gave him an enema. He told him to apply hot packs to his body, drink plenty of fluid and not to eat any food for a day or two. He stated that the plaintiff had a fear that he had suffered permanent injury from the occurrence. The physician visited plaintiff several times at his home, where the plaintiff continued vomiting for some four days. The plaintiff continued to receive treatment at the doctor's office for several weeks and the doctor submitted to the plaintiff a bill in the amount of $112.
The defendant first argues that there is no evidence in the record tending to prove that the bottle of Coca-Cola from which the plaintiff allegedly drank was bottled or sold to the Black Orchid Supper Club by the defendant.
It is true that the only evidence in the record is that the defendant had an exclusive franchise to bottle and distribute Coca-Cola in the Chicago area. However, that question is not before this court for consideration because it was not raised by the defendant in its post-trial motion, and unless it was so raised and passed on by the trial court it cannot be considered here. Perez v. Baltimore and Ohio R. Co., 24 Ill. App.2d 204, 164 N.E.2d 209.
In the post-trial motion the defendant says: "There was no competent evidence introduced by the plaintiff, or in any evidence offered or received by the Court, to show that the Coca-Cola in question was in the same condition at the time it was allegedly placed in the hands of the plaintiff as said Coca-Cola had been at the time it left the control of the defendant." Defendant further states: "There was no competent evidence adduced on the trial of the cause to show either that the Coca-Cola bottle in question had not been tampered with or, in the alternative, that there was no reasonable opportunity for tampering with said bottle after it had left the control of the defendant." (Italics ours.) From these statements the implication is uncontrovertible that at the time of the argument of the post-trial motion there was no contention on the part of the defendant that the bottle of Coca-Cola had not been bottled and sold by it to the Black Orchid Supper Club.
The defendant next argues that the burden rests upon the plaintiff to prove, by direct or circumstantial evidence, either that there was no reasonable opportunity for tampering with the bottle or, if the evidence discloses that there was reasonable opportunity for tampering, that there actually was no tampering or adulteration.
The record shows that the plaintiff testified that on the day in question when he got his supper from the cook he went into the dining room and asked the bartender for a bottle of Coca-Cola, which the bartender gave to him. The bottle of Coca-Cola was obtained from a refrigerator back of the bar, which was kept locked when the bartender was not there. He also testified that Coca-Cola was kept in the kitchen behind the bar where the bartender was, but that those Coca-Colas were not kept cold, and that when the defendant's employees delivered the Coca-Cola it was left upstairs and checked off, and nobody got in or used any of them.
The plaintiff had testified that one Dickson saw him get the Coca-Cola. Dickson testified that plaintiff got his Coca-Cola out of a case, and, after considerable prodding on cross-examination, that plaintiff got his Coca-Cola out of a case in the kitchen. The plaintiff also testified that he noticed at the time when he removed the cap from the bottle that it was just an ordinary cap and it came open like any other bottle which he had opened previously, and that the cap was no looser than that on the other bottles which he had opened in the past.
The defendant relies on the case of Williams v. Paducah Coca Cola Bottling Co., Inc., 343 Ill. App. 1, 98 N.E.2d 164. In that case the plaintiff alleged that he had been made ill by drinking from a bottle of Coca-Cola in which there was a penny-match-box cover. The evidence further showed that the plaintiff bought the Coca-Cola from a particular store; that at that store beverages from some seven different companies were delivered and placed on the floor at the front of the store at a point where it was accessible to the general public and 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 was accessible to anyone who desired to raise the lids and reach into the container; that customers frequently served themselves; and that the store was used by some as a lounging or loafing place. The jury returned a verdict for the plaintiff and the court entered judgment thereon. In its opinion the court discusses Patargias v. Coca-Cola Bottling Co. of Chicago, Inc., 332 Ill. App. 117, 74 N.E.2d 162, and points out that in the Patargias case no issue was presented as to whether or not the defendant had bottled the particular bottle in question or as to the opportunities for tampering with the bottle after it had left the control of the manufacturer or bottler, and that those issues in that case were treated as having been proven in plaintiff's favor. The court cites Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405, 158 S.W.2d 721, where the court distinguishes between implied warranties of fitness of food contained in sealed cans and liquids in a capped bottle, and, quoting from that case, the court says:
"`But, there is a fourth class of cases, in which the instant case falls, which presents the difficulty with which we here have to deal; the cases of soft drink, or milk bottles, or the like, enclosed by caps which it is possible to remove and replace, by the use of care. We have here a distinctive element of fact which breaks the conclusive continuity of control between the bottler and the consumer, when the physical possession has been in a third party, such as an intermediary vendor. To close this gap of control so as to make fairly applicable the rule of presumptive or prima facie negligence on the part of the bottler or manufacturer, we are of opinion that a higher degree of proof must be made that there has been no reasonable opportunity for tampering with the bottle, or its contents, in the interim between the physical control of the bottler or manufacturer, and that of the consumer.'"
"Bottled cokes and many other drinks are sealed with a crown cap. It is possible, with care, to remove and reseal the container without the removal being easily detected. This is a very different situation from that presented by products which are sealed in cans or with a seal of paper or some other substance added to the crown or other closing device. When a person who buys food in sealed cans obtains possession of the can it is generally possible for him to tell by the slightest inspection whether or not it has been tampered with since the can was sealed. There is a fair inference if the tampering is not obvious that the ...