Collins v. Lumberton Coca-Cola Bottling Co.

Schenck, J. Since there was a total absence of any evidence as to the time when the bottles of Coca-Cola containing foreign and deleterious substances were sold by the defendant, the bottler, to the various retail dealers, the middlemen, the foundation laid was insufficient to support the introduction of evidence tending to show the occasions on which such substances were found in bottles of Coca-Cola placed on the market by the defendant. Brogden, J., clearly stated the question of law involved in this- class of cases as follows: “Upon the trial of an action for damages for personal injury caused by shivered glass in a bottle of Coca-Cola, is it competent upon the question of negligence to show that foreign substances were *823 found in other bottles of beverage bottled and sold by the defendant ‘at about the same time’ plaintiff was injured?” Perry v. Bottling Co., 196 N. C., 175. The question is answered in the affirmative. In plotting again the decisions in this jurisdiction respecting the liability of one who prepares in bottles beverages and places them on the market, for injuries sustained by the ultimate consumer who purchases such goods from a dealer, or middleman, and not from the bottler, the present Chief Justice, in the recent case of Enloe v. Bottling Company, 208 N. C., 305, writes: “That as tending to establish the principal fact in issue, to wit, the alleged actionable negligence of the defendant, it is competent for the plaintiff to show that like products manufactured under substantially similar conditions and sold by the defendant ‘at about the same time,’ contained foreign or deleterious substances.” On all of the occasions set forth above, with the possible exception of the first, there is a total absence of any evidence as to the time when the bottles of Coca-Cola involved were sold by the defendant to the various retail dealers, and for this reason we hold that the evidence as to such occasions (except the first) was erroneously admitted and that a new trial must be awarded. New trial. Clarkson, J., dissents.