Appeal, No. 75, March T., 1953, from judgment of Court of Common Pleas of Allegheny County, April T., 1949, No. 1650, in case of Ralph Caskie v. Coca-Cola Bottling Company, Inc. Judgment affirmed.
Kim Darragh, with him George Y. Meyer, for appellant.
Anthony R. McGrath, with him Meyer Umansky, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff in this case became sick soon after drinking some of the contents of a bottle of Coca-Cola, manufactured, bottled and sold by the defendant. He brought this action in assumpsit claiming that defendant breached its implied warranty that the Coca-Cola was fit for human consumption in that it contained hydrochloric acid which caused injury and damages to the plaintiff. A jury awarded plaintiff $6,500. This appeal is from the judgment entered in favor of the plaintiff following the lower court's dismissal of defendant's motion for new trial. A motion for judgment non obstante veredicto in the lower court was not pressed in the lower court or here.
Ralph Caskie, the plaintiff, was a police officer of the City of McKeesport. He testified that on June 29, 1948 he purchased a bottle of Coca-Cola from an enclosed dispensing machine in a police station as he was about to report on duty around 4 o'clock in the afternoon. After he had drunk about one-half of the bottle, he retched, and upon taking the bottle from his mouth noticed that it had a smell which he likened to that of brake fluid. Other police officers who were nearby testified that they noticed the unusual odor. Plaintiff testified that he went to the defendant's plant which was not far distant and before arriving there vomited five times; that he gave some of the contents of the bottle to a company employe who turned it over to the plant manager, and was directed to see a Dr. Hutchison whose office was across the street
from the defendant's plant. He saw Dr. Hutchison who gave him an emetic and two prescriptions. Plaintiff testified that the next morning he was passing blood from the mouth and rectum; that he visited the doctor again and was given another prescription; that he was then confined to his home for eleven days and thereafter "I didn't know when it [the blood] was coming on me. I would be patrolling my beat and automatically it came on... For seven months straight I had the same trouble.", referring to the bleeding of the rectum, and that this condition continued in less severe degree up to the time of trial of the case, in May of 1952; that prior to imbibing the Coca-Cola he had enjoyed good health.
Defendant admitted that the Coca-Cola, when plaintiff left it at the plant, did have an abnormal odor; that it received a little of the contents of the bottle but did not analyze it chemically. Defendant's witnesses explained the manner in which Coca-Cola was bottled at the plant; that hydrochloric acid was not used in any way in the bottling process at the time of the occurrence, although it had been used in the plant in the latter part of 1946 or early part of 1947 in connection with descaling the company's bottle washer; that it was kept in a different portion of the plant, segregated from the bottling process. The bottle with its remaining content was retained by the plaintiff and delivered on July 9, 1948 to a Dr. Schiller, a chemist and bacteriologist, who testified that his analysis revealed the presence of.6 of 1% of hydrochloric acid in the Coca-Cola and that a Coca-Cola containing that percentage of hydrochloric acid was not fit for human consumption. Over a period of about seven months plaintiff was occasionally attended by Dr. Hutchison. He then went to a Dr. Rosen who in turn referred him to Dr. Joseph Hersh. Dr. Hersh, called
by the plaintiff, testified that the plaintiff was sent to him by Dr. Rosen on March 22, 1950; that he had received from the plaintiff a history of the case to the effect that he had swallowed part of a tainted bottle of Coca-Cola on June 29, 1948, whereupon he became desperately ill; that he suffered severe vomiting and diarrhea for six months, first bloody diarrhea and then a mucous type; that he lost 23 1/2 pounds in weight, which he had not regained; that he (the doctor) saw the patient four times, on each occasion giving him a "thorough examination". As a result of the history and examinations he expressed the opinion that the plaintiff suffered and continues to suffer an emotional upset as the result of his illness, "... a traumatic neurosis, a nervous disturbance due to injury.", and a bleeding type of internal hemorrhoids; that both conditions were due to the ingestion of the noxious contents of the Coca-Cola bottle. As to prognosis he said, "I feel if this patient underwent surgery for the hemorrhoids and had a prolonged rest [at least for two months], he would improve to a great extent.". Dr. Hutchison, called by the defendant, testified that the plaintiff was suffering from intestinal poisoning from June 29, 1948, the date of the occurrence, to July 8, 1948, and without stating an opinion as to the cause of the intestinal poisoning, gave as his opinion that the plaintiff's bleeding internal hemorrhoids could ...