This is the second appeal of this case. The judgment rendered in the first trial for Ella Eudy was reversed, and the cause remanded for error of the trial court in failing to grant a new trial upon newly-discovered evidence. Coca-Cola Bottling Co. v. Eudy,191 Ark. 877, 88 S.W.2d 53.
Upon the second trial the record is not essentially different from the record upon the first trial except that the witness, Mrs. Moore, absent at the time of the first trial, was called and testified. Practically all the matters set forth in her affidavit in the motion for a new trial are to the same effect upon the last trial. The only difference in the result is that the first judgment was for $600, and the judgment from which this appeal was *Page 437 brought is $1,250. Mrs. Eudy's action is based upon an illness alleged to have been caused by a spider found in a bottle of Coca-Cola served to her in a restaurant in Newport, Arkansas. She and Mrs. Moore had gone together to the restaurant to get a drink. After drinking, a partially decomposed spider was found in the bottle and Mrs. Eudy became very ill. A doctor was sent for and she was taken to her room at the home of Mrs. Moore where she had been employed as a servant at $2 a week and board for herself and small child.
The effect of Mrs. Moore's testimony was that Mrs. Eudy had found a spider about the house, had killed it and took it with her and put it in the bottle at the restaurant after it had been opened, and from which she was drinking. The question of fact raised by this positive and direct testimony, so given by Mrs. Moore, together with all other facts, was submitted to the jury under proper instructions, the instructions having been approved in numerous cases of this same type.
The evidence is to the effect that the drink was served by taking a bottle from the cooler and opening it in the presence of appellee, and that it was at the time of sale in the same condition as when received from the bottling company. The spider was found in the bottle while appellee was drinking therefrom. She became very ill, and a physician was called and he treated her before she left the restaurant at which she had purchased the drink.
The facts presented made a jury question. There was, therefore, no error in refusing to direct a verdict for defendant.
Appellant suggests that the verdict of the jury was excessive. This alleged error was presented in a motion for a new trial.
Mrs. Eudy says that she was sick and in bed on account of her illness for about two weeks. At that time she got married and left the community. She says however that she continued in, and suffered to some extent for about two months. Her physician shows that she suffered considerable pain and distress for a period of four or five days, and that it was necessary for him to *Page 438 visit her during that period. He then states that she made a normal recovery. It was agreed between the parties and stipulated in the record that the appellee did not suffer any permanent injury, and upon this stipulation the allegations of the complaint to that effect were abandoned.
It is argued by appellee with considerable force and effect that the extent of the injury, the virulence of the attacks and the continuance thereof, anguish and suffering are matters to be determined by the jury to the same extent as the matter of liability. With this contention we are in hearty accord.
It is urged, however, with equal force, that this testimony does not support any finding of fact justifying $1,250 verdict. The first jury had found and fixed liability at $600. Appellee says that statement should not influence us, though it is argued by appellant as a matter tending to show the excessiveness of the last judgment. We do not think it has this effect. The only proposition presented here is whether the facts justify the judgment rendered upon this trial. Mrs. Eudy's money loss was negligible. During the two weeks that she remained at the home of Mr. and Mrs. Moore she did not receive her wage of $2. She and her child, however, were supported so her loss of wages amounted to $4. The doctor's bill for the four or five trips, under ordinary conditions, would not have been large. If she proved how much that loss was the abstract does not reflect it. For her pain and suffering she has a judgment for more than $1,200. It is not a proposition of what one would expect to be paid to make him willing to suffer as she probably did during her illness. There is no proof of additional injury or suffering after the first trial. Verdicts not supported by proof may be set aside. Texas St. Louis Ry. Co. v. Eddy, 42 Ark. 527.
This was quoted with approval in Coca-Cola Bottling Co. v. Cordell, 189 Ark. 1132, 76 S.W.2d 307. See also M. P. Rd. Co. v. Remel, 185 Ark. 598, 48 S.W.2d 548. *Page 439
This matter is fully presented in the case of Coca-Cola Bottling Co. v. Massey, ante p. 423, 100 S.W.2d 681.
It is a matter of compensation for the pain and suffering both physical and mental, and also for her loss of time and doctor's bill as the record may show was established by proof. We are convinced that this record does not support the verdict rendered; that it will not support a judgment in excess of $300.
The judgment is, therefore, modified to permit a recovery of $300, and as modified, is affirmed.
HUMPHREYS and MEHAFFY, JJ., dissent as to modification.