* Corpus Juris-Cyc. References: Food, 26CJ, p. 788, n. 41, 53. The appellee instituted suit in the circuit court of Simpson county against the Jackson Coca-Cola Bottling Company, *Page 594 a corporation having its domicile and place of business, in Jackson, Hinds county, Miss., and P.L. Borden, a resident citizen of Jackson, Miss., and J.R. Burnham, a resident citizen of Simpson county, Miss., seeking to recover damages for personal injuries alleged to have been sustained as a result of drinking coca-cola from a bottle containing broken glass. The declaration alleged that the said Jackson Coca-Cola Bottling Company and P.L. Borden were manufacturers and distributors of coca-cola, and that J.R. Burnham was a retail merchant engaged in the sale of coca-cola at Merit, Simpson county, Miss.; that the plaintiff, through her husband, purchased from J.R. Burnham a bottle of coca-cola which had been manufactured by the said bottling company and P.L. Borden and sold and delivered to the said Burnham; that while she was drinking the said coca-cola, she discovered therein a large number of particles of glass; that she had already swallowed some of this broken glass; and that she was thereby made seriously ill and caused to suffer great pain and agony.
The declaration further alleged that the said bottling company and P.L. Borden were grossly negligent in causing or permitting said coca-cola to be placed in a bottle containing broken or shivered particles of glass. At the trial of the case, there was a verdict and judgment against the Coca-Cola Company and P.L. Borden for four thousand dollars, from which they have prosecuted this appeal.
There are numerous assignments of error argued at length by counsel which involve matters preliminary to the actual trial in the court below, but which it will be unnecessary to discuss, in view of our opinion upon the sufficiency of the evidence offered by the plaintiff.
There was testimony to the effect that a truck bearing the name of Jackson Coca-Cola Bottling Company was seen to deliver soft drinks at the store of the defendant Burnham on several occasions, both before and after the purchase by the appellee of the bottle of cola-cola in question.
The matter was presented to the jury, not on competent evidence, but upon speculation and conjecture and the only way they could connect these appellants with the manufacture and distribution of the bottle and its contents was upon the grossest presumption, there being no fact to justify such a finding.
Appellants in their discussion admit that if they manufactured and sold the coca-cola and the plaintiff was injured as complained of in her declaration, by the drinking of this coca-cola which contained the glass, that a case of liability would have been made out against somebody, but allege that there is no proof that appellant manufactured this bottle; yet Mr. Borden admits in his affidavit that he did at, before, and subsequent to this injury, manufacture coca-cola in Jackson, Mississippi, bottling and selling the same to J.R. Burnham, and that Burnham was at the time a retail dealer in this territory. Plaintiff's witnesses testified that they saw the Jackson Coca-Cola Bottling Company's truck delivering coca-cola to J.R. Burnham just before this injury. Other testimony shows that the Jackson Coca-Cola Bottling Company, or Mr. Borden, had Simpson county in its territory and that no other dealers sold coca-cola there.
This testimony certainly was sufficient to put the case to the jury and it found in favor of the plaintiff. In fact, Mr. Borden's admission is sufficient to carry the cause to the jury. *Page 595 tion. The husband of the appellee also testified that the name of P.L. Borden was on the bottle which he purchased, and there was also testimony tending to show that Simpson county was in the trade territory of the Jackson Coca-Cola Bottling Company, and that plaintiff sold and delivered coca-cola to the retail merchants in that territory. In answer to a direct question, one witness testified that this company was the only one that sold coca-cola in that territory and in the town of Merit during the year, 1924, but on cross-examination he admitted that he did not know that to be a fact, and that the statement was merely a conclusion. There was also testimony for the plaintiff that coca-cola was bottled, sold, and distributed by plants located at Laurel and Hattiesburg, and that it was sold on the various trains running through the trade territory in which Merit is located. The burden was on the appellee to show that the bottle containing glass was manufactured or bottled by the appellants, or one of them, and we think the testimony offered failed to meet this burden. It may be that, by contract or agreement, exclusive rights for the sale and distribution of coca-cola in certain territory were allotted to particular companies, but we cannot know that fact in the absence of proof to establish it. The defendant Burnham, who was present at the trial, should have been able to testify as to whom he purchased coca-cola from, but he was not offered as a witness; and, upon the evidence offered for the purpose of showing that the drink was bottled and sold by the appellants, we think the peremptory instruction requested by them should have been granted.
The judgment of the court below will therefore be reversed, and judgment entered here for the appellants.
Reversed, and judgment here for appellants.
Reversed. *Page 596