I agree with the leading opinion in this case, in so far as the writer thereof holds, in effect, that the rule applicable in cases of food, beverages, confectioneries, etc., placed on the market as apparently fit and wholesome for human consumption, is applicable to chewing tobacco manufactured and sold for human consumption, and therefore the trial Judge committed no error in ruling and charging the jury to that effect in the case at bar. I further agree with the holding expressed by the writer of the leading opinion that the trial Judge committed no error in refusing to direct a verdict for the defendant "predicated upon the theory there was not such privity of contract as would enable respondent to maintain his action *Page 447 against appellant for alleged negligence." However, I am unable to agree with the holding that the trial Judge should have directed a verdict for the defendant because of lack of proof of some negligent act or omission, causing the injury complained of. It is true, as stated in the leading opinion, the doctrine of res ipsa loquitur does not prevail in this State and verdicts cannot rest upon "guess or conjecture," and negligence must be proven affirmatively; but such negligence may be shown by inferential or circumstantial evidence as well as by direct evidence, and, in my opinion, the trial Judge committed no error in submitting that issue to the jury. In this connection I call attention to the following portion of the testimony given by the plaintiff:
"Q. When you bought the tobacco, what did you do with it? A. I started to chewing it. I took four or five chews. I kept it in the left-hand pants pockets. There was nothing in the world in the pants pocket except that piece of tobacco. I bit this piece of tobacco off, and started chewing it, and this tack went up into the gum and by the side of the third jaw tooth.
"Q. It this the remnant of that chew of tobacco and the tack that was in that chew of tobacco (indicating to witness)? A. Yes, sir; that is it.
"Q. That is the part of it? A. Yes, sir.
"Mr. Bush: We offer in evidence the chew of tobacco that he took at the time and the tack that was in it.
"Q. When you took this chew of tobacco you bit it off, and bit down on to it, and this tack was imbedded in the tobacco? [Italics added.] A. Yes, sir.
"Q. What was the effect on you when you bit down on it and that tack went up into your tooth? A. I had an awful pain, and I almost fainted, and as soon as I felt it in there I ran my finger in there, and I could feel the head of the tack, and I couldn't get it out, and I went to my son and asked him to see if he could pull it out, and he tried to reach in there and get it in his finger, but he could not. I was at *Page 448 the Pure Oil Service Station, near the doctor's office, across the street. I went to Dr. Kneece's office, and had him take it out, with some kind of a tweezer. Afterwards I suffered pain for about ten days or two weeks. My jaw swelled up, and I couldn't eat anything solid for about eight days. It was sore and the tooth was decayed and turned dark. It was a perfect jaw tooth before, and it never did give me any trouble before. I had the attention of a physician. He treated it for about ten days or two weeks. During that time I suffered much pain. I could not sleep at night, and I had to take aspirin to get any sleep at all. It was a perfect tooth before this tack was driven into it. It was white. It has now turned dark. It gives me trouble. On the inside where the injury was it still swells up and turns sore, and it does that every few days. Prior to the time that the tack went into the tooth I never had any trouble with it before, and have had trouble with it ever since."
This testimony, in my opinion, was sufficient to take the case to the jury on the issue as to whether or not the defendant was negligent in the manufacture of the tobacco in question and whether such negligence resulted in injury to the plaintiff. In this connection, I especially call attention to the following question and answer quoted above:
"Q. When you took this chew of tobacco you bit it off, and bit down on it, and this tack was imbedded in the tobacco? A. Yes, sir."
It is clear that the plaintiff, in effect, testified that the tack in question was imbedded in the tobacco in question, and I may add that I find nothing in the record tending to show that the plaintiff intended to convey any other meaning, and whether he intended to convey any other meaning was a question for the jury and not for the Court. It has long been the recognized rule in the Courts in this State that even where the witness, in the course of his testimony, makes contradictory statements, it is for the jury to say which statement is correct and true and not for the Court to say. *Page 449
Under my view of the record all of the appellant's exceptions should be overruled and the judgment of the lower Court affirmed.