In a trial before the court without a jury, Mrs. Ethel Morgan recovered judgment against the Royal Crown. Bottling Company in the amount of $300, as damages for illness suffered as a result of drinking part of a bottle of R. C. Cola which contained a dead spider. The company has moved for an appeal on the ground that judgment should have gone for the defendant because of failure to prove the integrity of the bottle.
Mrs. Morgan and her husband operated a small, one-room country store, with gasoline pumps out in front. Frequently Mrs. Morgan tended the store alone, while her husband worked in the mines. When she waited on motorists desiring gasoline, there would be no one watching the inside of the store, and on a few occasions customers had entered the store when she was operating the gasoline pumps. At times during the day there would be as many as five or six customers in the store.
The soft drink cases were stacked in the main store room, against a counter. As the demand required, bottles were placed for cooling in a flat-top freezer, from which they were removed for sale to customers. A customer desiring a soft drink could wait on himself. The bottle from which Mrs. Morgan drank was delivered to the store either one week or two weeks previous to the day on which she drank from it.
It is our opinion that the facts in this case, as concern integrity of the bottle, cannot be distinguished from those in Ashland Coca-Cola Bottling Co. v. Byrne, Ky., 258 S.W.2d 475, Glasgow Coca-Cola Bottling Works v. Wilson, Ky., 264 S.W.2d 872, and Davis Red Rock Bottling Co. v. Alsip, Ky., 287 S.W.2d 594, in each of which cases it was held that the plaintiff had failed to sustain the burden of showing no opportunity for tampering.
The motion for an appeal is sustained and the judgment is reversed, with directions to enter judgment for the defendant.