This is a damage suit by E. A. Searson against the Whistle Bottling Company. The defendant was in the business of manufacturing and placing on the market in bottles a soft drink called "Whistle" for the public. A friend of plaintiff purchased from a retailer two bottles of Whistle, and gave one to plaintiff. It contained a bug called "thousand legs." Plaintiff was made sick, nauseated, and caused to suffer pain and mental anguish from drinking a portion of the contents of the bottle. There was judgment for plaintiff, and the defendant appeals.
There are two counts in the complaint. Count 1 claims damages for breach of a warranty, and count 2 for negligence. Count 1 was withdrawn, and demurrers to count 2 as amended were overruled by the court.
This court has declared this rule:
"An act of negligence of a manufacturer or seller, which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third persons who suffer from the negligence regardless of the privity of contract." Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667.
"It has been observed that the real ground of liability of the seller to an ultimate consumer is, more properly speaking, a duty one owes to the public not to put out articles to be sold upon the markets for use injurious in their nature, of which the general public have no means of inspection to protect themselves." 24 R. C. L. sec. 806, p. 514; Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667; Jones v. Gulf States Steel Co., 205 Ala. 291,88 So. 21; Bellingrath v. Anderson, 203 Ala. 62, 82 So. 22.
Count 2, when carefully read, clearly contains sufficient averments to state a cause of action; and it is not subject to the demurrers. It alleges, first, a duty owed by the defendant to the public, of which plaintiff is a member, not to manufacture a drink, and place it on the market for sale for human consumption that will be injurious in its nature to human life. It alleges, second, a negligent breach of that duty by the defendant. It avers the defendant bottled a portion of the beverage, which was purchased by a merchant to be retailed for human consumption, and that defendant "negligently permitted said bottle of said beverage to be unsuitable and unfit, in a reasonable manner, for human consumption, by reason of it having *Page 389 therein a bug or insect of some kind, which made it nauseating, sickening, and dangerous to any person who consumed the said beverage." It alleges, third, an injury to plaintiff as a proximate result of that negligence. It avers the bottle as retailed to Thomas Dunlap in the presence of and for plaintiff's use and plaintiff drank a portion of it, was made sick, became nauseated thereby, and suffered pain therefrom. All of the three essential elements necessary to be averred in an action based on negligence to state a right of recovery sufficiently appear in this count. Tenn. C. I. R. Co. v. Smith, 171 Ala. 251, 55 So. 170. The court did not err in overruling the demurrers to count 2. Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667; Jones v. Gulf States Steel Co., 205 Ala. 291, 88 So. 21; Bellingrath v. Anderson, 203 Ala. 62, 82 So. 22.
Plaintiff was asked this question over objection of the defendant, "Did you suffer any during that time?" to which he answered, "Yes, sir; I suffered that time with my stomach, and have suffered since." In this there was no error. Suffering is a collective fact, known to the party enduring and feeling it, and he may testify to it. He feels the pain, knows it is there, and can give testimony concerning it. Thornton v. State,113 Ala. 43, 21 So. 356, 59 Am. St. Rep. 97; Birmingham Ry. Elec. Co. v. Franscomb, 124 Ala. 621, 27 So. 508.
There is an assignment of error based on a part of the oral charge of the court. It cannot be considered by this court on appeal, as no exception was reserved to it in the trial court. Mooneyham v. Herring, 204 Ala. 332, 85 So. 390; McPherson v. State, 198 Ala. 5, 73 So. 387.
Charge 5, requested by the defendant, was refused by the court. It reads:
"The court charges the jury that if, under the evidence and issues in this case, if the defendant on the occasion complained of used that degree of care and diligence that persons engaged in the same kind of business would have used, you should return a verdict for the defendant, and this would be true regardless of whether there may have been a bug in the bottle out of which the plaintiff drank."
It does not state correctly the law of negligence. It does not correctly define negligence. It directs a verdict for defendant, if it used that degree of care and diligence that persons engaged in the same kind of business would have used, without stating if the defendant used that degree of care and diligence that any ordinarily careful and diligent person engaged in a similar business would have used under similar circumstances. This charge assumes that if what the defendant did, if the same was done by other persons engaged in the same business, whether they were ordinarily careful or prudent persons or not, then the defendant was guilty of no negligence, and the jury should return a verdict for the defendant. Travis v. L. N. R. Co., 183 Ala. 415, 62 So. 851; Sweet v. Birmingham, R. E. Co., 136 Ala. 166, 33 So. 886.
This charge, numbered 1, requested by defendant, was refused by the court:
"The court charges the jury that you cannot find for the plaintiff on account alone of the fact that plaintiff may have taken a drink of Whistle from a bottle with a bug in it."
It is true there are other allegations than those stated in this charge, which are necessary to be established to the reasonable satisfaction of the jury before plaintiff should recover. These necessary facts were clearly stated to the jury in written charges, given at defendant's request, numbered 9 and 10, and by the following part of the oral charge of the court:
"Under that state of pleadings the burden is on the plaintiff to reasonably satisfy you of the truth of the material allegations of the plaintiff's complaint. In other words, the burden is on the plaintiff to reasonably satisfy you from the evidence that he drank a bottle or a portion of a bottle of beverage that was bottled by the defendant company, and that he was made sick by it, and that his sickness was proximately caused by the negligence of the defendant, or its servants, agents, or employees, in allowing a foreign substance, alleged to have been a bug, or other foreign substance, to be in the bottle and thereby make him sick."
This charge, numbered 1, should have been given, as it contains a correct statement of the law; still its refusal will not cause a reversal of the case, as the rule of law was substantially and fairly given the jury in the court's oral charge, and in written charges given at the request of defendant. Section 5364, Code 1907, as amended Gen. Acts 1915, p. 815.
As we find no reversible error, the case is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. *Page 390