Dalton Coca-Cola Bottling Co. v. Watkins

Paragraph 3 of the petition is as follows: "On or about the 2nd day of December, 1940, plaintiff purchased from the defendant, through a vending machine owned and operated by the defendant, at the place of business of Blue Ridge Spread Company in the City of Dalton, a bottle of coca-cola, a beverage made and bottled by the defendant for public consumption, and which the defendant represented to be wholesome, harmless, and refreshing. Petitioner drank said coca-cola from the bottle, and after doing so, discovered therein a large open safety pin. Said safety pin was pitted and corroded with an oxide of zinc and copper." The original answer of the defendant answered the above paragraph of the petition in paragraph 3 of the answer as follows: "In answer to paragraph 3, defendant admits that it owns and operates a vending machine at the plant of Blue Ridge Spread Company in the City of Dalton, from which it sells coca-cola, a beverage made and bottled by defendant for public consumption; that coca-cola is a wholesome, harmless, and refreshing beverage, and is so represented by defendant; defendant can neither admit nor deny that plaintiff purchased a bottle of coca-cola from *Page 795 said machine on the date alleged, because of lack of sufficient information; defendant denies the remaining allegations of said paragraph." The defendant amended its answer by striking all of paragraph 3, and substituting in lien thereof the following paragraph: "Defendant admits that on or about the 2nd day of December, 1940, defendant owned a vending machine at the place of business of Blue Ridge Spread Company in the City of Dalton. It admits that coca-cola is bottled by defendant for public consumption, and that said coca-cola is a wholesome, harmless, and refreshing beverage. The remaining allegations of said paragraph are denied." Under the evidence the jury was authorized to find that the defendant operated the vending machine or that the Blue Ridge Spread Company operated it. The charge discussed in division 2 of the majority opinion was erroneous, because the evidence did not authorize the application of the rule of res ipsa loquitur if the jury believed from the evidence that the plaintiff purchased the coca-cola from a vending machine operated by the spread company, for the reason that there was no evidence to exclude possible negligence of the spread company in handling the coca-cola after it left the possession of the defendant.Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762 (73 S.E. 1087); Albany Coca-Cola Bottling Co. v. Shiver (supra). This court can not assume that the jury found that the machine was operated by the defendant in view of the exception to the charge complained of. I express no opinion on any of the other questions ruled on.