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writ was not to compel the defendant to pay [cree will be entered in this court reversing a debt, but in order to prevent him from the decree of the chancellor and rendering removing personal property on his person or judgment against defendants for the sum within his control from the jurisdiction of of $2,890, as prayed for in the bill, which the court without first giving bond, the prop- will be credited on the unpaid notes for purerty held by him being a certified check and chase money, and in case this cannot be a note payable by complainants upon which done, then this amount may be recovered they were entitled to a credit of $2,880. The against defendants and their sureties on the note was negotiable, and if defendant were al- bond which the defendants executed in the lowed to carry it beyond the jurisdiction of the case. court and deliver it to an innocent purchaser, the remedy of complainants would have been lost. It was not therefore to compel him to pay a debt that he was arrested, but to prevent his removing the check and note in question out of the jurisdiction of the court, or in place thereof, giving bond to the court. The purpose of the writ was to secure the jurisdiction of the court over the person of the defendant so that he might be prevented from carrying the property in question beyond the jurisdiction of the court, or be compelled by process of contempt to perform the

decree of the court.

CRIGGER v. COCA-COLA BOTTLING CO. (Supreme Court of Tennessee. Oct. 1, 1915.) 1. FOOD 25-INJURIOUS SUBSTANCES.

The duty of one who prepares and puts on the market, in bottles or sealed packages, foods, drugs, beverages, medicines, or articles inherently dangerous, to exercise care to see that nothing unwholesome or injurious is contained in the bottle or package is not in the nature of an implied warranty, and is based upon negli[Ed. Note.-For other cases, see Food, Cent. Dig. & 18; Dec. Dig. 25.]

gence.

2. FOOD 25 SALES
STANCES.

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INJURIOUS SUB

It has been held in this state that a statute (Shannon's Code, §§ 6092, 6093) giving One who prepares and puts on the market, the chancery court jurisdiction upon bill fil- in bottles or sealed packages, foods, drugs, beved by the complainant to compel a judg-ble for breach of a duty to the public in the erages, or articles inherently dangerous, is liament debtor to discover any specific property, prevent its transfer, and to subject it to the satisfaction of complainants' judgment, which can only be accomplished by process of attachment for contempt, is not imprisonment for debt. Judge McFarland

said:

preparation thereof, regardless of the privity of
contract to any one injured for a failure to
properly safeguard and perform such duty.
Dig. § 18; Dec. Dig. 25.]
[Ed. Note.-For other cases, see Food, Cent.

3. FOOD 25 - DELETERIOUS BEVERAGE
EVIDENCE.

In an action for damages for an illness "The court may imprison him, not because he caused by swallowing a decomposed mouse in a is unfortunately unable to pay his debts, but bottle of Coca-Cola purchased from a local dealbecause he willfully refuses to obey the lawful er to whom it had been sold by a bottling comorders of the court. In all other cases, when pany, evidence held to sustain a finding that the the court, in the exercise of rightful jurisdic-bottling company was not at fault. tion, orders specific things to be done, such as the execution of a deed, or the surrender of property by a trustee, etc., the order may be enforced by imprisonment, and such imprisonment is not imprisonment for debt." Cresswell et al. v. Smith, 8 Lea, 699.

This practice is not unlike the remedy we are now enforcing under the ancient writ of ne exeat. The reasoning why the enforcement of the one is not imprisonment for debt applies equally to the other.

[9, 10] The writ will not issue for demands which are uncertain or contingent. It will be applied to private rights with caution. Either the demand or its enforcement must be of an equitable nature. The intended departure beyond the jurisdiction of the court must be by positive allegations or by facts, threats, or declarations evidencing such intention, and that the right or demand sought will be lost or recovery greatly endangered by the defendant's departure. It is not essential to allege an intent to avoid jurisdiction. Gibson's Suits in Chancery, §§ 864-867, and notes; 29 Cyc. 383-393, and cases cited.

[Ed. Note.-For other cases, see Food, Cent. Dig. § 18; Dec. Dig. 25.]

Certiorari to Court of Civil Appeals.

Action by H. C. Crigger against the CocaCola Bottling Company. Judgment for defendant, which was affirmed in the Court of Civil Appeals, and plaintiff petitions for certiorari. Affirmed.

King & Lanier, of Memphis, for plaintiff. Bell, Terry & Bell, and Caruthers Ewing, all of Memphis, for defendant.

FANCHER, Judge. The plaintiff drank a bottle of Coca-Cola, a beverage sold generally on the market as wholesome and harmless. In doing so he took into his mouth, and partially swallowed, a decomposed mouse, which caused him to become very sick, and he sues for damages. The defendant does not make the beverage, but buys it in barrels from the manufacturer and bottles it.

The bottle in question was sold by defendant to a local dealer and by him sold to plaintiff.

The question presented is, whether a botDe-tling company engaged in bottling Coca-Cola,

The chancellor was therefore in error in dismissing this writ upon the motion.

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The proof shows that the method used at the bottling plant is fully equal to the best. The empty bottle is passed through vats of strong caustic soda solution and then rinsed under pressure with water as hot as the bottle will stand, then inspected by the use of a strong electric light, then brushed out with a rapidly revolving brush and again rinsed; the bottle is again inspected over a brilliant electric light, and then filled with Coca-Cola, using a fine strainer, when it is capped, and finally inspected.

In the Augusta Brewing Company Case, the Supreme Court of Georgia stated the rule to be:

"When a manufacturer makes, bottles, and freshing and harmless, he is under a legal duty sells. * * * a beverage represented to be re

to see to it that in the process of bottling no foreign substance shall be mixed with the beverage which, if taken into the human stomach, will be injurious."

It does not appear that the direct question was at issue in that case as to a warranty, regardless of negligence. Most of the cases on the question show some negligence or omission of duty or care, and are based upon that idea.

There are many authorities holding an implied warranty to exist, as between seller and buyer of articles to be used for a The trial judge charged the jury on the specific purpose, that such articles are proptheory that if the defendant was free from er and suitable for the use to which they negligence in the bottling of the beverage are to be applied. But we see no reason or there was no liability. The jury found in principle upon which a warranty might run favor of the defendant, and judgment was with an article for consumption like a waraccordingly entered. The Court of Civil Ap-ranty of title running with land. We think peals affirmed on the ground that the declara- the real ground of liability of the seller to tion averred negligence and the jury had found against plaintiff on that question.

The case is briefed here in support of the petition for certiorari, and by the defendant, as to whether there is an implied warranty on the part of the Coca-Cola Bottling Company, which results in favor of the ultimate consumer, regardless of any question of negligence. The declaration, liberally treated, will admit the question, and the case must be determined upon that standard.

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 not means of inspection to protect themselves. This duty has been applied to manufacturers of drugs, foods, beverages, poisons, and other things inherently dangerous.

One of the leading cases on the subject is Thomas v. Winchester, 6 N. Y. (2 Selden) In the case recently determined by this 397, 57 Am. Dec. 455. That case is referred Court of Boyd v. Coca-Cola Bottling Works, to in many more recent opinions. A manu177 S. W. 80, opinion by Mr. Justice Green, facturing druggist was held liable for neglithe defendant was held liable to the ultimate gently putting up, labeling, and selling as consumer for injuries from drinking a bottle and for the extract of dandelion, a simple of Cola-Cola in which was contained a cigar and harmless medicine, a jar of the extract stub. The bottle in that case was bought of belladonna, which is a deadly poison, from an intermediate dealer, to whom the de- whereby the plaintiff was Injured, on the fendant manufacturer had sold it, and it was ground of a breach of a public duty, and held that want of contract or privity between that this was the result whether the injured defendant and the person injured constituted person is an immediate customer of defendno defense. It was determined in that case ant or not. Negligence was the basis of that beverages fall within the class of arti- liability in that case, as it was in most cases cles such as foods and medicines, where a lia-of this nature. See notes 57 Am. Dec. (Extra bility may exist upon the ground that one Ann.) 568; Salmon v. Libby, 219 Ill. 421, 76 placing upon the market such products in N. E. 573; Tomlinson v. Armour, 75 N. J. L. sealed bottles assumes a duty to the general 748, 70 Atl. 314, 19 L. R. A. (N. S.) 923 public of exercising care to see that nothing (negligence in preparation of canned meat); unwholesome or injurious is contained in the note to McQuaid v. Ross (Wis.) 22 L. R. A. bottle. For a negligent breach of this duty 195; Bishop v. Weber, 139 Mass. 411, 1 N. the defendant was liable. E. 154, 52 Am. Rep. 715 (negligence in furnishing unwholesome meat); Huset v. J. I. Case Threshing Mach. Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303; Wellington v. Downer Kerosene Oil Co., 104 Mass. 64 (negligence by manufacturer in selling dangerous article he knew to be an explosive); Van Bracklin v. Fonda, 12 Johns (N. Y.) 468, 7 Am. Dec. 339 (negligence in sale of unwholesome provisions, but holding that ven

[1] In the present case, we are to inquire a step further. Does this duty exist regardless of negligence, and is it in the nature of an implied warranty? Some of the cases seem to so hold. The case of Jackson Coca-Cola Bottling Co. v. Chapman (Miss.) 64 South. 791, 7 Neg. & Com. Cas. Ann. 112, note, seems to go to this extent, citing Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152, 1 L.

foods, drugs, beverages, medicines, or articles inherently dangerous owes a high duty to the public, in the care and preparation of such commodities, and that a liability will exist regardless of privity of contract to any one injured for a failure to properly safeguard and perform that duty.

2. This liability is based on an omission of duty or an act of negligence, and the way should be left open for the innocent to es

the degree of care to furnish pure foods, beverages, and medicines, we believe with Judge Cooley, as expressed in Brown v. Marshall, supra, that negligence is a necessary element in the right of action, and the better authorities have not gone so far as to dispense with actual negligence as a prerequisite to the liability. In fact, there is no logical basis of liability for personal injury without some negligent act or omission.

and wholesome); Craft v. Parker (Mich.) | the market, in bottles or sealed packages, 21 L. R. A. 139, note; Brown v. Marshall, 47 Mich. 576, 11 N. W. 392, 41 Am. Rep. 728 (opinion by Cooley, J., holding that a high degree of care is required of a druggist, but that actual negligence cannot be dispensed with as a necessary element in liability when mistake has occurred); Fleet v. Hollenkemp, 13 B. Mon. (Ky.) 219, 56 Am. Dec. 563 (holding caveat venditor should apply to a druggist in seeing that his drugs are what they are pretended to be, and that he cannot escape. cape. However exacting the duty or high cape liability on a pretext that it was an accidental or innocent mistake); Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 5 L. R. A. 612, 20 Am. St. Rep. 324 (liability to ultimate consumer for wrong of proprietor of medicine in the prescription and direction as to dose); Weiser v. Holzman, 33 Wash. 87, 73 Pac. 797, 99 Am. St. Rep. 932 (liability without regard to privity of contract for knowingly selling and delivering to another, who is injured thereby, an article intrinsically dangerous, without notice to purchaser of intrinsic danger); Peters v. Jackson, 50 W. Va. 644, 41 S. E. 190, 57 L. R. A. 428, 88 Am. St. Rep. 909 (druggist liable from incompetency or negligence in selling to one person wrong poisonous medicine, whereby third person is injured); Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E 481, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436, 15 Ann. Cas. 1076 (reviewing established English cases that hold there is no implied condition or warranty that a food is fit to be eaten, unless sold by a dealer and the food is selected by him, and concluding that this is the true rule); Crocker Crocker v. Baltimore Dairy Lunch Co., 214 Mass. 177, 100 N. E. 1078, Ann. Cas. 1914B, 884 (that finding for plaintiff for injuries from what might be ptomaine poisoning is not warranted without any evidence that the defendant was negligent in purchasing its food supplies).

From a careful consideration of the subject, and after mature thought, we are of opinion as follows:

[2] 1. That one who prepares and puts on

[3] In the 'present case, the mouse may have gotten into the bottle by some unavoidable accident, but proper inspection should have disclosed the fact, and if in the light of the finding by the jury it were fairly inferable that the mouse was bottled up at the Bottling Company plant, we would consider it our duty to reverse the case, because of the high duty resting on the defendant. But the jury was told to inquire whether the mouse was in the bottle when it left the hands of this company, and, if so, whether its presence there was due to the negligence of the company. The court suggested to the jury the theory of the defendant that there was opportunity for malevolent persons to open this bottle and put the mouse into it before or after it left the factory, and they should use their common sense as men in deciding the issue. In view of the extraordinary care shown to exist at the bottling plant and the verdict of the jury, it may be that this thing occurred without the fault of the defendant. There are sufficient inferences that may be drawn from the facts to sustain the finding.

Affirmed.

ANDERSON v. STATE. (No. 130.) (Supreme Court of Arkansas. Sept. 27, 1915.)

LARCENY

Wherry did not notice the straps on her grip until she got to Main and Markham streets. There she discovered that one of the straps was unfastened and some of her clothing 65 CONVICTION-SUFFICIENCY She then suspected that was sticking out. Evidence in a prosecution for grand lar- the watch had been taken, and on reaching ceny held sufficient to sustain a conviction. her home discovered that it had been. When [Ed. Note.-For other cases, see Larceny, she opened the suit case after reaching home Century Dig. § 160; Decennial Dig. she found the clothing was thrown around 65.]

OF EVIDENCE.

and upset. When she put the watch in her

Appeal from Circuit Court, Pulaski Coun- suit case she put it under the clothing, and ty; Robert J. Lea, Judge.

the clothing was folded, and there was then

B. Anderson was convicted of grand lar- no clothing protruding, and both straps to ceny, and he appeals. Affirmed.

On December 25, 1913, Miss Annie Wherry was a passenger on a train coming from Tillar to Little Rock. A Mr. King, at Tillar, intrusted her with a heavy gold watch, valued at $150, and requested her to have the

the suit case were securely fastened. The

porter (appellant) brought her the suit case or grip after reaching the Valley station, and The watch could not have been taken out of he brought the same to her out of the buffet. the suit case without unfastening the straps and lifting the clothing that was in the

suit case.

sentenced to three years imprisonment in the state penitentiary.

same cleaned for him when she arrived at Little Rock. She occupied a Pullman coach Upon substantially the above facts, as on the journey, and in company with her were a Mr. Henry and Miss Henry and Mr. shown by the testimony, appellant was conwere a Mr. Henry and Miss Henry and Mr.victed of the crime of grand larceny and Davidson. The only other persons in the coach were the appellant, who was the Pullman porter, and the trainmaster. Miss Wherry and Mr. Henry occupied the same seat, and during the journey Miss Wherry took the gold watch from her suit case, and she and Mr. Henry were examining it. The appellant was sitting in a seat across the aisle behind them. While they were examin

The grounds of the motion for a new trial are: That the verdict is contrary to the law, and contrary to the evidence; that the court erred in its general charge to the jury and each paragraph thereof; that the court erred in overruling defendant's objection to the testimony of Miss Annie Wherry as to the conversation between her and Miss Henry. set out in the motion itself nor is it contain(The conversation above referred to is not set out in the motion itself nor is it contained in the bill of exceptions.) The court overed in the bill of exceptions.) The court overruled the motion, and appellant duly prosecutes this appeal.

Wallace Davis, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

WOOD, J. (after stating the facts as above). It is unnecessary to set forth the instructions. They are correct declarations of law, and were applicable to the facts adduced in evidence. They conform to the principles announced in many previous decisions of this court.

ing the watch she looked towards the appellant and observed him looking in the direction where she and Henry were examining the watch. In making the examination they held the watch up, and it could have been seen from the position where appellant was located. While she and Henry were looking at the watch Henry told her she had better put the watch up or the porter might take it away from her. She placed the watch back in the box or small case and placed the box under her clothing in her suit case. There were two straps on the suit case, and she fastened one of these, and Henry the other. Henry got off the train at Sweet Home. The suit case that contained the watch was in front of them after they had looked at the watch and put it back in the case. From the time Miss Wherry exhibited the watch to Henry and after she had put the same back in the suit case the same was not out of her sight long enough for anyone to have opened it and taken the watch therefrom until after they reached Sweet Home. There Henry debarked from the coach, and The jury were warranted in finding from at that place the appellant asked Miss Wherry the testimony of Miss Wherry that no one whether she was going to get off at the had an opportunity to take the watch from Union or the Valley station. She told him her suit case between Tillar and Sweet that she was going to debark at the Union Home; that the watch must have been taken station, but later she concluded to get off between Sweet Home and the Valley station at the Valley station. Appellant then took at Little Rock, where Miss Wherry debarkcharge of her grip, and also the suit case of ed; that the appellant took charge of the another lady who was on the same coach, suit case when the train reached Sweet and carried them out of the coach. Miss Home, and delivered the same to Miss Wher

The evidence was sufficient to sustain the verdict. It tended to show that Miss Wherry had a special ownership in the watch sufficient to sustain the allegations of ownership, and that the watch was stolen by appellant in Pulaski county, Ark., on the 25th day of December, 1913.

ry at the Valley station; that she had posses- his hands, and was shot and killed by the sion of the suit case from that time until she officers when he refused to do so. Williams arrived at home, and then discovered that recognized Hilliard as one of the men who the watch had been stolen. had robbed him, and after appellant's arrest The judgment is correct, and it is therefore he also recognized him as one of the men affirmed.

NASH v. STATE. (No. 137.)

who had held him up. The money taken from Williams was found in Hilliard's possession, together with the bar check.

A witness named Schuh testified that he

(Supreme Court of Arkansas. Sept. 27, 1915.) was one of the men who had been held up,

1. CRIMINAL LAW 369-EVIDENCE-PARTICIPATION IN OTHER OFFENSES.

In a prosecution for robbery, where defendant undertook to establish an alibi, evidence that other robberies committed at the same time and locality had been participated in by defendant, was admissible upon the issue of his presence at the time and his participation in the robbery charged.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. 369.]

2. CRIMINAL LAW

OFFENSES.

369-EVIDENCE-OTHER

Guilt of one crime cannot be proved as a circumstance from which to infer guilt of another, where such proof is not offered to show motive, intent, or design, but is admissible where it tends in a material way to prove the crime charged.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. 369,1

Appeal from Circuit Court, Pulaski County; Robert J. Lea, Judge.

James Nash was convicted of robbery, and he appeals. Affirmed.

Wm. L. Moose, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

SMITH, J. Appellant was indicted for the crime of robbery, alleged to have been committed by taking $20 from the person of one J. F. Williams. Upon his trial appellant was convicted and sentenced to a term of seven years in the state penitentiary.

and that he was robbed at a point only 50 or 60 yards east of the place where Williams had been held up, but on the opposite side of the street. This witness saw Hilliard after his death, and recognized him as one of the men who had robbed him, and he also identified Nash as one of the robbers who held him up. He saw three men holding up Williams, but he did not say that he recognized appellant as one of them, although he did testify that he saw appellant in that vicinity that night.

A police officer named Whitlock testified that he was one of the officers who attempted to arrest the robbers, and while he was unable to identify appellant as one of the robbers who fled upon the approach of the officers, he did testify that appellant had the general size and resembled the man who was with Hilliard. There was other evidence tending to show that appellant and Hilliard were intimate associates, and had been seen together on the night of the robberies.

[1] Appellant saved numerous objections to the action of the court in admitting evidence tending to show that appellant had participated in the robberies other than the one charged in the indictment, and the admissibility of this evidence is the only question raised upon this appeal. Appellant undertook to establish an alibi. Various witnesses gave testimony, the effect of which was to show that appellant could not have been at the place of the robbery at the time of its commission.

In admitting proof of the other robberies the court stated to the jury that such proof could be considered only as bearing upon the question of defendant's presence at the time Williams was robbed and of appellant's participation in that crime.

Williams testified that the robbery was committed near the corner of Seventh and Arch Streets, in the city of Little Rock, on the night of March 3d; that he was held up by three men, who took two $10 bills and some small change from his pocket and a bar check issued by one of the saloons in the city of Little Rock. After Williams had been robbed one of the robbers said to him, The three robberies committed on the night "Beat it; don't stop, turn around, or look of March 3d were committed within a few back;" and Williams walked about 20 steps to hundred yards of each other, and the last an electric light post, and stopped behind it. occurred not more than an hour after the He stood there and watched the robbers walk commission of the first, and all were commitdown Seventh street, and while standing ted by three men, one of whom was Hilliard, there he saw three officers and told them whose participation in each instance is reathat he had been robbed, and the officers sonably certain. Schuh identified Hilliard as replied that another man had been robbed one of the men who had robbed him, but only a minute before, and as Williams and could not positively identify appellant as the officers started down Seventh street they another. Neither could the officers who killsaw robbers holding up still another man. ed Hilliard, while the third man was being Upon the approach of the officers all of the robbed, positively identify appellant as one robbers fled except one named Hilliard, who of the three robbers participating in that was commanded by the officers to throw up crime, although they did testify that his

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