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Tenn.)

CRIGGER V. COCA-COLA BOTTLING CO.

155

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 CRIGGER v. COCA-COLA BOTTLING CO. pay a debt that he was arrested, but to pre- (Supreme Court of Tennessee. Oct. 1, 1915.) vent his removing the check and note in 1. Food 25INJURIOUS SUBSTANCES. question out of the jurisdiction of the court, The duty of one who prepares and puts on or in place thereof, giving bond to the court. the market, in bottles or sealed packages, foods, The purpose of the writ was to secure the drugs, beverages, medicines, or articles' inher

ently dangerous, to exercise care to see that jurisdiction of the court over the person of nothing unwholesome or injurious is contained the defendant so that he might be prevented in the bottle or package is not in the nature of from carrying the property in question be an implied warranty, and is based upon negliyond the jurisdiction of the court, or be com

gence. pelled by process of contempt to perform the Dig. $ 18; Dec. Dig. Om 25.]

[Ed. Note.-For other cases, see Food, Cent. decree of the court.

2. Food On 25 SALES INJURIOUS SUBIt has been held in this state that a stat

STANCES. ute (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 prop- preparation thereof, regardless of the privity of erty, prevent its transfer, and to subject it contract to any one injured for a failure to to the satisfaction of complainants judg- properly safeguard and perform such duty. ment, which can only be accomplished by Dig. § 18; Dec. Dig. Om 25.]

[Ed. Note.-For other cases, see Food, Cent. process of attachment for contempt, is not

3. FOOD 25-DELETERIOUS BEVERAGE imprisonment for debt. Judge McFarland

EVIDENCE. said:

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 [Ed. Note.-For other cases, see Food, Cent. the execution of a deed, or the surrender of Dig. $ 18; Dec. Dig. Ow25.] property by a trustee, etc., the order may be enforced by imprisonment, and such imprison- Certiorari to Court of Civil Appeals. ment is not imprisonment for debt.” Cresswell

Action by H. C. Crigger against the Cocaet al. v. Smith, 8 Lea, 699.

Cola Bottling Company. Judgment for deThis practice is not unlike the remedy we fendant, which was affirmed in the Court of are now enforcing under the ancient writ Civil Appeals, and plaintiff petitions for cerof ne exeat. The reasoning why the enforce- tiorari. Affirmed. ment of the one is not imprisonment for debt applies equally to the other.

King & Lanier, of Memphis, for plaintiff. [9, 10] The writ will not issue for de- Bell, Terry & Bell, and Caruthers Ewing, all mands which are uncertain or contingent.

of Memphis, for defendant. It will be applied to private rights with caution. Either the demand or its enforcement FANCHER, Judge. The plaintiff drank a must be of an equitable nature. The in- bottle of Coca-Cola, a beverage sold generally tended departure beyond the jurisdiction of on the market as wholesome and harmless. the court must be by positive allegations or In doing so he took into his mouth, and pårby facts, threats, or declarations evidencing tially swallowed, a decomposed mouse, which such intention, and that the right or demand caused him to become very sick, and he sues sought will be lost or recovery greatly en- for damages. The defendant does not make dangered by the defendant's departure. It the beverage, but buys it in barrels from the is not essential to allege an intent to avoid manufacturer and bottles it. jurisdiction. Gibson's Suits in Chancery, $8 The bottle in question was sold by defend864–867, and notes; 29 Cyc. 383–393, and ant to a local dealer and by him sold to plaincases cited.

tiff. The chancellor was therefore in error in The question presented is, whether a botdismissing this writ upon the motion. De- tling company engaged in bottling Coca-Cola,

*

a beverage made by another, warrants to the In the Augusta Brewing Company Case, ultimate consumer that its bottle contains the Supreme Court of Georgia stated the rule no injurious, harmful, or deleterious sub- to be: stance, or is the bottling company liable only “When a manufacturer makes, bottles, and for negligence, or the omission to use proper freshing and harmless, he is under a legal duty

a beverage represented to be recare in the work?

to see to it that in the process of bottling no The proof shows that the method used at foreign substance shall be mixed with the beverthe bottling plant is fully equal to the best. age which, if taken into the human stomach, The empty bottle is passed through vats of will be injurious.” strong caustic soda solution and then rinsed

It does not appear that the direct quesunder pressure with water as hot as the bot- tion was at issue in that case as to a wartle will stand, then inspected by the use of a ranty, regardless of negligence. Most of the strong electric light, then brushed out with a cases on the question show some negligence rapidly revolving brush and again rinsed; or omission of duty or care, and are based tke bottle is again inspected over a brilliant upon that idea. electric light, and then filled with Coca-Cola,

There are many authorities holding an using a fine strainer, when it is capped, and implied warranty to exist, as between seller finally inspected.

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 an ultimate consumer is, more properly found against plaintiff on that question. speaking, a duty one owes to the public not

The case is briefed here in support of the to put out articles to be sold upon the petition for certiorari, and by the defendant, markets for use injurious in their nature, of as to whether there is an implied warranty which the general public have not means of on the part of the Coca-Cola Bottling Com- inspection to protect themselves. This duty pany, which results in favor of the ultimate has been applied to manufacturers of drugs, consumer, regardless of any question of neg- foods, beverages, poisons, and other things ligence. The declaration, liberally treated, inherently dangerous. will admit the question, and the case must One of the leading cases on the subject is be determined upon that standard.

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. valed 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 fur[1] In the present case, we are to inquire a nishing unwholesome meat); Huset v. J. I. step further. Does this duty exist regardless Case Threshing Mach. Co., 120 Fed. 865, 57 of negligence, and is it in the nature of an C. C. A. 237, 61 L. R. A. 303; Wellington v. implied warranty? Some of the cases seem Downer Kerosene Oil Co., 104 Mass. 64 to so hold. The case of Jackson Coca-Cola (negligence by manufacturer in selling danBottling Co. v. Chapman (Miss.) 64 South. gerous article he knew to be an explosive); 791, 7 Neg. & Com. Cas. Ann. 112, note, seems Van Bracklin v. Fonda, 12 Johns (N. Y.) 468, to go to this extent, citing Watson v. Augusta 7 Am. Dec. 339 (negligence in sale of unBrewing Co., 124 Ga. 121, 52 S. E. 152, 1 L. wholesome provisions, but holding that venTenn.)

CRIGGER v. COCA-COLA BOTTLING CO.

157

and wholesome); Craft V. Parker (Mich.) | the market, in bottles or sealed packages, 21 L R. A. 139, note; Brown v. Marshall, 47 foods, drugs, beverages, medicines, or articles Mich. 576, 11 N. W. 392, 41 Am. Rep. 728 inherently dangerous owes a high duty to (opinion by Cooley, J., holding that a high the public, in the care and preparation of degree of care is required of a druggist, but such commodities, and that a liability will that actual negligence cannot be dispensed exist regardless of privity of contract to any with as a necessary element in liability when one injured for a failure to properly safemistake has occurred); Fleet v. Hollenkemp, guard and perform that duty. 13 B. Mon. (Ky.) 219, 56 Am. Dec. 563 (hold- 2. This liability is based on an omission of ing caveat venditor should apply to a drug- duty or an act of negligence, and the way gist in seeing that his drugs are what they should be left open for the innocent to esare pretended to be, and that he cannot es. cape. However exacting the duty or high cape liability on a pretext that it was an the degree of care to furnish pure foods, accidental or innocent mistake); Blood Balm beverages, and medicines, we believe with Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 5 Judge Cooley, as expressed in Brown V. L. R. A. 612, 20 Am. St. Rep. 324 (liability to Marshall, supra, that negligence is a necesultimate consumer for wrong of proprietor sary element in the right of action, and the of medicine in the prescription and direction better authorities have not gone so far as to as to dose); Weiser v. Holzman, 33 Wash. 87, dispense with actual negligence as a pre 73 Pac. 797, 99 Am. St. Rep. 932 (liability requisite to the liability. In fact, there is without regard to privity of contract for no logical basis of liability for personal inknowingly selling and delivering to another, jury without some negligent act or omission. who is injured thereby, an article intrinsical- [3] In the present case, the mouse may ly dangerous, without notice to purchaser of have gotten into the bottle by some unavoidintrinsic danger); Peters v. Jackson, 50 W. able accident, but proper inspection should Va. 644, 41 S. E. 190, 57 L. R. A. 428, 88 have disclosed the fact, and if in the light Am. St. Rep. 909 (druggist liable from in- of the finding by the jury it were fairly competency or negligence in selling to one inferable that the mouse was bottled up person wrong poisonous medicine, whereby at the Bottling Company plant, we would third person is injured); Farrell v. Man- consider it our duty to reverse the case, behattan Market Co., 198 Mass. 271, 84 N. E cause of the high duty resting on the de 481, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. fendant. But the jury was told to inquire 436, 15 Ann. Cas. 1076 (reviewing establish- whether the mouse was in the bottle when it ed English cases that hold there is no im- left the hands of this company, and, if so, plied condition or warranty that a food is fit whether its presence there was due to the to be eaten, unless sold by a dealer and the negligence of the company. The court sugfood is selected by him, and concluring gested to the jury the theory of the defendthat this is the true rule); Crocker v. ant that there was opportunity for malevBaltimore Dairy Lunch Co., 214 Mass. 177, olent persons to open this bottle and put the 100 N. E. 1078, Ann. Cas. 1914B, 884 (that mouse into it before or after it left the finding for plaintiff for injuries from what factory, and they should use their common might be ptomaine poisoning is not warrant sense as men in deciding the issue. In view ed without any evidence that the defendant of the extraordinary care shown to exist at was negligent in purchasing its food sup- the bottling plant and the verdict of the plies).

jury, it may be that this thing occurred withFrom a careful consideration of the sub- out the fault of the defendant. There are ject, and after mature thought, we are of sufficient inferences that may be drawn from opinion as follows:

the facts to sustain the finding. [2] 1. That one who prepares and puts on Affirmed.

Wherry did not notice the straps on her grip ANDERSON V. STATE. (No. 130.) until she got to Main and Markham streets. (Supreme Court of Arkansas. Sept. 27, 1915.) There she discovered that one of the straps

was unfastened and some of her clothing LARCENY Om 65 CONVICTION-SUFFICIENCY OF EVIDENCE.

was sticking out. She then suspected that 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.

Decennial Dig. Om she found the clothing was thrown around 65.]

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.

the suit case were securely fastened. The On December 25, 1913, Miss Annie Wherry porter (appellant) brought her the suit case was a passenger on a train coming from Til- or grip after reaching the Valley station, and lar to Little Rock. A Mr. King, at Tillar, he brought the same to her out of the buffet. intrusted her with a heavy gold watch, valu: The watch could not have been taken out of ed at $150, and requested her to have the the suit case without unfastening the straps ed at $150, and requested her to have the and lifting the clothing that was in the same cleaned for him when she arrived at

suit case. Little Rock. She occupied a Pullman coach on the journey, and in company with her

Upon substantially the above facts, as were a Mr. Henry and Miss Henry and Mr.

shown by the testimony, appellant was conDavidson. The only other persons in the

victed of the crime of grand larceny and coach were the appellant, who was the Pull- sentenced to three years imprisonment in

the state penitentiary. man porter, and the trainmaster.

Miss

The grounds of the motion for a new trial Wherry and Mr. Henry occupied the same seat, and during the journey Miss Wherry and contrary to the evidence; that the court

are: That the verdict is contrary to the law, took the gold watch from her suit case, and and contrary to the evidence; that the court. she and Mr. Henry were examining it. The erred in its general charge to the jury and appellant was sitting in a seat across the each paragraph thereof; that the court erred aisle behind them. While they were examin

in overruling defendant's objection to the ing the watch she looked towards the appel- testimony of Miss Annie Wherry as to the lant and observed him looking in the direc- conversation between her and Miss Henry. tion where she and Henry were examining (The conversation above referred to is nog the watch. In making the examination they set out in the motion itself nor is it contain

The court overheld the watch up, and it could have been ed in the bill of exceptions.) seen from the position where appellant was

ruled the motion, and appellant duly prose

cutes this appeal. located. While she and Henry were looking at the watch Henry told her she had Wallace Davis, Atty. Gen., and Jno. P. better put the watch up or the porter might Streepey, Asst. Atty. Gen., for the State. take it away from her. She placed the watch back in the box or small case and placed the WOOD, J. (after stating the facts as box under her clothing in her suit case. above). It is unnecessary to set forth the There were two straps on the suit case, and instructions. They are correct declarations she fastened one of these, and Henry the of law, and were applicable to the facts adother. Henry got off the train at Sweet duced in evidence. They conform to the Home. The suit case that contained the principles announced in many previous dewatch was in front of them after they had cisions of this court. looked at the watch and put it back in the The evidence was sufficient to sustain the case. From the time Miss Wherry exhibited verdict. It tended to show that Miss Wherry the watch to Henry and after she had put had a special ownership in the watch suffithe same back in the suit case the same was cient to sustain the allegations of ownership, not out of her sight long enough for anyone and that the watch was stolen by appellant to have opened it and taken the watch there in Pulaski county, Ark., on the 25th day of from until after they reached Sweet Home. December, 1913. 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 suitcase 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 | Fome, and delivered the same to Miss Wher

Ark.)

NASH V. STATE

159

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.

who had held him up. The money taken from Williams was found in Hilliard's pos

session, together with the bar check. NASH v. STATE. (No. 137.)

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-PAR

and that he was robbed at a point only 50 TICIPATION IN OTHER OFFENSES.

or 60 yards east of the place where Williams In a prosecution for robbery, where defend had been held up, but on the opposite side ant undertook to establish an alibi, evidence of the street. This witness saw Hilliard that other robberies committed at the same time and locality had been participated in by defend after his death, and recognized him as one of ant, was admissible upon the issue of his pres- the men who had robbed him, and he also ence at the time and his participation in the identified Nash as one of the robbers who robbery charged. [Ed. Note.-For other cases, see Criminal Williams, but he did not say that he recog

held him up. He saw three men holding up Law, Cent. Dig. 88 822–824; "Dec. Dig. Om nized appellant as one of them, although he 369.] 2. CRIMINAL LAW mm 369-EVIDENCE-OTHER did testify that he saw appellant in that OFFENSES.

vicinity that night. Guilt of one crime cannot be proved as a circumstance from which to infer guilt of an

A police officer named Whitlock testified other, where such proof is not offered to show that he was one of the officers who attempted motive, intent, or design, but is admissible to arrest the robbers, and while he was unwhere it tends in a material way to prove the able to identify appellant as one of the robcrime charged. [Ed. Note.-For other cases,

bers who fled upon the approach of the offither cases, see Criminal Law, Cent. Dig. $S 822–824; 'Dec. Dig. Om cers, he did testify that appellant had the 369,)

general size and resembled the man who was

with Hilliard. There was other evidence Appeal from Circuit Court, Pulaski Coun- tending to show that appellant and Hilliard ty; Robert J. Lea, Judge.

were intimate associates, and had been seen James Nash was convicted of robbery, and together on the night of the robberies. he appeals. Affirmed.

[1] Appellant saved numerous objections Wm. L. Moose, Atty. Gen., and John P. to the action of the court in admitting eviStreepey, Asst. Atty. Gen., for the State. dence tending to show that appellant had

participated in the robberies other than the SMITH, J. Appellant was indicted for the one charged in the indictment, and the adcrime of robbery, alleged to have been com- missibility of this evidence is the only quesmitted by taking $20 from the person of one tion raised upon this appeal. Appellant J. F. Williams. Upon his trial appellant was undertook to establish an alibi. Various witconvicted and sentenced to a term of seven nesses gave testimony, the effect of which years in the state penitentiary.

was to show that appellant could not have Williams testified that the robbery was been at the place of the robbery at the time committed near the corner of Seventh and of its commission. Arch Streets, in the city of Little Rock, on

In admitting proof of the other robberies the night of March 3d; that he was held up the court stated to the jury that such proof by three men, who took two $10 bills and could be considered only as bearing upon the some small change from his pocket and a question of defendant's presence at the time bar check issued by one of the saloons in Williams was robbed and of appellant's parthe city of Little Rock. After Williams had ticipation in that crime. 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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