Tate v. Mauldin

¶1 (concurring) : In addition to the several grounds mentioned in the leading opinion as sustaining the trial Judge in submitting the case to the jury and in refusing to grant defendant’s motion for a new trial, according to my view of the law governing the trial of the case, there is. another reason appearing from the record of the case which clearly supports the action of the trial Judge. When testimony was introduced tending to show that the defendant manufactured , the bottle of coca-cola in question and placed the same on the market for sale to be used as a food or drink, containing “parts of a rotten, decayed and poisonous carcass of a rat or mouse.” such testimony was sufficient to take the case to the jury on the question of such alleged negligence, independent of any further showing, for placing on sale a drink containing de *407 composed or putrid animal substance, such as the plaintiff described as contained in the drink in question, is a violation of the law of this State (Section 398, Vol 2, 1922 Code of South Carolina), which constitutes negligence per se. While I think the trial Judge properly permitted testimony to be introduced by the defendant by way of defense, to show that his plant was operated under modern methods and to show that precaution was taken to prevent any foreign substance from getting into the drinks,.and also that the trial Judge properly admitted testimony offered by or on behalf of the plaintiff tp controvert the contention of the defendant, still testimony to that effect by or on behalf of the plaintiff was not necessary to take the case to the jury on the question of negligence charged against the defendant in manufacturing and placing on the market the poisonous drink in question.