Wilhelmenia Rockett v. Pepsi Cola Bottling

This is a products liability case involving plaintiff's drinking of a foreign substance in a bottle of Teem soda. Plaintiff obtained a jury verdict against defendant for $2,200.00. The trial Judge took away the judgment from the plaintiff by sustaining defendant's after trial motion for judgment in accordance with its motion for a directed verdict on the following ground stated in defendant's motion: ""1. The plaintiff did not show by a preponderance of the evidence that the defendant manufactured and sold the soda bottle in question."" The case was submitted to the jury under plaintiff's verdict directing instruction which required a finding that ""* * * defendant sold the bottle of Teem soda for human consumption * * *."" The plaintiff appeals. The narrow issue here is: Did the plaintiff prove that the defendant sold the particular bottle of Teem? This is one of the essential elements of plaintiff's cause of action. Keener v. Dayton Elec. Mfg. Co., Mo., 445 S.W.2d 362[2]. Williams v. Coca-Cola Bottling Co., Mo. App., 285 S.W.2d 53[5]. The trial Judge in his post-trial ruling held the plaintiff did not prove that the defendant sold the particular bottle of Teem. We agree.