Elledge v. Pepsi Cola Bottling Co. of Winston-Salem

113 S.E.2d 435 (1960)

252 N.C. 337

Carrie S. ELLEDGE v. PEPSI COLA BOTTLING COMPANY OF WINSTON-SALEM, NORTH CAROLINA.

No. 394.

Supreme Court of North Carolina.

April 6, 1960.

Buford T. Henderson, Winston-Salem, for plaintiff, appellant.

Deal, Hutchins & Minor, by John M. Minor, Winston-Salem, for defendant, appellee.

PER CURIAM.

The plaintiff has brought the action against Pepsi Cola Bottling Company of *436 Winston-Salem, North Carolina. The evidence shows the plaintiff bought the drink from Smitherman and Myers. Mr. Myers testified he bought all the Suncrest he ever had from the Pepsi Cola Bottling Company. It was delivered off a truck. "I suppose it was a Pepsi Cola truck but I don't know. The truck had a driver who wore a uniform, I think; it had `Pepsi Cola' on the uniform, I guess * * * That is what they usually wear."

Assuming the evidence is sufficient to warrant the inference the purchase was made from some Pepsi Cola Company, that, certainly, is as far as the evidence goes. The evidence should permit the inference the drink was bottled and sold by the Pepsi Cola Bottling Company of Winston-Salem, North Carolina. This it does not do.

Evidence of only one other instance of deleterious substance in Suncrest was offered. The plaintiff's husband discovered a small stick about one and one-half inches long that had the appearance of having been chewed. This drink also came from Smitherman and Myers.

The evidence offered at the trial was not sufficient to go to the jury and sustain a verdict, and the judgment of nonsuit is

Affirmed.