49 Wn.2d 625, ALBERT J. NIGRO, Respondent, v. COCA COLA BOTTLING, INC., Appellant

[No. 33723. Department Two.      Supreme Court      January 3, 1957.]

ALBERT J. NIGRO, Respondent, v. COCA COLA BOTTLING, INC.,
                                   Appellant.1

[1] SALES - REMEDIES OF BUYER - ACTIONS FOR BREACH OF WARRANTY - EVIDENCE - SUFFICIENCY - IDENTITY OF SUPPLIER OF BOTTLED GOODS. In an action against a bottling company by one who took a bottle of Coca Cola from a vending machine and became ill as the result of foreign matter contained in the bottle, the evidence was insufficient to support the judgment for the plaintiff, where there was no evidence that the bottle was supplied by the defendant or that the defendant had any connection with the vending machine.

Appeal from a judgment of the superior court for Pierce county, No. 126182, Cochran, J., entered January 31, 1956, upon findings in favor of the plaintiff, in an action for damages, tried to the court. Reversed.

Horace G. Geer, for appellant.

1 Reported in 305 P. (2d) 426.

[1] See 17 A. L. R. 672; 46 Am. Jur. 934.

 626    NIGRO v. COCA COLA BOTTLING     [49 Wn. (2d)

HILL, J. -

Only one question is presented, and that is whether the plaintiff established a cause of action.

The plaintiff proved that a bottle of Coca Cola taken from a vending machine at the United States naval station located at Tacoma, Washington, contained foreign matter which caused him to regurgitate and made him ill for a short period of time. He offered no evidence that the bottle of Coca Cola was supplied by the defendant, Coca Cola Bottling, Inc., a Washington corporation, or that the defendant had any connection whatsoever with the vending machine.

At the conclusion of the plaintiff's case, the defendant moved for a nonsuit. The motion was denied, and the defendant stood on its motion and presented no testimony. From a judgment for five hundred dollars in favor of the plaintiff, the defendant has appealed.

The trial court made a finding "That the coca-cola was supplied and was warranted to be wholesome by the Coca-Cola Bottling, Inc., a Washington corporation."

[1] We will assume arguendo that, by the fact of its being bottled goods offered for sale, there was an implied warranty that the Coca Cola was wholesome. See Lundquist v. Coca Cola Bottling Inc. (1953), 42 Wn. (2d) 170, 254 P. #2d) 488. There was, however, absolutely no evidence to support the finding that the defendant "supplied" the Coca Cola.

The plaintiff having failed to establish one of the essential elements of his case, the trial court erred in denying the defendant's motion for a nonsuit. The judgment is reversed, with instructions to grant the motion and to enter an order of dismissal.

DONWORTH, C. J., MALLERY, WEAVER, and OTT, JJ., concur.