MOREMEN, Justice. On the 8th day of March 1950, appellee Day's car ran out of gas near a small store operated by Mrs. Leona Morgan. He went to the store which occupied one small room and asked Mrs. Morgan if he could get some gasoline. While she was looking for a container, he went to an icebox standing near the door, which was of the type that invited self-service, and removed a bottle of Orange Crush. He pulled the cap with the opener located on the side of the cooler, immediately turned the bottle up and drank about half of it. The contents smelled rotten and gave off a bad odor, and in this statement he was corroborated by Mrs. Morgan. He immediately became sick and regurgitated the offending liquid. A friend drove him home where his father advised him to go to the office of Dr. Duff, which he did. Dr. Duff testified that Day told him he was having some small pain, and an examination of his abdomen disclosed that he did have stiffness of the muscles of the abdomen. He prescribed an anti-spasmodic to relieve the cramp and a sedative to make him sleep. The following day he was given a routine recheck and, in the opinion of the doctor, was all right. Day testified that he was sick for about two weeks and had swelling. Appellee was a veteran who received a hundred per cent disability compensation from the government because he was suffering from nephritis or Bright's disease. He had been treated in several government hospitals.
He filed suit against appellant, East Kentucky Beverage Co., Inc., by which he sought damages for alleged negligence of appellant in manufacturing, transporting and selling, for resale, the bottle of Orange Crush. A verdict was returned in the sum of $1,500 and from judgment entered on that verdict this appeal is prosecuted.
At the close of appellee's testimony, a directed verdict was requested by appellant upon the ground that it had not been established appellant manufactured or sold the particular bottle which was sold to Day, and because the identity of the bottle had not been established.
We have, in a number of cases, held that a consumer may maintain an action directly against the bottler of beverage purchased from a retailer and found to contain deleterious foreign matter which, when consumed by the purchaser, caused illness. Seale v. Coca-Cola Bottling Works of Lexington, Ky., 297 Ky. 450, 179 S.W.2d 598; East Kentucky Beverage Co. v. Stumbo, 313 Ky. 66, 230 S.W.2d 106. But this right is predicated upon a showing that the bottling company actually sold and delivered the contaminated bottle to the retailer, and sufficient proof that there had been no opportunity to tamper with the bottle or its contents in the interim between its physical control of the bottle and that of the consumer. When these elements are established, the doctrine of res ipsa loquitur applies and the burden is placed upon the bottler to justify the occurrence. But, as it was stated in the case of Batson v. Western Union Telegraph Co., 5 Cir., 75 F.2d 154, 157, the doctrine of res ipsa loquitur applies 'only when the thing shown speaks of the negligence of the defendant, not merely of the occurrence of an accident.'
The competent testimony given by Mrs. Morgan reads as follows:
'Q. 10. Who delivered this to you? A. I don't know the man.
'Q. 11. You examined the bottle, did you, after that? A. Yes.
'Q. 12. What company was it that put out that bottle? (Objection) (Objection overruled) A. It was an Orange Crush by the Pepsi Cola Bottling Company. Comes the defendant and moves to exclude the answer of the witness.
'Motion overruled by the court.
'The defendant excepts to the ruling of the court.
'Q. 13. How do you get soft drinks and beverages? A. They come in cases.
'Q. 14. Does a salesman come? A. A truck comes each week.
'Q. 15. They are delivered on a truck? A. Yes.'
The examination was not pursued further by counsel for appellee, because apparently he was relying upon an admission made by counsel for the beverage company outside the court room to establish the alleged fact that appellant sold and delivered the bottle of Orange Crush to Leona Morgan. This proof showed that Mr. Barrett, who was identified as being one of the attorneys for appellant, came to the office of attorneys for appellee and requested permission to have the contents ...