Paul

Plaintiff appeals from a judgment entered upon a defense verdict in an action brought to recover damages for certain illnesses alleged to have resulted from his consumption of a portion of a bottle of Sun Drop Cola bottled by the defendant, which, when opened, contained a dead mouse. Plaintiff’s complaint consisted of two causes of action—one for negligence and one for breach of implied warranty.

The incident occurred on the afternoon of June 19, 1956, at the Mare Island Naval Shipyard. Plaintiff, in the presence of three coworkers, removed the bottle from a vending machine, uncapped it without shaking it, and took three or four swallows before noticing that the liquid had a peculiar taste. On inspection he discovered the mouse. He claims that as a result of this experience he suffered psychosomatic shock which in turn caused certain physical disorders, such as nausea and diarrhea, for some period of time.

The vending machine from which plaintiff procured the bottle was a standard type used throughout the country. It was maintained and supplied by defendant, whose employees serviced it once or twice a week and collected the money from it. The machine’s selective characteristics…