Hughs v. Miami Coca Cola Bottling Co.

• Decision Date: 05 December 1944
• Citation: 155 Fla. 299,19 So.2d 862
• Parties: HUGHS v. MIAMI COCA COLA BOTTLING CO.
• Court: Florida Supreme Court

19 So.2d 862

155 Fla. 299

HUGHS v. MIAMI COCA COLA BOTTLING CO.

Florida Supreme Court

December 5, 1944

Appeal from Circuit Court, Dade County; Marshall C wiseheart, judge.

E. F. P Brigham and L. J. Cushman, both of Miami, for appellants.

McKay Dixon & DeJarnette, of Miami, for appellee.

SEBRING, Justice.

Nat C. Hughs, Jr. a minor ten years of age, by next friend, sued the Miami Coca Cola Bottling Company to recover damages for injuries suffered by him when an unopened bottle of coca cola exploded while in his physical possession. The charge in the declaration is that the defendant carelessly and negligently bottled and placed on the general market for sale a bottle of coca cola which had been so highly and so dangerously charged with carbonated water and carbonic acid gas that the bottle exploded in the hands of the plaintiff while handled by him in an ordinary, prudent and careful manner.

In support of the declaration the plaintiff offered testimony that in April 1942, one Shanen owned and operated the Magic City Grocery Company in the southwest section of Miami. Mr. and Mrs. Hughs were regular customers at the store. Shanen carried coca cola for resale packed in cardboard cartons containing six bottles each. All such packaged coca cola was purchased from Miami Coca Cola Bottling Company, and was delivered by the bottler to the grocer on Monday, Thursday and Saturday of each work, between 9 and 10 o'clock in the forenoon. Delivery was made from the bottling plant by motor truck, the colored helper on the truck bringing the coca colas already packaged in six-bottle cartons from the truck into the store by means of a wheel barrow. At the direction of the grocer the packaged bottles were stacked by the employee of the Miami Coca Cola Bottling Company on the floor up against the cash counter in the store, eight to ten cartons high. Stacked in that location they were not near a refrigerator, stove or any other agency that would produce a change in temperature of the beverage. As the grocer enjoyed a brisk trade in the beverage, all old stock was virtually exhausted each time a new delivery was made. When purchasers in the store bought packaged coca colas they helped themselves from the pile by the cash counter. When customers ordered coca colas by telephone the clerk in the store who handled grocery orders would take the cartons from the pile and place them with the groceries for delivery.

In April, 1942, Shanen made grocery deliveries on phone orders, over a trade territory of approximately one by one and one-half miles in area. Deliveries were made by means of a panel body auto truck operated by a delivery boy. No deliveries were made on single orders; a great many orders were in the truck each time it left the store. When grocery orders were received for outside delivery the groceries would be packed in separate boxes by one of the store employees and placed in a convenient place in the store to await a truckload for the delivery boy. If cartoned coca colas were included in the order the cartons would be taken from the stack by the cash register and placed with the grocery orders for delivery to the customer. When the delivery boy was ready to go out on his route he would first load the boxes containing the grocery orders into the truck and then return for the coca colas.

Mrs. Hughs placed a week-end grocery order with Shanen on April 3, 1942, at about 3 o'clock in the afternoon. Included in the order was one carton of coca cola. The delivery truck from Magic City Grocery Company arrived at her home about an hour after she had placed the order. The delivery boy first brought from the truck to the kitchen of the Hughs home such fragile items as eggs and the carton of coca cola. He then brought into the kitchen the heavier articles ordered. Mrs. Hughs met the delivery boy at the door and took the packaged coca colas from him. She immediately placed the carton on the floor in a corner of the kitchen by her ice box. In that location it was not subject to any increase or decrease in temperature beyond that common to the rest of the house. After dinner that evening Mrs. Hughs removed five bottles of coca cola from the carton for consumption, taking the bottles out of the carton one at a time. She left the carton on the floor with one unopened bottle in it. The next morning (April 4, 1942) the carton containing the unopened bottle of coca cola still remained at the spot where she had placed it the day before.

On the morning of April 4, 1942, Mr. and Mrs. Hughs were making preparations to move from Miami to Griffin, Georgia. With this in view, Mr. Hughs was in the house engaged in packing dishes, blankets, bedding and other household articles in boxes to ship. At about 10:45 of that morning Mrs. Hughs left the house to go to a beauty parlor a few blocks from the home. Before leaving the house she gave her son permission to open a bottle of coca cola provided he would share it with his younger brother. Upon receiving such permission the son, who is the plaintiff here, went to the kitchen and lifted the remaining bottle of coca cola from the carton on the floor. As plaintiff walked across the room with the unopened bottle in his hand it exploded with considerable violence and pieces of broken glass were blown into plaintiff's face, causing injury to his eye.

Briefly stated, this is the testimony offered by plaintiff in behalf of his case. At the conclusion of the testimony the trial judge, on motion, directed a verdict for the defendant. From this ruling and the judgment entered thereon this appeal is taken. The question is whether the granting of the motion for directed verdict constituted reversible error.

Upon a motion for directed verdict made at the close of the plaintiff's case the evidence given on behalf of the plaintiff must be considered as true. Dempsey-Vanderbilt Hotel v. Huisman, 153 Fla. 800, 15 So.2d 903. For the purpose of the motion the moving party admits not only the facts adduced, but every conclusion favorable to his adversary fairly and reasonably inferable therefrom. Florida Motor Lines, Inc....