Asher v. Coca Cola Bottling Co.

• Decision Date: 01 December 1961
• Docket Number: No. 35045,35045
• Citation: 172 Neb. 855,112 N.W.2d 252
• Court: Nebraska Supreme Court
• Parties: Kale L. ASHER, Appellee, v. COCA COLA BOTTLING COMPANY, a Corporation, Appellant.

Page 252

112 N.W.2d 252

172 Neb. 855

Kale L. ASHER, Appellee, v. COCA COLA BOTTLING COMPANY, a Corporation, Appellant.

No. 35045.

Supreme Court of Nebraska.

Dec. 1, 1961.

Syllabus by the Court.

1. When a drink intended for human consumption is marketed in sealed containers, and such drink causes injury to a consumer, it is not necessary in a personal injury action to show that the container was within the physical control of a manufacturer in order to hold a manufacturer under the res ipsa loquitur doctrine.

2. The unexplained presence of a deleterious substance in a product manufactured and sold in a sealed container for human consumption is evidence of a breach of implied warranty that the product is wholesome and fit for human consumption.

3. A consumer can recover either on the theory of negligence or implied warranty from a manufacturer for injuries resulting from presence of deleterious substance in a product manufactured and sold for human consumption where it is shown that the deleterious substance was present when the product left the manufacturer's control.

4. Before a case can arise for the application of the principle of election of remedies there must be two co-existing remedies and those remedies must be so inconsistent that a party cannot logically choose one without renouncing the other.

Wright & Simmons, James R. Hancock, Scottsbluff, for appellant.

Lyman & Winner, Scottsbluff, for appellee.

Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

CARTER, Justice.

This is an action by plaintiff to recover damages sustained in drinking a bottle of Coca Cola in which a dead mouse was found. The jury returned a verdict for the plaintiff in the amount of $2,000. The defendant has appealed.

The evidence shows that plaintiff on June 10, 1959, entered the Eagle Cafe in Scottsbluff, Nebraska, and ordered a bottle of Coca Cola. The uncapped bottle of Coca Cola was served by a waitress with a straw inserted in the bottle. After drinking most of the contents through the straw he drank the balance from the bottle. He swallowed some foreign substance and upon examination discovered a dead mouse in the bottle. The plaintiff had suffered from an emotional gastritis for several years. There is evidence the plaintiff became ill upon discovery of the dead mouse. There is medical testimony that the incident aggravated plaintiff's condition for 30 days or more, causing abdominal pains during that period.

The petition is in the form of a suit on two causes of action, one on the res ipsa loquitur doctrine for negligence, the other on the theory of an implied warranty by the manufacturer on contract. The trial court submitted both theories to the jury with a direction that only one recovery could be had. It is the contention of defendant that the trial court erred in submitting either theory to the jury under the evidence.

The evidence shows that defendant was the manufacturer and bottler of Coca Cola. It delivered Coca Cola to the Eagle Cafe regularly twice a week in wholesale quantities. The cases of Coca Cola were stacked along the wall near a cooling machine. The bottles were transferred to the cooling machine as needed. When a bottle of Coca Cola was ordered it was taken from the machine, uncapped, and served by the waitress serving the customer. Other manufacturers of soft drinks made similar deliveries of their products which were stacked in the same area as the Coca Cola.

The evidence of the defendant shows the method of washing, rinsing, filling, capping, and inspecting the bottles, which inspection took place before and after filling. The capped bottles were then stored in defendant's warehouse facility until removed to fill orders. There is evidence that opportunity existed at the Eagle Cafe for others, including the deliverymen of competitors, to exchange bottles and to remove and replace the cap placed on the bottle by the manufacturer. The testimony is that the cap could be removed, a mouse inserted, and the bottle recapped by a prankster or competitor. An employee of the Eagle Cafe testified that no recapping appliance had ever been maintained in the cafe and that all bottles of Coca Cola were opened immediately before serving.

It is the contention of the defendant that the divided control of the Coca Cola bottle containing the mouse by the defendant and the Eagle Cafe precludes a recovery by plaintiff under the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur is that if a thing which causes injury is shown to be under the control and management of a defendant and the occurrence causing injury is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendant that such occurrence arose from want of proper care. Benedict v. Eppley Hotel Co., 159 Neb. 23, 65 N.W.2d 224. There appears to be some divergence of views in the holdings of other states as to the meaning of 'exclusive control' in applying the doctrine of res ipsa loquitur to a manufacturer of bottled goods sold to a retailer who in turn sold the deleterious product to the consumer. Since this is a case of first impression on that question, we necessarily look to the decisions of other states for the reasoning to be applied. The defendant contends for the rule announced in Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405, 158 S.W.2d 721, 725, 171 A.L.R 1200, holding that in order for a plaintiff to recover in such a case 'it must be made to appear, by a clear preponderance of the evidence, that there has been no such divided or intervening control of the bottle as to afford any reasonable opportunity for it or its contents to have been tampered with by another after it left the possession or control of the defendant or its agents.' See, also, Jordan v. Coca Cola Bottling Co. of Utah, 117 Utah 578, 218 P.2d 660, 52 A.L.R.2d 108; Williams v. Paducah Coca Cola Bottling Co., 343 Ill.App. 1, 98 N.E.2d 164; Coca-Cola Bottling Co. of Jonesboro v. Misenheimer, 222 Ark. 581, 261 S.W.2d 775.

The plaintiff relies upon a line of cases holding that the doctrine of res ipsa loquitur is applicable and raises an inference or presumption of negligence on the part of the manufacturer or bottler of a beverage which, when sold in a bottle, can, or other sealed container, contains a foreign substance. Eisenbeiss v. Payne, 42 Ariz. 262, 25 P.2d 162; Beaumont Coca Cola Bottling Co. v. Guillot (Tex.Civ.App.), 222 S.W.2d 141; Crystal Coca-Cola Bottling Co. v. Cathey, 83 Ariz. 163, 317 P.2d...