Ashland Coca-Cola Bottling Co. v. Byrne

• Decision Date: 22 May 1953
• Docket Number: COCA-COLA
• Citation: 258 S.W.2d 475
• Parties: ASHLANDBOTTLING CO. v. BYRNE.
• Court: United States State Supreme Court — District of Kentucky

Page 475

258 S.W.2d 475

ASHLAND COCA-COLA BOTTLING CO. v. BYRNE.

Court of Appeals of Kentucky.

May 22, 1953.

Dysard & Dysard, Ashland, for appellant.

Oscar Sammons, Greenup, for appellee.

CULLEN, Commissioner.

Willie Byrne recovered judgment against the Ashland Coca-Cola Bottling Company in the amount of $1,000, for personal injuries alleged to have been sustained as a result of drinking from a bottle of Coca-Cola in which there were portions of the body of a mouse. On appeal, the company contends that the integrity of the bottle was not sufficiently established to warrant application of the doctrine of res ipsa loquitur, and there being no positive proof of the company's negligence, a directed verdict should have been given for the company.

The bottle of Coca-Cola was purchased by Byrne in a small grocery store in Greenup, and was opened and consumed on the premises, in the presence of a clerk. The bottle had been in a lift-top cooler in the back of the main storeroom, and Byrne had selected the bottle himself by going to the cooler and removing it. It appears from the evidence that it was a common practice for customers to serve themselves in this way.

It is conceded that the storekeeper purchased all of his Coca-Cola supply from the defendant company, and the evidence was that the supply was replenished weekly. There was no evidence as to the time the bottle in question was delivered to the store, but the inference is that it had been in the store less than a week.

When Coca-Colas were delivered to the store, they were stacked in cases in a back corner of the main storeroom. Some eight or ten other brands of soft drinks were purchased by the storekeeper, from different companies, and when they were delivered the truck drivers would stack the cases in the same corner where the Coca-Cola cases were.

The store was operated by a manager and one clerk. At times only one of the two would be in the store. While both testified that they never saw anyone tamper with the Coca-Cola bottles, they admit that it was the practice for customers to serve themselves to soft drinks. The clerk testified that it was possible for people to walk back where the soft drink cases were stacked. The manager said there were occasions on which a customer would go back and get a soft drink when he was waiting on another customer in the front of the store.

The facts in this case, concerning integrity of the bottle, cannot be distinguished from those in East Kentucky Beverage Co. v. Stumbo, 313 Ky. 66, 230 S.W.2d 106. In that case, indicating our approval of the reasoning employed in Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405, 158 S.W.2d 721, 171 A.L.R. 1200, we held that...