Berkens v. Denver Coca-Cola Bottling Co.

• Decision Date: 09 February 1942
• Docket Number: 15009.
• Citation: 122 P.2d 884,109 Colo. 140
• Parties: BERKENS v. DENVER COCA-COLA BOTTLING CO.
• Court: Colorado Supreme Court

122 P.2d 884

109 Colo. 140

BERKENS v. DENVER COCA-COLA BOTTLING CO.

No. 15009.

Supreme Court of Colorado, En Banc.

February 9, 1942

Rehearing Denied March 2, 1942.

Error to District Court, City and County of Denver; Robert W Steele, Judge.

Action by Arnold Berkins against the Denver Coca-Cola Bottling Company to recover for injuries sustained when a bottle of beverage exploded. To review a judgment of dismissal plaintiff brings error.

Affirmed.

HILLIARD J., dissenting.

Louis E. Gelt and Albert T. Frantz, both of Denver, for plaintiff in error.

Ivor O Wingren and Earle F. Wingren, both of Denver, for defendant in error.

JACKSON Justice.

This action was instituted in the district court of the City and County of Denver to recover damages for personal injuries. Plaintiff in his complaint alleged that in June, 1940, he purchased from defendant a number of bottles of coca-cola which he placed in a portable refrigerator; that he later took one of the bottles therefrom, and while attempting to open it for a customer by removing the cap with a bottle opener, the bottle exploded throwing a piece of glass violently against the middle finger of his right hand, causing the injury of which complaint is made; that said injury was the proximate result of the negligence of defendant in bottling the contained beverage under excessive gas pressure, rendering the bottles containing it dangerous to handle; that defendant sent plaintiff to its physician for care and attention and paid his hospital bills incurred in connection therewith. Defendant, in its answer, admits this latter allegation.

On the day of the trial and after a jury had been selected, impaneled and sworn, plaintiff moved for an order, 'that the court submit to the jury the sole question of the measure of damages and nothing else'. The motion was overruled. Thereafter, and at the close of plaintiff's case, a motion for nonsuit, interposed by defendant, was granted, and concurrently therewith judgment of dismissal was duly entered.

Plaintiff presents the case here for review by writ of error, asking that the writ be made a supersedeas and operate accordingly. In compliance with his formal request, we have elected to finally determine the cause on the supersedeas application.

The record discloses that at the time of the accident plaintiff was twenty-three years old; that on June 15, 1940, and for some time prior thereto, he was engaged in retailing coca-cola and other cold soft drinks, sandwiches, ice cream, candy and similar products by peddling them from his truck in a certain downtown district in Denver; that he bought his coca-cola from defendant, getting his other supplies elsewhere; that this business netted him an average of about $3.50 per day; that about 9 a. m. June 14, 1940, he purchased two cases of coca-cola from defendant, each case containing twenty-four bottles; that he sold three-fourths of this supply on that day and took the unsold dozen bottles to his home; that the next day, June 15, at about 1:30 p. m., he started on his rounds with these and his other supplies, and about 3 p. m. having a customer for coca-cola, he removed a bottle from his truck and started to open it in the usual manner, holding the bottle in his left hand and applying a bottle opener to the cap with even pressure of his right hand, when a noise--described by plaintiff as a 'pop'--occurred and the upper portion of the neck of the bottle with the cap still attached broke off and hit the middle finger of his right hand, injuring it severely and causing considerable hemorrhage. The fragment of bottle was later picked up three or four feet away, to the right of plaintiff. After his customer had put a temporary bandage on the injured finger, plaintiff jumped into his car and drove to the place of business of defendant where its plant foreman looked at the finger and then sent him to a Dr. Gillen. Dr. Gillen was not at home at the time and his secretary sent plaintiff to a hospital where Dr. Casey treated the wound by applying a local anaesthetic, taking a few stitches and placing the finger in a splint. The same afternoon, after this treatment plaintiff made a few collections and sold a few sandwiches, but, as he testified, he was not able to use the injured hand for about three weeks thereafter.

Plaintiff testified that he had a refrigerator in the bottom of his truck consisting of a large, heavy, galvanized wash tub about one foot deep and thirty inches wide in which cracked ice was placed for the purpose of cooling the beverages. The bottles were placed upright and kept fairly snug, replacement being made whenever withdrawals amounted to eight or ten bottles. He further testified that the particular dozen coca-cola bottles from which the one, the subject of this suit, was taken were allowed to remain in their original case until about 1:30 p. m. June 15th, at which time he took them out of the case and placed them in the refrigerator in his truck that he had about forty bottles in this receptacle, which contained no separators, and that the bottles simply stood baside each other; that when he drove around in his car they would rub together; that he had travelled about a mile when he came to the place where he sold the bottle in question; that June 15th was a warm day, the temperature being between seventy-five and eighty degrees; that the bottle of coca-cola which he produced for sale at 3 p. m. and which broke...