Beuttenmuller v. Vess Bottling Co. of St. Louis

• Citation: 447 S.W.2d 519
• Decision Date: 08 December 1969
• Docket Number: No. 1,No. 54373,54373,1
• Parties: Patricia Rose BEUTTENMULLER, an Infant, by Paul A. Beuttenmuller, Next Friend, and Paul A. Beuttenmuller, Appellants, v. VESS BOTTLING COMPANY OF ST. LOUIS, and The Great Atlantic and Pacific Tea Company, Inc., a Corporation, Respondents
• Court: United States State Supreme Court of Missouri

Page 519

447 S.W.2d 519

Patricia Rose BEUTTENMULLER, an Infant, by Paul A.

Beuttenmuller, Next Friend, and Paul A.

Beuttenmuller, Appellants, v. VESS BOTTLING COMPANY OF ST. LOUIS, and The Great Atlantic and Pacific Tea Company, Inc., a Corporation, Respondents.

No. 54373.

Supreme Court of Missouri, Division No. 1.

Dec. 8, 1969.

Gerritzen & Gerritzen, Ray A. Gerritzen, st. Louis, for plaintiffs-appellants.

Louis W. Riethmann, Ralph K. Soebbing, Thomas E. Fitzgibbons, St. Louis, for defendant-respondent, Vess Bottling Co.

J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent, the Great Atlantic & Pacific Tea Co.

HENRY I. EAGER, Special Commissioner.

Plaintiff Patricia Rose Beuttenmuller, twenty-six months old at the time of her injury and approximately seven years old at trial, brought suit against The Great Atlantic and Pacific Tea Company, Inc., and Vess Bottling Company of St. Louis for injuries sustained when a bottle of Vess 3--V Cola supposedly exploded in an A & P Store. The amount of her prayer was $25,000. In a second count her father sought to recover $2000 for his medical expense, past and future. The injury occurred on Monday, October 7, 1963. When we used the term 'plaintiff' in the singular we are referring to the child. The trial court sustained a motion of A & P (as we shall hereafter designate it) to dismiss both counts as to it on the ground that no claim was stated upon which relief could be granted. Plaintiffs appealed, and this court dismissed the appeal as premature since the litigation had not been disposed of as to all parties. Beuttenmuller v. Vess Bottling Co. of St. Louis, et al., Mo., 395 S.W.2d 204. Thereafter the case was tried as to Vess (another abbreviation which we shall use), and at the close of plaintiffs' evidence the court directed a verdict for that defendant and entered judgment thereon. Plaintiffs thereafter took an appeal from that judgment and from the prior judgment of dismissal, so that both judgments are now here for disposition.

It will be necessary to set out the essential facts and also the gist of the pleadings. The A & P Store at 9751 Manchester Road in St. Louis County was a supermarket where customers had access to all the merchandise and served themselves. In A front corner of the store (from the confusing descriptions we cannot tell which) there was a display rack for soft drinks of various kinds, including Vess 3--V Cola; the rack seems to have consisted of 5 or 6 shelves. Two photographs were received to show the general location, but they were very poorly explained. We gather that this display rack adjoined, or was very close to, an office or 'cage' provided for the cashier and manager. On the Monday morning in question Doris Beuttenmuller, plaintiff's mother, went to this store with plaintiff and another daughter who was 4 years old; the mother selected a few items, put them in her cart, and walked to the cashier's cage where she cashed a check and put the money in her handbag. She noticed at this time that there were 'quite a few' bottles on the floor along the front of the display and also along the wall of the 'cage'; some of these were in cartons and some were loose. She testified that most of the loose ones were along the wall by the manager's cage. After disposing of her money, the mother took plaintiff by the hand, took hold of her cart and moved over to the bottle display where she reached up for a bottle of Vess Cola; at this instant plaintiff pulled away and the mother heard her feet 'moving' on the floor; as the mother gain reached for the bottle of cola she heard a noise which proved to be the breaking or explosion of a bottle of Vess Cola. The mother described it as an 'explosion,' the court struck out that statement as a conclusion, and plaintiffs' counsel made an offer of proof to which an objection was sustained. Much further colloquy occurred on this subject during the continued testimony of the mother. The court took the position that the mother admittedly did not see any explosion and that some foundation would be necessary. Continuing, the mother testified that she had previously heard bottles break, and twice more she referred to this occurrence as an explosion, with persistent objections and motions to strike. The court finally ruled, if we properly understand it, that the term would merely be considered as her designation of what the noise sounded like to her and not as tending to establish the fact that there was an explosion; and hence, that such testimony, per se, would not be sufficient to take the case to the jury. Defendant's motion for a mistrial was denied. The mother further testified, that there was a 'loud, terrifying, shattering sound,' and that it was 'completely different' from the mere breaking of glass; she also described the sound as 'unusually loud.' Hearing the noise, the mother turned immediately, took two steps and grabbed the child. She testified: that there was 'shattered glass' and brown liquid on the floor around plaintiff, scattered over an 'area' of 4 or 5 feet; that the glass way mostly in small pieces, though the neck of the bottle was intact; that plaintiff was standing about 18 inches from the 'cage' and about 6 inches from bottles on the floor. The child was bleeding from the arm; the manager came out immediately, first aid was administered and plaintiff was taken to a hospital where an operation was performed on her arm later and a cast applied. We need not consider the extent of the injury, but there was evidence of a substantial injury to the elbow (apparently involving a nerve), with a rather slow but generally good recovery. The mother further testified: that no other customer had been nearby for several minutes; that she only saw 3 other customers in the store; that she did not see plaintiff pick up any bottle; that plaintiff was behind her when the incident took place; that plaintiff had nothing in her hand when she first turned and saw her. The manager fixed the position of the child (when he first saw her) as considerably further out on the floor, probably several feet from either wall; this was done by marking one of the photographs.

Employees of the A & P mopped up the debris from the floor and threw away all the fragments. Nothing was available as an exhibit or for examination. The assistant manager of the store regularly on duty five days a week, corroborated in large part by the manager, testified: that the Vess delivery truck called every Monday morning; that the driver would check to see what was needed and made all deliveries through the back door; if anything was needed on the display rack he wheeled it to that point and set it out on the floor, apparently in wooden cases; some employee of the store then put the cartons of bottles on the shelves of the display rack; any additional material was put in the basement in wooden cases, being taken there on an electrical chain conveyor which ran beside the steps; in the basement they were taken off by hand and stacked; when needed for the display the material was taken up and handled in the same way; that there was no unusual jerking on the conveyor; that the temperature both in the basement and in the store was regulated automatically and kept at approximately 70 degrees; (one witness thought the basement might be a little cooler); that all the bottled soft drinks were handled by hand and no mechanical equipment was used except the conveyor; that it was not practical to tell how long any individual bottle of cola had been in the store but that an 'order' was generally used up in a week or two, possibly three; that it was not possible to say whether there had been an actual delivery on that (Monday) morning; that customers often moved bottles around and frequently left them on the floor; that the store was always swept out before it was closed on Saturday night, and that any bottles then on the floor would have been put on the shelves. The assistant manager had 'ordered' soda for the store for eleven years and was, in part, in charge of that business. The manager of the store (from the 'cage') heard the noise of the bottle, which he described as 'like dropping a bottle on the floor'; he testified, after some refreshing from his deposition, and with some slight equivocation, that the glass was all in small pieces except that neck of the bottle; he corroborated the fact that glass and liquid were spread over an area of 4 1/2 to 5 feet in diameter on the floor around the plaintiff.

Plaintiff offered the answers of Vess to certain interrogatories, the substance of which answers were as follows: that Vess 3--V Cola contained carbonated water, sugar, caramel color and a 'combination of about 15 flavoring ingredients'; that the bottles were washed and sterilized and filled with the product automatically; that the syrup (containing the above ingredients) was pumped into a blender mixed with water, pumped into a carbonater, cooled to a temperature of about 35 degrees, and that CO2 gas was then introduced into the mixture; thereafter it was pumped to a filling apparatus where the bottles were automatically filed and capped; that the defendant did bottle the cola at the time in question; that, as aforesaid, CO2 gas was used, which is also described as carbon dioxide; that automatic controls regulated the temperature of the water and the pressure of the gas during the introduction of the gas and that the gas content was also checked manually by the operator of the filling machine.

In their petition the plaintiffs, aside from formal facts, alleged: that plaintiff was injured by a bottle which 'popped and exploded' in the A & P Store; that she and her mother were invitees in the store; that plaintiff was standing near some bottles on the floor which were loose and not in containers but were negligently permitted by A & P to be and remain on the floor; that suddenly one of said bottles, being one of...