Boykin v. Chase Bottling Works

• Decision Date: 02 March 1949
• Citation: 222 S.W.2d 889
• Parties: BOYKIN v. CHASE BOTTLING WORKS (two cases).
• Court: Tennessee Supreme Court

222 S.W.2d 889

BOYKIN v. CHASE BOTTLING WORKS (two cases).

Court of Appeals of Tennessee, Western Section.

March 2, 1949.

Certiorari Denied by Supreme Court July 9, 1949.

COPYRIGHT MATERIAL OMITTED

R. R. Bond, Memphis, for appellants.

Charles L. Neely, Memphis, D. W. Wells, Memphis, for appellee.

ANDERSON, Presiding Judge.

Mrs. Boykin sustained a personal injury from the bursting of a bottle containing a carbonated beverage produced and sold by the defendant. She brought this action for damages, charging negligence on the part of the defendant in bottling the drink. Her husband brought a separate action for loss of services and companionship and for expenses incurred in treating his wife's injuries. The cases were tried together. The declarations are respectively in two counts. There were jury verdicts in both cases in favor of the defendant as to count one and directed verdicts as to count two. The judge approved the jury verdicts and judgments were entered, dismissing the suits. The plaintiffs appealed in error.

Since the suit of the husband depends upon that of the wife, and the same questions are made in both, for convenience of expression we take note only of the latter.

Mrs. Boykin and her husband operated a restaurant and grocery business in Shelby County. In connection therewith they sold beverages of different kinds, among them being one known as Double-Cola, which is manufactured, bottled and sold by the defendant, Chase Bottling Company.

On October 19, 1947, Mrs. Boykin removed a bottle of the beverage from the ice box maintained by the plaintiffs in their place of business, and was about to open it and hand it to a customer when the bottle burst while she had it in her hand. A piece of the glass entered her wrist, resulting in a substantial injury.

In the first count of the declaration, after stating the fact of the injury and its cause, it was averred as follows: "That the defendants manufactured the contents of the bottle, filling them at their plant in Memphis, Tennessee, and at all times had complete control of the bottles until then (sic) were delivered to plaintiff's place of business; that the bottles were carefully and properly handled by plaintiff and by all persons into whose hands they came after leaving the hands of the defendants that the explosion was not caused by the negligence or improper handling of the bottle on the part of plaintiff after leaving the possession of the defendants; that the bottles contained a beverage charged with carbonic acid, which exerts an exploding pressure upon the bottles into which it is introduced and confined; that all the facts and circumstances of and concerning the manufacture and production of said bottles were exclusively within the knowledge of the defendants and not within the knowledge of the plaintiff; that the bottles would not have burst if due care had been used by the defendants and that said bottles were too highly and dangerously charged with said gas so that they could not withstand the pressure thereof."

The second count reiterates the averments of the first, and charges in addition that, "The bottles were defective or of inferior material and unable to withstand internal pressure", and that "the defendants are here notified that the plaintiff will rely upon the rule of res ipsa loquitur".

At the conclusion of all the evidence, the judge overruled the defendant's motion for a directed verdict as to Count 1, but as said, sustained the motion as to Count 2. He held the doctrine of res ipsa loquitur was not applicable and in his instructions confined the jury to a consideration of the specification of negligence contained in the first count, to the effect that the bottle was overcharged. The defendant's evidence tended to show the exercise of a high degree of care in the bottling of its products, and there is no contention that the verdict of the jury as to the first count was not supported by substantial evidence.

The only other hypothesis advanced was that the defendant was negligent in marketing its beverage in a bottle so defective that when handled after it left the defendant's control in a manner reasonable to be expected, it was incapable of withstanding the normal pressure exerted by the gas in the beverage. Whether there was evidence to justify the submission of the case to the jury upon this theory, is the question presented by the assignment of error challenging the action of the court in sustaining the defendant's motion for a directed verdict as to Count 2. A disposition of this question will in the main dispose of all the others insofar as they are necessary to be considered.

The circumstances under which the defendant's products were handled after reaching the plaintiff's place of business appeared from evidence offered by her. Deliveries were made usually on Wednesday of each week by a servant of the defendant. The bottles were in wooden cases, each case containing twenty-four. Upon arrival at the plaintiffs' store the defendant's servant ascertained how many cases were desired and then put the requested number in a store-room at the rear of the business house. Plaintiffs also handled other bottled drinks manufactured by different concerns, which were delivered in a like manner. Only the delivery boys, the plaintiff, J. R. Boykin, and his wife and daughter had access to the storeroom.

In that part of the store where the business was conducted the plaintiffs had an ice box with a sliding top. The box was divided into compartments, one for soft drinks and the other for beer.

Mrs. Boykin was usually occupied with her household duties until about 10 o'clock, a. m. but thereafter worked in the store. The business was customarily opened each day about 7:00 o'clock in the morning by Mr. Boykin. He first cleaned and drained the ice box as required by the Health authorities, and then filled the bottom with bottled beverages, standing them upright. The lid was left off the box until the arrival of the ice man.

Ice in fifty-pound blocks was delivered twice daily, once in the morning and once in the afternoon except on Sunday when there was only a morning delivery. The ice man came "bright and early" in the winter and between 9:00 and 11:00 o'clock a. m. in the summer. Upon the morning delivery the ice was put in the box by the ice man. He deposited the fifty-pound block on top of the bottles which had been placed in the bottom of the box by Boykin prior to his arrival. With the block thus resting on top of the bottles, the ice man, using an ice pick, broke it into pieces somewhat smaller than a man's fist "so as to get them around the drinks as neatly as possible." After this was done, Boykin placed a layer of bottles on top of the ice, "to keep from moving the ice to get to the bottom of the box." By the time the bottles which had been put on top of the ice were sold, the ice had melted sufficiently for the bottles on the bottom to be reached without the necessity of pushing the ice aside. But as the ice melted some of the standing bottles would fall over.

Customers over fourteen years of age, who usually knew the kinds of drinks they desired, were permitted to serve themselves from the ice box. In doing this it was sometimes necessary for them to "move the ice around".

As said, the accident in question occurred on the afternoon of Sunday, October 19, 1947. The particular bottle which burst was one of a lot which had been delivered on the preceding Wednesday. It, along with others, had been taken from a case in the storeroom and put in the bottom of the ice box by Mr. Boykin when he cleaned and filled the box early Sunday morning in the manner described above. The ice man had made a delivery on Sunday morning, depositing the ice on top of the bottles and breaking it up in the usual manner, following which a layer of bottles had been placed on top of the ice by Mr. Boykin.

Between 3:00 and 4:00 o'clock in the afternoon a ten-year old child asked for a bottle of Double-Cola. At that time the ice had "almost gone" from the box and due to previous sales the supply of beverages had been almost exhausted. Those left were standing on end in the bottom of the ice box where they had been put by Mr. Boykin when he first filled the box. From these Mrs. Boykin picked a bottle of Double-Cola and was returning to the counter holding it in her hand when the accident happened.

On the day before the accident, another bottle of Double-Cola had burst, injuring Mrs. Boykin slightly. The details of this incident were not shown. After the accident and about six months before the trial still another bottle burst just after it was taken from the ice box by Mr. Boykin.

Mr. Boykin also testified generally that, "I believe two or three (bottles) exploded after October 19th" referring to the date of the accident. He gave no details of these instances other than as above set forth. In fact, in connection with this statement he did not say that the bottles which subsequently burst contained the defendant's product; nor did he say that they had been acquired from the defendant.

It was stipulated that the mean temperature on the day of the accident was 70°. On the day before, it was 68°.

If the doctrine of res ipsa loquitur were otherwise applicable, as the plaintiff insists, the fact that the declaration charged in addition a specific act of negligence would not render it unavailable to the plaintiff. While there are authorities elsewhere to the contrary, such is the settled rule in this jurisdiction. Bouchard & Sons v. Keaton, 9 Tenn.App. 467, 479.

The view that by the weight of the authority the doctrine of res ipsa loquitur has no application in a case involving an injury resulting from the bursting of an ordinary beverage bottle, is supported by the language of the annotator in 4 A.L.R. 1094; but it is said by respectable authority that subsequent annotations, 39 A.L.R. 1006, and 56 A.L.R. 593, and cases decided subsequent to...