Butterfield v. Pepsi-Cola Bottling Co. of Wichita

• Citation: 499 P.2d 539,210 Kan. 123
• Decision Date: 19 July 1972
• Docket Number: PEPSI-COLA,No. 46443,46443
• Parties: Corine M. BUTTERFIELD, Appellant, v.BOTTLING COMPANY OF WICHITA, Inc., Appellee.
• Court: Kansas Supreme Court

Page 539

499 P.2d 539

210 Kan. 123

Corine M. BUTTERFIELD, Appellant, v. PEPSI-COLA BOTTLING COMPANY OF WICHITA, Inc., Appellee.

No. 46443.

Supreme Court of Kansas.

July 19, 1972.

Syllabus by the Court

In an action against a bottler-distributor of soft drinks for breach of implied warranty for injuries sustained when a bottle of soda water exploded in plaintiff's hand, the record is examined and it is held: The trial court did not err in (1) permitting a witness for defendant to give expert testimony; (2) denying plaintiff's motion for directed verdict on the issue of liability; (3) submitting a special verdict to the jury; or (4) giving an additional instruction to the jury. Further held, the jury's special verdict was not contrary to the law and the evidence.

Davis S. Carson, of Sowers, Sowers, Carson & Johnston, Wichita, argued the cause and was on the brief for appellant.

William R. Smith, of Hershberger, Patterson & Jones, Wichita, argued the cause and was on the brief for appellee.

HARMAN, Commissioner:

In this action for damages for personal injury arising from a bursting soda water bottle plaintiff Corine M. Butterfield seeks recovery from defendant Pepsi-Cola Bottling Company of Wichita, Inc., for breach of implied warranty of fitness. Judgment was entered against plaintiff as a result of a jury's adverse finding on this issue and she has appealed.

Plaintiff-appellant's evidence at trial revealed the following:

She owned and operated a small grocery store in Milan, Kansas. Defendant-appellee bottled and distributed soft drinks, including Diet Pepsi-Cola. On May 19, 1969, appellee's route man delivered one case of Diet Pepsi-Cola and several cases of other kinds of soft drinks to appellant's store. Appellant had a rack in which all the various cartons were kept for sale to her customers.

On the evening of May 26, 1969, appellant's supply of Diet Pepsi-Cola had dwindled to a single bottle. At this time she removed that bottle from the pop rack, intending to place it in the cooler so that she might consume it herself the following day. However, the cooler was full, so she placed the bottle on the floor behind her checkout counter from whence she could put it in the cooler when space became available. The next day, May 27th, she picked up the bottle, holding it by the neck, and when she had lifted it about eight to twelve inches it exploded, injuring her leg. Appellant summoned a part-time employee to tend the store while she sought medical attention. This employee promptly swept up the pieces of the broken glass bottle and disposed of them in the trash can.

Appellant further testified she had her air-conditioner operating at the time of the incident but the ducts were not near the bottle and the room temperature was between seventy and seventy-five degrees; that she did not bump the bottle in any way prior to the explosion.

Appellee's employee who delivered the bottle to appellant, called as a witness by her, stated his truck had been loaded by loaders at Wellington; that the vehicle rode 'fair for a truck', 'It was a pretty smooth running truck', it was 'pretty rough' when going over railroad tracks, and when driving over railroad tracks, 'You can shake them (the bottles) plumb off the truck if you want to, if you run over them fast enough'.

In behalf of appellee its route manager testified he interviewed appellant concerning the incident one or two days after it occurred; that appellant described the event to him, stating she had set the bottle down on the floor, turned around to pick up some cookies, then had turned back and picked up the bottle again when it exploded or broke.

Appellee's production manager testified as to the mechanics of the bottling process at appellee's plant, describing the procedures used; after washing and inspection bottles are placed on a conveyor which takes them to a filling machine where carbon dioxide is inserted and they are subjected to a pressure of fifty-five pounds; at this point bottles which have a flaw in them will break; the pressure is gradually reduced so as to prevent foaming when the bottles are filled; the pressure is completely released and the bottles remain unsealed prior to being capped in the crowning machine; there is pressure after the bottles are crowned; a bottle can break any time from shock, such as hitting it; such a bottle will break shortly after it receives the shock, 'Perhaps a minute or split seconds'; bottles can be subjected to occasional knocking after distribution to dealers.

As indicated, appellant relies for recovery upon the theory of breach of implied warranty of the fitness of the bottle for its intended purpose. The jury was not called upon to render a general verdict. Instead the issues were submitted to it upon special verdicts in the form of interrogatories, the first of which, together with the jury's answer, was as follows:

',1. Was the bottle of Diet Pepsi-Cola reasonably fit for the purpose for which it was intended and reasonably safe at the time it was delivered to the plaintiff's store?

'Answer: YES'

Succeeding questions dealt with the damage aspect and were not required to be answered in event of an affirmative answer to the first question. The trial court entered judgment for defendant-appellee on the foregoing answer to question No. 1 and this appeal ensued.

Appellant's specifications of error will be dealt with chronologically.

Appellant asserts the trial court erroneously permitted appellee's production manager to give expert testimony, over objection, as to the time when flawed bottles would blow up. This point lacks merit. After the question embracing the challenged testimony had initially been put to the witness but prior to receipt of an answer appellant did object on the ground of the witness's lack of qualification. The objection was made prior to any questioning of the witness as to his qualification as an expert and, quite properly, was sustained. Thereafter appellee elicited considerable testimony upon this subject. The witness then gave the testimony now complained of but the objection was never renewed.

The failure to renew the challenge may well have been because the witness was shown to have had considerable occupational experience in the soft drink bottling industry, having been employed in various capacities in it since 1936. He demonstrated familiarity with breaking bottles and was sufficiently qualified to give the testimony now challenged, which was relevant evidence.

At the conclusion of all the evidence appellant moved for a directed verdict in her favor on the issue of liability. The trial court denied this motion and appellant assigns the ruling as error. She also asserts the jury's verdict was contrary to the law and the evidence. In view of the arguments advanced and the particular posture of the case, the contentions may be considered together. Essentially appellant urges that all she had to show to be entitled to a verdict on the issue of liability was the fact that the bottle burst and she was injured thereby. She cites and relies on cases involving the sale of food for immediate consumption, such as Stanfield v. F. W. Woolworth Co., 143 Kan. 117, 53 P.2d 878 and Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P.2d 930, as well as those in which foreign substances were found in bottles, such as Sharp v. Pittsburg Coca Cola Bottling Co., 180 Kan. 845, 308 P.2d 150, and Simmons v. Wichita Coca-Cola Bottling Co., 181 Kan. 35, 309 P.2d 633. She asserts there was no evidence of mishandling of the bottle by her or by anyone under her control.

Ever since Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 38 A.L.R.2d 887, it has been well established that an implied warranty exists in the manufacture, distribution and sale of a carbonated beverage bottle, such as a Pepsi-Cola bottle, such warranty being that the container is reasonably fit for the purpose for which it is intended. And it is true that a claim for relief for breach of implied warranty may be proved by circumstantial evidence (Balthazor v. B & B Boiler & Supply Co., 169 Kan. 188, 217 P.2d 906); however, it does not thereby follow, as asserted by appellant, the mere fact a bottle broke while in the hands of a user constitutes of itself a breach of warranty on the part of the bottler-distributor.

In Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P.2d 380, the plaintiff was injured when a partially filled Pepsi-Cola bottle broke as he was attempting to recap it. Recovery was sought against both the maker of the recapping device and the bottler-distributor of the beverage. In discussing the liability of the latter this court stated:

'The burden of proving a breach of implied warranty was on the plaintiff, and that burden was not sustained simply by showing the bottle broke and he was thereby injured. . . . In other words, it was incumbent upon plaintiff to establish the bottle was defectively manufactured. . . . (p. 642, 433 P. 2d p. 384)

'Only recently we had occasion to point out that irrespective of the theory of recovery-negligence or implied warranty-a prerequisite to recovery against a manufacturer for a defective product is that the plaintiff must show the product was defective at the time it left the manufacturer's control. . . . The rule is well stated in Gardner v. Coca-Cola Bottling Co., 267 Minn. 505, 127 N.W.2d 557:

"Before liability can result from a breach of an implied warranty there must be proof from which an inference is permissible that the product was defective. In Prosser, Torts (2 ed.) § 84, p. 509, we find the following:

"'. . . The existence of the warranty of course does not eliminate the necessity of proof that the product was defective when it left the defendant's hands; . . .'' (p. 510, 127 N.W.2d p. 562)

'Also, see Anno. 81 A.L.R.2d 259. Thus, it may be said as a general rule that there must be evidence from which it may reasonably be inferred that the...