Coca Cola Bottling Co., Inc. of Vicksburg v. Reeves by Reeves, 54416
| Decision Date | 19 March 1986 |
| Docket Number | No. 54416,54416 |
| Citation | 486 So.2d 374 |
| Parties | Prod.Liab.Rep. (CCH) P 10,998 COCA COLA BOTTLING COMPANY, INC. OF VICKSBURG v. Erek Damond REEVES, A Minor, by His Mother and Next Friend, Mrs. Shirley REEVES. |
| Court | Mississippi Supreme Court |
Landman Teller, Jr., M. James Chaney, Jr., Teller, Chaney & Rector, Vicksburg, for appellant.
David W. Hall, Riley, Pintard & Hall, Natchez, for appellee.
En Banc.
ROBERTSON, Justice, for the Court, on Parts I-VI; WALKER, Presiding Justice, for the Court, on Part VII:
I.
This products liability action finds a Coca Cola bottler charged with distributing a defective cardboard carton through the bottom of which a bottle fell, shattered, and severely injured one eye of a two year old bystander. The controversy on this appeal centers around the questions of (a) the content of the duty of Coca Cola's bottler and distributor, (b) whether that duty run in favor of one not a customer in the sense of being a purchase, (c) whether the evidence is sufficient to undergird a judgment that, the bottler breached its duty, and (d) whether the jury was correctly instructed regarding the bottler's duty.
We hold that under these facts and circumstances, Coca Cola bottler's duty is measured by Section 402A, Restatement (Second) of Torts (1965), that a bystander is within the scope and protection of that duty, and that the evidence is sufficient unto the day. Because the trial judge erred, however, in granting Instruction P-6, we reverse and remand for a new trial.
II.
Coca Cola Bottling Company, Inc. of Vicksburg ("Vicksburg Coke") is a privately owned corporation. It has a franchise to bottle Coca Cola. Its exclusive territory includes Warren and Claiborne Counties as well as other areas. Exclusive of all other bottlers, Vicksburg Coke distributes to retailers in Claiborne County bottled Coca Cola products in cardboard cartons. In addition to Coke the company bottles and distributes 7-Ups, Dr. Peppers and Barq's to retail outlets. Vicksburg Coke was the Defendant below and is the Appellant here.
Traceway Shopette is a convenience store located in Claiborne County, near Port Gibson. One of its owners is Albert Butler. The shopette sells Coca Cola products it purchases from Vicksburg Coke. Retail customers are allowed to return full cartons of Coke or other beverages in exchange for other cartons, although this practice is not encouraged. Vicksburg Coke has no control over exchanges as they take place.
On May 6, 1980, at approximately 5:00 p.m. Geraldine Smith visited Traceway Shopette with her two nephews, Antwan Reeves, age four, and Erek Damond Reeves, at the time 21 months old. Smith was approximately 23 at the time. 1 Erek Damond Reeves was the Plaintiff below and is the Appellee here.
The proprietor of Traceway, Mr. Butler, and Mrs. Smith had an understanding that she could exchange some drinks. She brought to the store with her a wooden case filled with drinks to exchange for other drinks at the store. While Smith stated that she had Dr. Peppers to exchange for mixed flavored drinks, Henry Banks (the only other witness in the store) testified that the bottles in the wooden case were being replaced with Coca Colas.
While Mrs. Smith was in the process of physically making the exchanges, she lifted from a Traceway Shopette display shelf a Coca Cola carton containing filled ten ounce Coca Cola bottles whereupon one such bottle fell to the floor and broke. Without dispute the glass shattered several slivers of which entered the left eye of Erek who was standing on the floor nearby. Plaintiff's theory of the facts is that what caused the Coke bottle to fall and shatter is that the bottom of the cardboard Coca Cola carton gave way.
The carton of Cokes was approximately two or three feet above the floor itself. The cardboard carton contained returnable bottles. It was a full pack of ten ounce Cokes with the tops on the bottles, although there was dispute whether it was a six-pack carton container or an eight-pack carton container. In any event, Geraldine Smith had picked the carton up off the soft drink rack or shelf and had been holding it for no more than a few seconds when the bottle fell and shattered. No other bottle fell from the container.
Erek Damond Reeves has experienced a serious permanent injury to his left eye. After being treated by a local physician, Erek was placed under the care and treatment of Dr. Donald Hall, Jr., a competent eye specialist, who testified that Erek has suffered what he believes to be less than fifty percent loss of vision in his left eye. Dr. Samuel Johnson, Chief of Opthalmology at the University of Mississippi School of Medicine, testified that Erek had suffered a loss of vision in his left eye of between ninety-four and ninety-six percent and that this impairment would be permanent.
Henry Banks, an employee of Traceway Shopette who was present at the time, testified that immediately after the accident the carton had a hole in the bottom of it and that the sides were torn out. Banks also testified that the carton was wet when he saw it, but that this was due to it having come in contact with the liquid contents of the broken bottle. The carton itself was not offered into evidence and apparently became lost before trial.
Much of the evidence at trial centered around Vicksburg Coke's connection with the cardboard carton. Without contradiction, Vicksburg Coke held an exclusive franchise to distribute Coca Cola products in Warren and Claiborne Counties. This franchise, of course, included distribution of ten ounce Coca Colas in returnable bottles of the type involved here. Vicksburg Coke distributed to various retail outlets, including Traceway Shopette, Coke products in cardboard cartons. Vicksburg Coke's evidence was that all ten ounce Cokes were packaged in eight pack cartons. Plaintiff had originally alleged that the carton in issue was a six-pack carton but at trial showed that the carton was either an eight-pack or a six-pack. The purpose of Vicksburg Coke's evidence was to suggest that any six-pack carton had not come from it. In view of the admitted exclusive franchise of Vicksburg Coke in the Claiborne County area, the only conclusion which could rationally be drawn from the evidence was that the carton in issue had been furnished by Vicksburg Coke. Indeed, there was no credible evidence of any source of the carton other than Vicksburg Coke, in spite of the exchange practice sometimes permitted.
This civil action was commenced on July 11, 1980, when Erek Damon Reeves, a minor, by his mother and next friend, Mrs. Shirley Reeves, filed a complaint in the Circuit Court of Claiborne County, Mississippi, naming Vicksburg Coke as the sole defendant. In an amended declaration filed September 23, 1981, plaintiff alleged that Vicksburg Coke was liable on theories of strict liability in tort, implied warranty and negligence. In its answer, Vicksburg Coke denied the essential allegations of the complaint.
Following trial by jury, judgment was entered in favor of Erek and against Vicksburg Coke in the amount of $52,037.34. Upon motion of plaintiff an additur of $75,000.00 was granted. The additur not being accepted by Vicksburg Coke, a new trial was held on the issue of damages only whereupon the jury determined that the first verdict was not the real thing and this time returned in Erek's favor a verdict of $250,000.00. Final judgment thereon was entered on May 28, 1982. Upon the motion of Vicksburg Coke, a remittitur of $62,500.00 was ordered and accepted by plaintiff whereupon on June 28, 1982, final judgment was entered in favor of Plaintiff, Erek Damond Reeves, and against Defendant Coca Cola Bottling Company, Inc. of Vicksburg, in the sum of $187,500.00, together with interest and costs. This appeal has followed.
III.
Plaintiff's claim rests upon strict liability in tort the contours of which we have articulated generally in a series of cases beginning with State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 118 (Miss.1966) and through and including such cases as Ford Motor Co. v. Cockrell, 211 So.2d 833, 836 (Miss.1968); Falstaff Brewing Corp. v. Williams, 234 So.2d 620, 623 (Miss.1970); Early-Gary, Inc. v. Walters, 294 So.2d 181, 185-86 (Miss.1974); Thomas v. Munson Machinery Co., Inc., 463 So.2d 1044, 1046-47 (Miss.1985); Toliver v. General Motors Corp., 482 So.2d 213, 214-19 (Miss.1985).
The general rule, which we have borrowed from the Restatement (Second) of Torts, Sec. 402A (1965), is that
one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
To eradicate venerable doctrine from the past, we recognize that this general rule applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
We have recognized in William Cooper and Nephews, Inc. v. P.V. Pevey, 317 So.2d 406, 408 (Miss.1975); and Early-Gary, Inc. v. Walters, 294 So.2d 181, 186 (Miss.1974) that
before recovery can be had under this section [402A] three elements must be established by the proof:
(1) that the plaintiff was injured by the product, (2) that the injury resulted from a defect in the product which rendered it unreasonably dangerous, and (3) that the defect existed at the time it left the hands of the ... [seller].
Two nuances of the rule must be recognized in the context of the facts of this case. First, the duty imposed by Restatement Sec. 402A to the extent that same has been...
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