Coca-Cola Bottling Co. v. Clark

• Decision Date: 30 July 1974
• Docket Number: No. T--183,COCA-COLA,T--183
• Citation: 299 So.2d 78
• Court: Florida District Court of Appeals
• Parties: BOTTLING COMPANY, a Florida corporation, Appellant, v. Ann CLARK, a femme sole, Appellee.

Page 78

299 So.2d 78

COCA-COLA BOTTLING COMPANY, a Florida corporation, Appellant, v. Ann CLARK, a femme sole, Appellee.

No. T--183.

District Court of Appeal of Florida, First District.

July 30, 1974.

Rehearing Denied Sept. 6, 1974.

Terrill J. LaRue of Sands, Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellant.

Wilton R. Brinkley, Daytona Beach, for appellee.

BOYER, Acting Chief Judge.

Appellant, one of the defendants below, appeals a final judgment entered pursuant to a jury verdict in favor of the plaintiff below emanating from an exploding bottle case.

Plaintiff purchased from Winn-Dixie Stores, Inc. a 28-ounce bottle of Coca-Cola. The bottle was placed in a shopping bag and taken to the plaintiff's home where she placed it in her refrigerator. She testified that from the time she picked up the bottle at the store until she put it in the refrigerator the bottle did not bump against anything. She did not bump the bottle at the time it was removed from the refrigerator nor did the bottle encounter any other unusual circumstances such as sudden temperature changes. When the bottle was removed by the plaintiff from her refrigerator for the purpose of consumption it exploded, injuring her foot. The plaintiff did not notice any defects in the bottle nor anything unusual about the way it had been filed or capped.

Suit was filed against Winn-Dixie Stores, Inc. and Coca-Cola Bottling Company, the complaint being in two counts, negligence and implied warranty.

At the trial the plaintiff adduced testimony from three witnesses; herself, a neighbor who did not witness the incident and her physician who testified only as to injuries and treatment. She also entered into evidence a 28-ounce bottle of Coca-Cola (not the bottle which exploded) and a composite exhibit of seven medical bills. The defendant called one expert witness. No other evidence was adduced.

At the close of the plaintiff's case, and again at the close of all the evidence, defendants moved for a directed verdict. The trial judge reserved his ruling thereon.

The jury returned a verdict in favor of the plaintiff and against defendant Coca-Cola Bottling Company; finding the defendant Winn-Dixie Stores, Inc. not guilty.

Appellant contends on this appeal that the trial court erred in failing to grant its motion for directed verdict. We agree.

No evidence was adduced at trial in support of the plaintiff's count based on negligence and the evidence does not support a verdict under the doctrine of res ipsa liquitur.

The parties have cited four, and only four, cases upon which they rely. Each will be herein discussed. The case most factually similar to our case sub judice is Hughs v. Miami Coca-Cola Bottling Co., 1944, 155 Fla. 299, 19 So.2d 862. There our Supreme Court said:

'Briefly stated, this is the testimony offered by plaintiff in behalf of his case. At the conclusion of the testimony the trial judge, on motion, directed a verdict for the defendant. From this ruling and the judgment entered thereon this appeal is taken. The question is whether the granting of the motion for directed verdict constituted reversible error.

'Upon a motion for directed verdict made at the close of the plaintiff's case the evidence given on behalf of the plaintiff must be considered as true. Dempsey-Vanderbilt Hotel v. Huisman, 153 Fla. 800, 15 So.2d 903. For the purpose of the motion the moving party admits not only the facts adduced, but every conclusion favorable to his adversary fairly and reasonably inferable therefrom. Florida Motor Lines, Inc. v. Bradley, 121 Fla. 591, 164 So. 360; Talley v. McCain, 128 Fla. 418, 174 So. 841; Russell v. Atlantic Coast Line R. Co., 129 Fla. 535, 176 So. 778; Hastings v. Taylor, 130 Fla. 249, 177 So. 621; Duval Laundry Co. v. Reif, 130 Fla. 276, 177 So. 726; Fain v. Cartwright 132 Fla. 855, 182 So. 302; Carter v. Florida Power & Light Co., 138 Fla. 220, 189 So. 705; Smith v. Burdines, Inc., 144 Fla. 500, 198 So. 223, 131 A.L.R. 115. But when there is an absence of all evidence to establish liability, and nothing from which liability may be fairly and reasonably inferred, the motion for directed verdict should be granted. Sec. 54.17, Florida Statutes, 1941 F.S.A.; Crandall, Florida Common Law Practice, pp. 305, 306, § 208, and cases there cited.

'There is no direct proof in the record of negligence on the part of the Miami Coca Cola Bottling Company. The plaintiff concedes such fact, but submits that this is a case the facts of which call for the application of the rule res ipsa loquitur, under which direct proof by plaintiff of active negligence is not necessary to require of the defendant explanation or rebuttal.

'Some of the courts of the land have applied the rule res ipsa loquitur to cases in which exploding beverage bottles have been involved, and have held the bottler liable in damages even though the agency causing the injury was not in his possession or control at the time of the accident. See Payne v. Rome Coca Cola Bottling Co., 10 Ga.App. 762, 73 S.E. 1087; Benkendorfer v. Garrett, Tex.Civ.App., 143 S.W.2d 1020; Bradley v. Conway Springs Bottling Co., 154 Kan. 282, 118 P.2d 601; Stolle v. Anheuser-Busch, 307 Mo. 520, 271 S.W. 497, 39 A.L.R. 1001; Coca-Cola Bottling Works v. Shelton, 214 Ky. 118, 282 S.W. 778; Grant v. Graham Chero-Cola Bottling Co., 176 N.C. 256, 97 S.E. 27, 4 A.L.R. 1090; 18 N.C.C.A. 869, 4 A.L.R. 1090; Auzenne v. Gulf Public Service Co., La.App., 181 So. 54. But so far as we have been able to find from a study of the decisions, no court has ever held that recovery may be had in such cases, under the res ipsa loquitur doctrine, without an affirmative showing on the part of the plaintiff that after the bottle left the possession of the bottler it was not subjected to any unusual atmospheric change or changes in temperature, or that it was not handled improperly up to the time of the explosion. See Payne v. Rome Coca Cola Bottling Co., supra; Auzenne v. Gulf Public Service Co., supra; Benkendorfer v. Garrett, supra; Stolle v. Anheuser-Busch, supra; Lanza v. De Riddr Coca Cola Bottling Co., La.App., 3 So.2d 217; Ruffin v. Coca Coca Bottling Co., 311 Mass. 514, 42 N.E.2d 259.

'* * * In the state of the record it cannot be said that there is such proof that the bottle was not handled improperly in the store, or by the delivery boy, or in the home, after it left the hands of the manufacturer, as will call for explanation or rebuttal on the part of the defendant. Because of the failure of such proof in the record the rule res ipsa loquitur would not be available in any event. * * *' (Emphasis added; 19 So.2d at pages 863 and 864)

In the case sub judice there was no evidence adduced as to what happened to the subject bottle of Coca-Cola from the time of its manufacture, viz: from the time that the bottle was filled by the bottler, to the time that it was purchased by plaintiff.

In Groves v. Florida Coca-Cola Bottling Co., Sup.Ct.Fla.1949, 40 So.2d 128, the Supreme Court held the doctrine of res ipsa loquitur to be applicable in exploding bottle cases under certain specific circumstances, the court saying:

'The record shows that the appellant failed to submit any direct evidence of negligence on the part of Florida Coca-Cola Bottling Company. The question for decision is whether such evidence as was adduced was sufficient to invoke the application of the rule res ipsa loquitur under which direct proof of active negligence is not indispensable in order to place on the manufacturer of bottled beverages the burden of explanation or rebuttal.

'It is recognized by the decisions of this court that a manufacturer of bottled beverages may be held liable for injuries resulting from exploding beverage bottles after they have passed from the possession and control of the manufacturer, even though the injured person may fail to offer any direct proof of negligence on the part of the manufacturer. Before the duty devolves upon the manufacturer of going forward with the evidence in such a case, however, the injured person must make an affirmative showing that after the bottle left the possession and control of the bottler it was not subjected to any unusual atmospheric changes or changes in temperature such as might have been reasonably calculated to render the bottle defective or otherwise to cause an explosion and that it was not handled improperly from the time it left the possession of the bottler up to the time of the explosion. Compare Hughs v. Miami Coca-Cola Bottling Company, 155 Fla. 299, 19 So.2d 862; Starke Coca-Cola Bottling Company v. Carrington, 159 Fla. 718, 32 So.2d 583, and cases therein cited.' (Emphasis added; 40 So.2d at page 129)

It is apparent, therefore, that the doctrine of res ipsa loquitur could not properly be applied under the evidence, or the lack of it, in the case sub judice.

Plaintiff relies heavily upon Canada Dry Bottling Company of Florida v. Shaw, Fla.App. (2d) 1960, 118 So.2d 840 wherein the opinion recites that 'Prior to closing her case the plaintiff announced her abandonment of all claims of negligence, including the res ipsa loquitur doctrine, and relied solely on the theory of implied warranty.' However the evidence sub judice cannot find refuge in that case. The essential holding of our sister court in that case was that the doctrine of implied warranty may be applied to the container (the bottle) as well as its contents. With that holding we agree. However, in the Canada Dry case the evidence revealed, as recited by the court, that the bottle which exploded was a 'multi-trip' bottle which had been damaged internally in the neck under the cap and that the damage was present at the time the bottle was last filled and capped. We have no such facts sub judice.

Renninger v. Foremost Dairies, Inc., Fla.App. (3d) 1965, 171 So.2d 602, also relied upon by the plaintiff, was not an exploding bottle case but it did involve a case wherein a milk bottle broke...