Coca-Cola Bottling Co. of Fort Worth v. Smith

• Decision Date: 18 September 1936
• Docket Number: No. 13399.,13399.
• Citation: 97 S.W.2d 761
• Parties: COCA-COLA BOTTLING CO. OF FORT WORTH v. SMITH et ux.
• Court: Texas Court of Appeals

97 S.W.2d 761

COCA-COLA BOTTLING CO. OF FORT WORTH v.SMITH et ux.

No. 13399.

Court of Civil Appeals of Texas. Fort Worth.

September 18, 1936.

Rehearing Denied November 6, 1936.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by M. A. Smith and wife against the Coca-Cola Bottling Company of Fort Worth.From an adverse judgment, defendant appeals.

Reversed and remanded.

Cantey, Hanger & McMahon, J. A. Gooch, and Byron Scarborough, all of Fort Worth, for appellant.

Hyder, Gleeson & Simon, of Fort Worth, for appellees.

DUNKLIN, Chief Justice.

The Coca-Cola Bottling Company of Fort Worth, Tex., has appealed from a judgment in favor of M. A. Smith for damages in the sum of $1,400 for injuries suffered by his wife, Mrs. Mary Smith, who was also a plaintiff in the case, from drinking a bottle of Coca-Cola purchased by her from Roy Gernsbacher, retailer, which it was alleged, contained a part of a decomposed cockroach.

It was alleged in the petition that the defendantCoca-Cola Bottling Company manufactured the beverage known as Coca-Cola and sold it to Gernsbacher, the retailer, who in turn sold it to Mrs. M. A. Smith.

As a basis for the damages claimed, it was alleged that the defendantCoca-Cola Bottling Company of Fort Worth was a manufacturer of the beverage known as Coca-Cola for sale to retail distributors and was liable to the plaintiff by reason of its implied warranty to furnish a pure and wholesome drink.

It was further alleged that if mistaken in that theory of recovery, then the defendant was liable for negligence in furnishing to Gernsbacher, the retailer, the bottle of Coca-Cola containing the decomposed cockroach.

Gernsbacher, the retailer, was not made a partydefendant in the suit.

In answer to special issues, the jury found that the defendant was guilty of negligence, which was the proximate cause of plaintiff's injury, and the judgment rendered was based upon that finding.

The testimony showed without contradiction that the bottle of Coca-Cola was filled and sealed by the defendant company and that the seal was not removed until the plaintiff, Mrs. Smith, removed it in order to drink the beverage.Her testimony was to the effect that after drinking about half of the contents of the bottle she felt some foreign substance in her mouth which she spat out and found it to be a part of a decomposed cockroach; she immediately suffered nausea and vomiting, and that condition lasted for several days, during which time she was unable to eat, had fever, and lost time from her business as a nurse.No witness testified as to when or how the cockroach got into the bottle.

O. A. Brightwell, witness for the defendant, testified without contradiction that he was engaged in the business of selling machinery and equipment for bottlers, and had been so engaged for 17 years.He was familiar with the machinery and bottling equipment of the Coca-Cola Bottling Company of Fort Worth, and had been since its installation.He attends the National Bottlers Convention practically every year, where he is informed on all of the supplies used by other bottling plants in Texas and Oklahoma, including about 180 Coca-Cola plants, and in the opinion of the witness there is no better equipment than that maintained by the defendant in Fort Worth.He visits the defendant's plant about once a week and on those occasions observes the machinery and its working conditions, both while in operation and while idle.The machinery employed by the defendant is known as the Mayer Dumore Bottle Cleaner, which is used by about 75 per cent. of all bottling plants that have been under his observation, and every manufacturer of bottling equipment today has incorporated one or more features of the Mayer Dumore Bottle Cleaner.Defendant's bottling plant is kept in as good condition for operations as any in the state.The operators of the plant take every known precaution for putting out a safe product.The witness then described the machinery used in detail and used pictures to demonstrate to the jury as to how it is constructed and operated.The empty bottle is brought down on the table of the washer just as it is unloaded from the truck; a man stands there and lines up the bottles on what is known as the feed rack.First, all paper is removed from the bottles and they are then placed on the rack without being touched by human hands.The neck of the bottle is down; an endless chain then takes the bottle through five different solutions of water and caustic soda, at a temperature of 110 to 145 degrees Fahrenheit, which is strong enough to eat up the human hand.In the different compartments the bottles are emptied and refilled with different solutions; they are finally rinsed in fresh water at a temperature of 110 degrees and then filled with Coca-Cola and capped before leaving the conveyor, and sold to the retailer as thus capped.

Whether or not the finding of the jury can be sustained upon the doctrine of res ipsa loquitur is one of the questions presented here.

Appellees insist that the very fact that the cockroach was found in the bottle was, prima facie, evidence that its presence there was due to the defendant's negligence, as found by the jury, especially since there was evidence offered tending to show that it could have fallen or crawled into the bottle before it was capped.In support of that contention appellees cite the decision of the Eastland Court of Civil Appeals in the case of Dunn v. Texas Coca-Cola Bottling Company, 84 S.W.(2d) 545, 548, in which a writ of error was dismissed.That was a suit for damages sustained by plaintiff from drinking Coca-Cola in which there were fine particles of broken glass.We quote the following from the opinion in that case: "If the appellee in bottling its Coca-Cola with the purpose and intention that it be sold for human consumption so prepared and marketed it that it contained pieces of broken glass, such facts alone, if they did not compel, would, we think, certainly warrant an inference of negligence," citing Armstrong Packing Co. v. Clem(Tex. Civ.App.)151 S.W. 576.

Appellant insists that the finding of negligence cannot be sustained under the doctrine of res ipsa loquitur, and cites the following authorities in support of that contention: Swenson v. Purity Baking Co. , 236 N.W. 310, in which the following appears in the syllabus prepared by the court:

"This action, based upon the alleged negligence of defendant, was brought to recover damages claimed to have been sustained by plaintiff because she saw a dead larva in a slice of bread manufactured by defendant which she was about to eat; she did not put the bread in her mouth.It is held:

"It was incumbent upon plaintiff to prove defendant's negligence.Defendant was not an insurer against the happening complained of.The evidence for defendant conclusively showed that every reasonable precaution had been taken to prevent the presence of foreign matter in the bread.A jury verdict against defendant would have been based upon speculation and conjecture and could not stand.The court properly directed a verdict for defendant."

Res ipsa loquitur does not apply in a Coca-Cola case and plaintiff cannot go to the jury on proof of the occurrence and injury without more.Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A.(N.S.) 949.

Res ipsa loquitur does not apply even though the pie was made on the premises of the defendant and made under its exclusive control.Ash v. Childs Dining Hall Co., 231 Mass. 86, 120 N.E. 396, 4 A.L.R. 1556.

Proof of eating oyster stew and becoming sick as a result therefrom is not sufficient to make out a prima facie case of negligence against the defendant.Sheffer v. Willoughby, 163 Ill. 518, 45 N.E. 253, 34 L.R.A. 464, 54 Am.St.Rep. 483.

"Mere presence of small particles of glass in strawberry shortcake made by drug store from cake, berries, and cream purchased from others, is alone insufficient to establish prima facie case of negligence in purchaser's action for damages; there being nothing to warrant inference that purchaser's injuries resulted from want of proper inspection or preparation by drug store."O'Brien v. Louis K. Liggett Co., 255 Mass. 553, 152 N.E. 57, 47 A.L.R. 146.

See, also, an extended discussion of the doctrine of res ipsa loquitur in L.R.A. 1917E, beginning on page 4, by the courts of numerous states, including Texas, beginning on page 158.The discussion, however, is confined principally to the relation of master and servant.Also, Davis v. Castile(Tex.Com.App.)257 S.W. 870.

See notes of decisions in 22 A.L.R., beginning on page 1471, citing numerous cases in which it was held that an inference of negligence under the rule of res ipsa loquitur may be conclusively overcome by proof of facts which negative the existence of negligence, including South Baltimore Car Works v. Schaefer, 96 Md. 88, 53 A. 665, 94 Am.St.Rep. 560;Central of Georgia Ry. v. Robertson, 203 Ala. 358, 83 So. 102;Lockwood v. Chicago & N. W. Ry., 55 Wis. 50, 12 N.W. 401;Young v. Mason Stable Co., 193 N.Y. 188, 86 N.E. 15, 21 L.R.A.(N.S.) 592, 127 Am. St.Rep. 939.Also Taylor v. White(Tex. Civ.App.)156 S.W. 349, 352, in which the following was said: "Where the only inference that can reasonably be drawn from the evidence is that the master conformed to the usage of prudent men in well-regulated concerns, engaged in his trade or business in the adoption and use of the instrumentalities, he may be declared as a matter of law to have been in the exercise of due care.Houston & T. C. Railway Co. v. Alexander, 103 Tex. 594, 132 S. W. 119;Southern Pacific R. Co. v. Seley, 152 U.S. 145, 14 S.Ct. 530, 38 L.Ed. 391;1 Labatt on Master & Servant, §§ 44, 163;Houston & Texas C. Ry. Co. v. Cowser, 57 Tex. 293."

That case went to the Supreme Court, and in the opinion of the Commission of Appeals, appearing in 212 S.W. 656, 657, this was said: "The custom of others engaged in like...