Coca-Cola Bottling Co. of Southeast Ark. v. Jones

• Decision Date: 12 November 1956
• Docket Number: No. 5-1027,COCA-COLA,5-1027
• Citation: 226 Ark. 953,295 S.W.2d 321
• Parties: BOTTLING COMPANY OF SOUTHEAST ARKANSAS, Appellant, v. John JONES, Appellee.
• Court: Arkansas Supreme Court

Page 321

295 S.W.2d 321

226 Ark. 953

COCA-COLA BOTTLING COMPANY OF SOUTHEAST ARKANSAS, Appellant, v. John JONES, Appellee.

No. 5-1027.

Supreme Court of Arkansas.

Nov. 12, 1956.

Thomas E. Sparks, Fordyce, for appellant.

Arvin A. Ross and John R. Wood, Arkadelphia, L. Weems Trussell and Nona L. Trussell, Fordyce, for appellee.

GEORGE ROSE SMITH, Justice.

This is an action by the appellee, who operates a small grocery at Dalark, to recover for personal injuries sustained when a bottle of Coca-Cola exploded just after he had placed it in an electric cooler. The jury fixed the plaintiff's damages at $4,500. It is contended by the appellant that the court erred in its instruction to the jury and that the verdict is excessive.

In defining the doctrine of res ipsa loquitur the court below gave verbatim the charge that was quoted as Instruction No. 3 in the opinion in Coca-Cola Bottling Co. of Helena v. Mattice, 219 Ark. 428, 243 S.W.2d 15, 29 A.L.R.2d 1379. This instruction tells the jury that the happening of the explosion is prima facie evidence of negligence 'and shifts to the defendant the burden of proving that it was not caused by the negligence of the defendant.' Although the instruction was approved in the Mattice case the appellant insists that the court's language was dictum and should be overruled.

Our former approval of this instruction was not mere dictum. The Mattice case was being remanded for a new trial on account of an error in another instruction, and it was therefore necessary to determine whether Instruction No. 3 might properly be given upon a retrial. It was contended there, as it is here, that the jury should be told in so many words that the plaintiff's evidence shifts to the defendant only the burden of going forward with the evidence, as distinguished from the burden of proof in the whole case. We examined this issue in detail and, adhering to our prior decisions, held that the instruction in question does not cast on the defendant the burden of proving its freedom from negligence by a preponderance of all the evidence. We still consider that conclusion to be correct.

The appellant made a general objection to the trial court's instruction on the measure of damages. It is now insisted that the charge is inherently erroneous in permitting the plaintiff to recover 'the damages which he may have sustained on account of the loss of the net remuneration or earnings from his business * * *' The appellant argues that net remuneration must be taken to mean net profits; authority is then cited to show that lost profits are often not recoverable in personal injury cases.

We do not find the instruction to be inherently wrong, either upon this ground or upon two lesser grounds that are suggested in the appellant's brief. The plaintiff, who owned and conducted his own business, was incapacitated for several weeks by...