Coca Cola Bottling Co. of Houston v. Hobart

• Decision Date: 20 December 1967
• Docket Number: No. 42,42
• Citation: 423 S.W.2d 118
• Parties: COCA COLA BOTTLING COMPANY OF HOUSTON, Appellant, v. Martha HOBART et al., Appellees. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 118

423 S.W.2d 118

COCA COLA BOTTLING COMPANY OF HOUSTON, Appellant, v. Martha HOBART et al., Appellees.

No. 42.

Court of Civil Appeals of Texas Houston (14th Dist.).

Dec. 20, 1967.

Rehearing Denied Jan. 24, 1968.

Thomas S. Terrell, Harman Parrott, Sewell, Junell & Riggs, Houston, for appellant.

W. Jim Kronzer, Frank Abraham, Bob W. Young, Brown, Kronzer, Abraham, Watkins p Steely, Carroll V. Webb, Frank Bean, Bean & Manning, Houston, for appellees.

BARRON, Justice.

This case was instituted by Harrison Hobart and wife, Martha Hobart, plaintiffs, against Coca Cola Bottling Company of Houston, Henke & Pillot, Inc., and the Kroger Company, all defendants, to recover damages for alleged injuries sustained by Mrs. Hobart while she was undertaking to open a Coke bottle purchased at one of the stores of Henke & Pillot, Inc. (hereinafter referred to as Henke). Henke is a division of the Kroger Company, and it operates numerous stores in the Houston area. The case was tried and submitted to a jury upon special issues incorporating the concept of 'strict liability' as now announced in the recent decision of the Supreme Court of Texas in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 .

The jury found that the Coke bottle in question was defective when sold by Coca Cola to Henke, and was defective when sold to Mr. Hobart be Henke on May 16, 1964. The sum of $8,796.00 was assessed by the jury in favor of the Hobarts as damages by reason of Mrs. Hobart's injuries when she cut her finger in an attempt to open the Coke bottle. Based upon favorable answers to the issues, the trial court entered judgment in favor of the Hobarts and against defendants, jointly and severally, but also awarded Henke and Kroger full and complete indemnity as against Coca Cola for any and all sums they may be required to pay in satisfaction and discharge of the judgment in favor of the Hobarts, including costs of court.

By reason of the judgment granting full indemnity to Henke and Kroger the latternamed parties did not file a motion for new trial nor did they otherwise perfect an appeal from the judgment below. The appeal here is by Coca Cola Bottling Company of Houston.

At the outset, we are met with a motion by the Hobarts to dismiss Coca Cola's appeal. Plaintiffs (Hobart) contend that this court cannot grant effective relief to Coca Cola under the circumstances, and in practical effect, the appeal is moot, because the judgment is claimed to be final as between the Hobarts and Henke. While such contention raises other questions not now necessary to discuss, we hold that Henke and Kroger are before this court, and that Coca Cola did properly perfect an appeal as to them. The appeal bond filed by Coca Cola on June 16, 1967 named only the Hobarts as obligees. But the bond recited that Coca Cola desired to appeal from the entire judgment. In its request for a transcript, Coca Cola asked that the pleadings vis-a-vis Henke and Coca Cola be brought forward to the appellate court. In its amended motion for new trial, Coca Cola moved the court 'to set aside the verdict and judgment heretofore rendered against it,' and some of the first assignments of error contained in that motion for new trial were Coca Cola's complaints about the evidence supporting Special Issue No. 2, which was requested by Henke, and is the issue which enabled Henke to recover indemnity over against Coca Cola. In its notice of appeal, Coca Cola stated, '* * * the defendant and cross-defendant, Coca Cola Bottling Company * * * gives this its notice of appeal * * *.' We believe that Coca Cola evidenced a clear intention to appeal the entire judgment. On September 20, 1967, Coca Cola filed an amended appeal bond which included Henke and Kroger as obligees. The naming of improper obligees in the appeal bond is a defect which can be waived. Rule 404, Texas Rules of Civil Procedure; Carroll v. Roger Lacy, Inc., 402 S.W.2d 307 (Tex .Civ.App.), no writ. When there are defects of substance or of form in an appeal bond, such defects are not jurisdictional and are waived by failure to present objections to the bond by motion within 30 days after the transcript is filed. Rules 404 and 430, T.R.C.P.; Speckels v. Kneip, 170 S.W.2d 255 (Tex.Civ.App.), writ ref. See also Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141. The transcript was filed in the Court of Civil Appeals on July 18, 1967. First mention of any defect in the bond was in the Hobarts' motion to dismiss which was filed on either September 15 or September 18, 1967. Either date was after the thirty days for making objections to the bond and came too late. We hold that all parties are properly before this Court.

On Saturday, May 16, 1964, Harrison Hobart went to Henke and Pillot, Inc., store number 5 in West University Place to buy groceries. About 4:00 o'clock that afternoon, he picked up a six-pack carton of Cokes at the display counter and placed them in the lower tier of his shopping cart. The Cokes were in a pasteboard carton. He stated that he did not drop the Cokes or 'bang them around.' He checked them out, received assistance from a store porter, put them in the back of his car where they could not be shifted around, and took them to his home about eight blocks away. As he started to remove them from the carton to place them in the refrigerator, he discovered that the two middle Cokes in the carton separated or came apart when he attempted to remove them, and some of the fluid came out and into the carton. The two broken bottles came apart about a third of the distance from the base. His wife then put the four remaining Cokes in the refrigerator. Neither person, Hobart or his wife, Mrs. Martha Hobart, saw any defect in the remaining four Cokes. Hobart immediately returned to Henke's and had the two broken bottles replaced. When he returned, he placed them in the refrigerator, also.

On the next evening, Sunday, May 17, 1964, at about 9:00 p.m., while Mr. and Mrs. Hobart were watching television, Mrs. Hobart wanted to drink a Coke. She walked to the refrigerator, got a bottle of Coke, went to the sink, and as she started to open the bottle with an ordinary opener, the neck of the bottle broke suddenly. Mrs. Hobart's left middle finger was badly cut. Mr. and Mrs. Hobart restified that only the slightest pressure was exerted by Mrs. Hobart when she attempted to open the bottle and this testimony was later corroborated by Dr. William H. Tonn, who qualified as an expert concerning breaks of this nature .

Ralph W. Vardeman, an experienced store manager for Henke, who was assigned to the involved grocery store at the time, testified that the bottles of Coke were purchased directly from Coca Cola Bottling Company of Houston. Coca Cola sold to Henke three times a week--on Mondays, Wednesdays and Fridays. It made its deliveries early in the mornings as a rule. The Coca Cola delivery man put the Cokes on display and brought them into the store. Either Vardeman or one of his assistants checked the merchandise as to numbers of items and cases, which constituted about all of the checking at that time. The Coke employee stocked up the merchandise as the Coke employee saw fit. When one case was picked up, the roll-up plastic used in the display would roll back and hold the other items in place. Vardeman told the Coke employee how he wanted the job done, but he and his employees periodically checked for broken bottles, checked the display and the floors by walking up and down the aisles. There were visual checks made by the store employees to see that the merchandise was stacked properly and to see that there were no broken bottles. The customers of the store would often mix the bottles, and the customers had access to them. Customers would occasionally drop bottles and break them, and children had access to the merchandise. The store employees would then rearrange the display and straighten it up. Vardeman testified that Fridays and Saturdays are the busiest days at the store. When the display would not hold enough stock, cases and cartons of Coke would be used from the back room of the store where they had been put by Coca Cola. The store employees would replenish it if the stock became low. Hobart testified that everything looked orderly when he purchased the carton of Coke, and that he did not see the Henke employees mishandle the bottles.

Dr. William H. Tonn, Jr., a professional engineer who qualified as an expert witness, testified that he made an appraisal of the broken Coke bottle involved, and that the fracture occurred as a result of an opener being used to remove the cap from the bottle. The cap had only a slight imprint, and that only enough pressure had been applied to dent the bottle cap slightly. He testified that the glass broke with a concordal or compression type fracture. He used a dye penetrant technique to show up the latent cracks in the bottle . He found the wall thickness of the bottle to be uniform. The bottle was 7 1/2 inches high and 2 1/4 inches in diameter at the base. The lowest point of the fracture was 1.6 inches from the top. The bottle did not explode. He said that there can be a number of causes of a break of this type, but the opener did not break the bottle because insufficient force was used by Mrs. Hobart. He found an inverted 's' crack, but That none of the cracks had anything to do with the breaking of the bottle. He found no other latent defects. His testimony was that breaks can occur because of gas pressure, thermal cracks (hot bottle in cold environment), and external impact. He said that external impact causes a star fracture with cracks radiating out from the point of impact. The involved bottle had none of these, but the fact that two other bottles in the carton separated and broke in the carton Could indicate stress or outside forces. If the breaks were clean (around the bottle); he would favor thermal breaks, though impact breaks could not be ruled out. If he...