Coca-Cola Bottling Co. of Henderson v. Munn

• Citation: 99 F.2d 190
• Decision Date: 04 October 1938
• Docket Number: No. 4343.,4343.
• Parties: COCA-COLA BOTTLING CO. OF HENDERSON, Inc., v. MUNN.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

99 F.2d 190 (1938)

COCA-COLA BOTTLING CO. OF HENDERSON, Inc., v. MUNN.

No. 4343.

Circuit Court of Appeals, Fourth Circuit.

October 4, 1938.

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Before NORTHCOTT and SOPER, Circuit Judges, and CHESNUT, District Judge.

A. J. Fletcher, of Raleigh, N. C., for appellant.

J. Melville Broughton, of Raleigh, N. C., and T. Lanier, of Oxford, N. C. (R. W. Winston, of Oxford, N. C., on the brief), for appellee.

SOPER, Circuit Judge.

The Bottling Company appeals from a judgment for $3,641, obtained by Garland Munn, plaintiff in the District Court, in a cause of action for injuries sustained in drinking the contents of a Coca-Cola bottle containing a deleterious substance. The action was based on the charge that the Bottling Company had negligently allowed sodium hydroxide and sodium carbonate to be bottled with the beverage, with the result that the plaintiff was burned when he opened the bottle and drank therefrom.

The plaintiff purchased a bottle of Coca-Cola from a merchant who kept a grocery store and filling station, helping himself from an ice box as he was invited to do by a sign thereon. The bottle was sealed tight with a crown seal and was opened in the usual manner. Upon drinking from it the plaintiff felt a burning sensation in his mouth and throat. He called the merchant, who tasted the contents and was also burned. The top was replaced on the bottle by hand. The bottle and the remaining contents were taken to a physician and later analyzed in the office of the state chemist and found to contain sodium hydroxide and sodium carbonate in sufficient quantities to sear and burn the lining of the mouth and tongue when taken internally. The plaintiff was confined to the hospital for seven days on account of his burns and was later treated by a physician for a considerable period. He had trouble with his gums and teeth, his nerves were affected, and he had difficulty in retaining food and in working on his farm during the balance of the year.

The questions to be considered first relate to the sufficiency of the evidence offered by the plaintiff. It is contended that the District Court erred in failing to nonsuit the plaintiff under the North Carolina practice. The defendant moved for judgment as of non-suit at the conclusion of the plaintiff's evidence and renewed the motion at the conclusion of all of the evidence. At the latter time it also moved for a directed verdict in its favor; but all of the motions were denied. The defendant contends that the burden was upon the plaintiff to exclude the reasonable possibility of contamination from other sources than the defendant's plant, basing the argument on expressions in the opinion of Bourcheix v. Willow Brook Dairy, 268 N. Y. 1, 196 N.E. 617, 98 A.L.R. 1492. The court in that case, however, probably meant to say no more than that the plaintiff in a case of negligence must fail, if it is impossible to say from the evidence whether the injury complained of was brought about by negligence of the defendant or by some other cause. The plaintiff in an action for negligence in North Carolina is not required to prove his case beyond a reasonable doubt or to exclude the possibility of any other theory. Fitzgerald v. Railroad Co., 141 N.C. 530, 535, 54 S.E. 391, 6 L.R.A., N.S., 337. It is sufficient if he proves his case by a preponderance of evidence.

In the pending case the plaintiff offered evidence which, if believed, justified the conclusion that the alkali was not put in the bottle after it left the factory, for he testified that he took the bottle tightly sealed from the regular source of supply in the store, and opened it with a bottle opener. It is true that there was a lack of effervescence, but this does not destroy the effect of the evidence tending to show that the bottle had not been previously opened by some one other than the plaintiff. In North Carolina, as in New York, the essential basis of liability in a case like the present is negligence and not an implied warranty; Enloe v. Bottling Co., 208 N.C. 305, 180 S.E. 582; but the evidence we have discussed was not open to the defect now charged.

The motions for non-suit and for directed verdict were also based on the ground that the plaintiff's evidence was insufficient to support a verdict in his favor without resort to the doctrine of res ipsa loquitur which is not available to the plaintiff in a case like this under the North Carolina decisions. The question was discussed in Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A.,N.S., 949, in which the plaintiff sought to recover for damages suffered from the unexpected explosion of a Coca-Cola bottle; and the sufficiency of the occurrence and resulting injury to show negligence on the part of the defendant was considered. The court held that the doctrine of res ipsa loquitur only applies where, upon proof of an occurrence and of injury, the existence of negligence is the more reasonable probability and not where it rests only in conjecture; and that it would be entirely unsafe to hold that the explosion of a single bottle of Coca-Cola rises of itself to the dignity of legal evidence sufficient to carry a case to the jury. Nevertheless a judgment for the plaintiff was sustained in that case, because, in addition to the plaintiff's experience, instances of similar explosions of bottles filled by the defendant were proved, so that in the opinion of the court the evidence as a whole tended to show a want of proper care. Similar rulings were made in subsequent cases in which foreign and deleterious substances were found in bottles of Coca-Cola or other beverages; and it is now established law in North Carolina in cases like the present, that while a single incident is insufficient to prove negligence, yet if it is coupled with evidence showing that foreign or deleterious substances were found in other bottles filled under substantially similar conditions and sold by the defendant at or about the time of the plaintiff's injury, a case of negligence on the part of the defendant is made out. Cashwell v. Bottling Works, 174 N.C. 324, 93 S.E. 901; Lamb v. Boyles, 192 N.C. 542, 135 S.E. 464, 49 A.L.R. 589; Perry v. Bottling Co., 196 N. C. 175, 145 S.E. 14; Blackwell v. Bottling Co., 208 N.C. 751, 182 S.E. 469; Id., 211 N.C. 729, 191 S.E. 887; Enloe v. Bottling Co., 208 N.C. 305, 180 S.E. 582; Collins v. Bottling Co., 209 N.C. 821, 184 S.E. 834; McCarn v. Gastonia Bottling Co., 213 N.C. 543, 196 S.E. 837; Smith v. Bottling Co., 213 N.C. 544, 196 S.E. 822. In other jurisdictions the doctrine of res ipsa loquitur has been applied, and it has been held that a single instance of injury from a foreign substance in a sealed bottle is sufficient prima facie proof to take the case to the jury. See Fisher v. Washington C. C. Bottling Works, 66 App.D.C. 7, 84 F.2d 261, 105 A.L.R. 1034, and Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866.

The doctrine of res ipsa loquitur is a part of the law of evidence and deals with the sufficiency of proof to raise an inference of negligence on the part of the defendant and thus make out a prima facie case of the defendant's liability. The application of the doctrine in a given case may therefore materially affect the substantive rights of the parties; and it may be thought to involve a question which, like questions of substantive law under the recent decisions of the Supreme Court in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, and Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290, should be solved in a federal district court in a case of diverse citizenship in accordance with the decisions of the highest court of the state in which the case is tried. The same result would follow if the view is taken that the doctrine of res ipsa loquitur, as a part of the law of evidence, relates to procedural as distinct from substantive rights; for it is the well established rule in this and other circuits that the federal courts in the decision of questions of evidence are bound to follow not only the statutes but also the decisions of the highest court of the state where the trial occurs. See Franklin Sugar Ref. Co. v. Luray Supply Co., 4 Cir., 6 F.2d 218, 220, in which this court held that such a course of action is required as well by the statutes of the United States as by the decisions of the courts. See, also, Standard Oil Co. v. Cates, 4 Cir., 28 F.2d 718; Virginia Beach Bus Line v. Campbell, 4 Cir., 73 F.2d 97; Keur v. Weiss, 4 Cir., 37 F.2d 711. There are decisions to the contrary, notably Louisville & Nashville R. Co. v. McClish, 6 Cir., 115 F. 268; West Tennessee Grain Co. v. J. C. Schaffer & Co., 6 Cir., 299 F. 197; Chicago & N. W. R. Co. v. Kendall, 8 Cir., 167 F. 62, 16 Ann.Cas. 560; Massachusetts Bonding Co. v. Norwich Pharmacal Co., 2 Cir., 18 F.2d 934; but these decisions seem to have been influenced by the previously accepted rule that decisions of the state courts on questions of general law are not binding on the federal courts, a rule no longer tenable in view of the overruling of Swift v. Tyson, 16 Pet. 1, 18, 10 L.Ed. 865, by Erie Railroad Co. v. Tompkins and Ruhlin v. New York Life Ins. Co., supra. The same comment may be made upon the decisions in Patton v. Illinois Central R. Co., C.C., 179 F. 530, 532, and Montbriand v. Chicago, St. Paul, M. & O. R. Co., C.C., 191 F. 988, 990, in which the court refused to follow the application of the doctrine of res ipsa loquitur as laid down by the state courts on the ground that it concerned a question of general jurisprudence.¹

In the pending case, however, the evidence of the plaintiff was not confined to the single circumstance of his own injury but also included other accidents with bottles issued by the same defendant, so that assuming for the moment that the other instances were not too dissimilar or too remote in point of time to be admissible in evidence,...