Copher v. Barbee, s. 8104

Decision Date01 October 1962
Docket NumberNos. 8104,8106,s. 8104
PartiesLola Mae COPHER, Plaintiff-Respondent, v. E. L. BARBEE d/b/a Royal Crown Bottling Company and Safeway Stores, Inc., Defendants-Appellants.
CourtMissouri Court of Appeals

McReynolds, Flanigan & Flanigan, George M. Flanigan, Carthage, for defendant-appellant, E. L. Barbee, d/b/a Royal Crown Bottling Co.

Richard K. McPherson, Richart, Titus & Martin, Joplin, for defendant-appellant, Safeway Stores, Inc.

Myers & Birk, Edward G. Farmer, Jr., Joplin, for plaintiff-respondent.

STONE, Judge.

In this factually-unique rolling-exploding bottle case, the trial court, sitting as a jury, entered judgment for $3,429.80 in favor of plaintiff, Lola Mae Copher, and against defendants, E. L. Barbee d/b/a Royal Crown Bottling Company and Safeway Stores, Inc. From that judgment, Barbee and Safeway have perfected separate appeals, which have been consolidated for appellate disposition.

The accident under consideration occurred shortly after 8 P.M. on Wednesday, July 16, 1958, in Safeway's self-service store in Webb City, Missouri. Plaintiff, 47 years of age, on an errand for her mother 'to pick up a carton of strawberry pop and a sack of potatoes,' entered the front of the store which faced toward the south and immediately proceeded to 'the pop display' which was along the east wall about midway between the front and the rear of the store. In describing the pop display plaintiff said that there were 'pop bottles, empty bottles, fully bottles, sitting on the floor,' with some in cartons and some out of cartons; that there were both full and empty bottles on the shelves (there was more than one shelf but 'how many I don't know'); and that some of the pop was stacked (it was not stacked to her 'eye level' but 'how high . . . I don't know'). Plaintiff's witness Martin (not a Safeway employee), who for some thirty to forty-five minutes prior to the explosion had been working on the refrigeration unit of an ice cream cabinet along the east wall adjacent to and immediately north of the pop display, was uncertain and indefinite in his description of the pop display: 'It was either a wooden rack or a metal rack with bottles, some of them was on the floor. As I remember, there could have been two or three cartons on the floor . . . and I think they were stacked on the south end of the (ice cream) cabinet. Now, whether that was in a shelving, I wouldn't want to say that.' Similarly, on direct examination Martin 'couldn't tell . . . for sure'--'I wouldn't want to'--whether there were any loose bottles on the floor, although on cross-examination he thought that, after the explosion, he had seen some loose bottles at the south end of the ice cream cabinet.

Whatever the precise state of the pop display might have been at that time, plaintiff stood (so the said) 'possibly three minutes' in front of that display looking for strawberry pop. As her further testimony ran, she observed a man (subsequently identified as witness Martin) working north of the pop display; but, to the best of her knowledge, no one was in the immediate vicinity of the pop display while she was in front of it. She stood 'a few steps' from the display and (so she insisted upon trial) neither touched nor reached for any bottle or carton. Suddenly (in her language) 'I heard two bottles--saw two bottles just rolling on the floor from the direction of where the pop was stacked and I looked at it.' The 'sound' attracted her attention to the bottles, already rolling on the floor when she first saw them. She did not know in what place or position the bottles had been or what had caused them to roll, but she was sure that they were 'rolling from the pop section--not to it, but from it.' As she watched them, the bottles rolled 'a short ways' (her statement upon trial) or about four or five feet (her deposition estimate). When 'they stopped rolling, I went over and picked one bottle up . . . put it in a carton that I picked up from the floor and set it (on) either the first or second shelf,' and then 'went to pick the other bottle up.' As she was bending over with her right hand 'close' to it--'just ready to take hold'--the bottle on the floor 'blew up' resulting in a severe laceration on her right arm and glass fragments in her face and neck. Plaintiff positively identified both rolling bottles as having been filled bottles of Royal Crown Cola.

Witness Martin, the refrigeration engineer, thus described the occurrence: 'Well, the first thing that drew my attention was, it sounded like a bottle had been tipped or had been dropped--I wouldn't say which way--they would be the same amount of sound, and it drawed my attention and I turned around and, as I can remember it, the bottle was rolling and (plaintiff) was reaching over to pick it up,' when the bottle 'exploded' with sufficient force that glass fragments were thrown into Martin's tool box some six feet distant. As with plaintiff, Martin had 'no idea whatsoever' as to what had put the bottle in motion. Significantly, Martin stated that, during the preceding thirty to forty-five minutes while he had been working on the nearby refrigeration unit, he had seen no one around the pop display. Other evidence will be noted in connection with our discussion of the legal questions raised.

Plaintiff undertook to plead a cause of action under the res ipsa loquitur doctrine against both defendants, and the primary and principal issue upon defendant Barbee's appeal is whether 'plaintiff is entitled to the doctrine of res ipsa loquitur in her suit against the bottler.' Among the cases cited under this point in plaintiff's brief is Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, which is indeed the leading and controlling authority in this jurisdiction on the question as to whether there may be a res ipsa submission against the bottler under circumstances such as those in the instant action; but neither Maybach, supra, nor Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App., 320 S.W.2d 292 (also cited in plaintiff's brief), in which we followed Maybach, afford any foundation for plaintiff's contention that she may invoke the res ipsa doctrine against bottler Barbee. Quite to the contrary, our Supreme Court plainly and pointedly said in Maybach, supra, that '(w)e do not regard this as a res ipsa loquitur case . . .' [359 Mo. loc. cit. 451, 222 S.W.2d loc. cit. 89], again that '(m)ere proof of the explosion did not create an inference of negligence on the part of defendant (bottler) and thus bring the case under the res ipsa rule' [359 Mo. loc. cit. 453, 222 S.W.2d loc. cit. 90(5)], and finally that 'the case should be submitted, not as a true res ipsa loquitur case, but as one depending in part upon circumstantial evidence.' [359 Mo. loc. cit. 456, 222 S.W.2d loc. cit. 92] (All emphasis herein is ours.) The rationale of this holding, as sound and logical today as it was then, was well-stated in this language: 'An essential element of the res ipsa doctrine is that proof of the occurrence and attendant circumstances shall point, prima facie, to negligence on the part of the defendant. Such proof cannot, without further proof, point to the negligence of a defendant who is entirely out of control of the instrumentality at the time it causes the injury. Such proof may tend to indicate negligence on the part of some one, but further proof is necessary to definitely fix the blame on the defendant by excluding causes for which he is not responsible.' [359 Mo. loc. cit. 453, 222 S.W.2d loc. cit. 90]

In harmony with Maybach, supra, the subsequent decisions in Missouri have held uniformly that an action of this character may not be submitted against the bottler under the res ipsa loquitur doctrine but that this does not preclude a plaintiff from making a submissible case of general negligence by circumstantial evidence [Kees v. Canada Dry Ginger Ale, Mo.App., 225 S.W.2d 169, 171(3); Stephens v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 232 S.W.2d 181, 187-188; Ferrell, supra, 320 S.W.2d loc. cit. 294], when plaintiff's 'proof as to the explosion itself (is) coupled with and supplemented by substantial evidence tending to show that, after the bottle (which subsequently expolded) had passed from defendant's (the bottler's) possession and control, it had not been damaged or handled negligently and had not been subjected to unusual temperature change.' Ferrell, supra, 320 S.W.2d loc. cit. 294-295.

In an effort to escape from the controlling authority of Maybach, supra, instant plaintiff boldly argues that the earlier case of Stolle v. Anheuser-Busch, 307 Mo. 520, 271 S.W. 497, 39 A.L.R. 1001 (in which plaintiff was permitted to plead a cause of action against the bottler under res ipsa), although 'questioned . . . has never been positively overruled' and 'is still the law of Missouri.' A sufficient answer to this argument is found in Maybach, supra, where the court said that '(w)e think the result reached in sustaining the petition in the Stolle case is correct, because to petition states a cause of action for general negligence, (b)ut we think the opinion extends the res ipsa doctrine too far and farther than we have been willing to extend it in other cases' and then announced the unequivocal ruling, accompanied by the hereinbefore-quoted statement of rationale, that plaintiff Maybach had not made a res ipsa case. [359 Mo. loc. cit. 453, 222 S.W.2d loc. cit. 90] We note also that the St. Louis Court of Appeals had no difficulty in discovering and no hesitancy in stating that 'the Stolle case has been overruled by the Maybach case.' Stephens, supra, 232 S.W.2d loc. cit. 187.

In like vein but (as we think) with no more basis, plaintiff's counsel vigorously insist that Parlow v. Carson-Union-May-Stern Co., Mo., 310 S.W.2d 877, 'strongly qualifies and almost completely overrules' Maybach, supra, and that Adam Hat Stores v. Kansas City, Mo. (banc), 316 S.W.2d 594, ...

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