Counts v. Coca-Cola Bottling Co. of St. Louis, No. 25623.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBennick
Citation149 S.W.2d 418
Docket NumberNo. 25623.
Decision Date08 April 1941
PartiesCOUNTS v. COCA-COLA BOTTLING CO. OF ST. LOUIS.
149 S.W.2d 418
COUNTS
v.
COCA-COLA BOTTLING CO. OF ST. LOUIS.
No. 25623.
St. Louis Court of Appeals. Missouri.
April 8, 1941.
Rehearing Denied April 22, 1941.

[149 S.W.2d 419]

Appeal from St. Louis Circuit Court; William K. Koerner, Judge.

"Not to be reported in State Reports."

Action by Paul Counts against the Coca-Cola Bottling Company of St. Louis for personal injuries. Judgment for plaintiff, and defendant appeals.

Affirmed.

Lashly, Lashly, Miller & Clifford, Clark M. Clifford, and Robert G. Maysack, all of St. Louis, for appellant.

Howard Elliott and Royal L. Coburn, both of St. Louis, for respondent.

BENNICK, Commissioner.


This is an action for damages for personal injuries sustained by plaintiff, a counterman for the White Castle Company, when a bottle of Coca-Cola exploded in his hand while he was removing the bottle from a rack underneath the counter preparatory to placing it in the ice box. The defendant is the Coca-Cola Bottling Company of St. Louis, the local manufacturer and distributer of Coca-Cola, from which the particular bottle had been purchased by plaintiff's employer in the usual custom of the trade.

Tried to a jury upon the theory of res ipsa loquitur, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $1,000. Judgment was rendered in conformance with the verdict; and defendant's appeal to this court has followed in the usual course.

According to plaintiff's evidence, deliveries were made three times a week by defendant's driver, and the cases stored in the back storage room from which sufficient bottles to serve the daily trade would be brought out from time to time by plaintiff or some one of his fellow employees, and placed in a rack conveniently located underneath the counter. As cold bottles were sold to customers, other bottles would be taken out of the rack and placed in the ice box to be cooled; and it was while undertaking to transfer two bottles from the rack to the ice box in the place of two which he had sold a moment before that plaintiff received the injury to his hand for

149 S.W.2d 420

which he seeks damages in this proceeding.

Plaintiff's evidence disclosed that the particular bottle had been received from defendant on the morning of the day before the accident; that when brought out and placed in the rack underneath the counter, it was in the same condition as when received from defendant; that the bottle had not been dropped, subjected to heat or cold, or tampered with in any manner by plaintiff or any one of his fellow employees; that immediately upon being lifted out of the rack, the bottle exploded with a sound like the bursting of a blown-up paper bag; and that when the pieces of glass were thereafter gathered up off of the floor, it was found that the cap was still on the neck of the broken bottle.

Defendant's evidence was to the effect that after the bottles are washed in its plant, they are placed on a conveyor train and pass before an inspector to be inspected against a light as to whether they are clean and perfect; that the bottles are inspected at the rate of 120 a minute; that a bottle is used over and over again "as long as it looks presentable and is a good bottle", but is removed by the inspector "if it doesn't look all right" or if "some defect visible to the eye shows up"; that after the bottles pass the inspector, the proper amount of syrup is placed in each bottle; and that the bottles are then filled up with carbonated water under a pressure of 21 pounds, are capped, and the syrup and water mechanically mixed together, after which they pass on to the loading platform, where they are placed in cases ready for sale and delivery.

Other of defendant's evidence was to the effect that according to tests, a Coca-Cola bottle will withstand an average internal pressure up to 670 pounds, with the cap giving way at 155 pounds, all in support of defendant's theory (which the jury's verdict has resolved to the contrary) that it is impossible for a bottle to explode from its internal pressure, and that there must consequently have been some external force or pressure which was responsible for the explosion of the particular bottle in plaintiff's hand.

Defendant's assignments of error are limited to the giving of plaintiff's instructions Nos. 1 and 2, and the refusal of defendant's requested instruction B. Such instructions were as follows:

Plaintiff's Instruction No. 1. "The Court instructs the jury that if you find and believe from the evidence that on the twenty-first day of June, 1938, plaintiff was in the employ of the White Castle System as a counterman and cook, and that the said White Castle System had purchased from the defendant Coca-Cola Bottling Company of St. Louis a quantity of Coca-Cola in glass bottles to be sold to the public as a beverage, and that the contents of said bottles were manufactured and placed in said bottles by the defendant, and if you further find that the plaintiff, in the discharge of his usual and regular duties as an employee of the said White Castle Company, picked up one of the bottles of Coca-Cola so purchased, if you so find, for the purpose of transferring same from a rack to the ice box mentioned in evidence, and if you further find that while the plaintiff was so handling said bottle, if you so find, that said bottle of Coca-Cola exploded and burst in plaintiff's hand, and if you further find and believe from the evidence that said explosion, if you find there was an explosion, was the direct and proximate result of the negligence of the defendant, and that by reason thereof, a piece of glass from said bottle was caused to strike plaintiff's hand, if you so find, causing plaintiff to be injured as a direct result thereof, then your verdict should be in favor of the plaintiff, and against the defendant Coca-Cola Bottling Company of St. Louis."

Plaintiff's Instruction No. 2. "The Court instructs the jury that the burden is upon the plaintiff to prove by the greater weight of the evidence that defendant was guilty of negligence and that said negligence directly...

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6 practice notes
  • State of Missouri v. Hammett, No. 20847.
    • United States
    • Missouri Court of Appeals
    • 2 Junio 1947
    ...v. Westport Laundry Co., 25 S.W. 2d 491, 497; Dohring v. Kansas City, 81 S.W. 2d 943; Counts v. Coca Cola Bottling Co. of St. Louis, 149 S.W. 2d 418; Pogue v. Rosegrant, 98 S.W. 2d 528; Greer v. St. Louis Public Service Company, 87 S.W. 2d 240; Lewis v. Zagata. 166 S.W. 2d 541; Wheeler v. B......
  • Frazier v. Ford Motor Co., No. 43538
    • United States
    • United States State Supreme Court of Missouri
    • 14 Febrero 1955
    ...fully covered by an instruction given on behalf of plaintiff, was not error, the court in Counts v. Coca-Cola Bottling Co., Mo.App., 149 S.W.2d 418, 423, observed that defendant would have had a sound basis for complaint had the instruction hypothesized findings of fact upon an issue of fac......
  • Florence Coca Cola Bottling Co. v. Sullivan, 8 Div. 638
    • United States
    • Supreme Court of Alabama
    • 26 Marzo 1953
    ...677; Stolle v. Anheuser-Busch [Inc.], 307 Mo. 520, 271 S.W. 497, 39 A.L.R. 1001; Counts v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 149 S.W.2d 418.' The Court of Appeals of Louisiana dealt with the subject of a bursting bottle in the case of Lanza v. De Ridder Coca Cola Bottling Co., 3......
  • Stephens v. Coca-Cola Bottling Co. of St. Louis, No. 27430.
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Noviembre 1948
    ...ipsa loquitur" applied. The same doctrine was applied by this Court in Counts v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 149 S.W.2d 418. The last named case involved injuries resulting to the plaintiff therein when a bottle of Coca Cola exploded in his hand while he was removing ......
  • Request a trial to view additional results
6 cases
  • State of Missouri v. Hammett, No. 20847.
    • United States
    • Missouri Court of Appeals
    • 2 Junio 1947
    ...v. Westport Laundry Co., 25 S.W. 2d 491, 497; Dohring v. Kansas City, 81 S.W. 2d 943; Counts v. Coca Cola Bottling Co. of St. Louis, 149 S.W. 2d 418; Pogue v. Rosegrant, 98 S.W. 2d 528; Greer v. St. Louis Public Service Company, 87 S.W. 2d 240; Lewis v. Zagata. 166 S.W. 2d 541; Wheeler v. B......
  • Frazier v. Ford Motor Co., No. 43538
    • United States
    • United States State Supreme Court of Missouri
    • 14 Febrero 1955
    ...fully covered by an instruction given on behalf of plaintiff, was not error, the court in Counts v. Coca-Cola Bottling Co., Mo.App., 149 S.W.2d 418, 423, observed that defendant would have had a sound basis for complaint had the instruction hypothesized findings of fact upon an issue of fac......
  • Florence Coca Cola Bottling Co. v. Sullivan, 8 Div. 638
    • United States
    • Supreme Court of Alabama
    • 26 Marzo 1953
    ...677; Stolle v. Anheuser-Busch [Inc.], 307 Mo. 520, 271 S.W. 497, 39 A.L.R. 1001; Counts v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 149 S.W.2d 418.' The Court of Appeals of Louisiana dealt with the subject of a bursting bottle in the case of Lanza v. De Ridder Coca Cola Bottling Co., 3......
  • Stephens v. Coca-Cola Bottling Co. of St. Louis, No. 27430.
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Noviembre 1948
    ...ipsa loquitur" applied. The same doctrine was applied by this Court in Counts v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 149 S.W.2d 418. The last named case involved injuries resulting to the plaintiff therein when a bottle of Coca Cola exploded in his hand while he was removing ......
  • Request a trial to view additional results

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