Early-Gary, Inc. v. Walters

• Decision Date: 06 May 1974
• Docket Number: EARLY-GAR,INC,No. 47494,47494
• Citation: 294 So.2d 181
• Parties: , and H. J. Heinz Company v. W. M. WALTERS.
• Court: Mississippi Supreme Court

Page 181

294 So.2d 181

EARLY-GARY, INC., and H. J. Heinz Company v. W. M. WALTERS.

No. 47494.

Supreme Court of Mississippi.

May 6, 1974.

Thompson, Alexander & Crews, Jackson, Harold W. Melvin, Laurel, for appellants.

Collins & Tew, Laurel, Bowling, Coleman & Cothren, Jackson, for appellee.

INZER, Justice:

This is an appeal by Early-Gary, Inc. and H. J. Heinz Company from a decree of the Chancery Court of Jones County awarding appellee W. M. Walters $15,000 as damages for personal injuries sustained while trying to open a bottle of ketchup.

Appellee instituted this suit by way of attachment in the Chancery Court of Jones County against H. J. Heinz Company, a non-resident debtor, and Early-Gary, Inc., a domestic corporation. Walters sought recovery against H. J. Heinz Company, hereinafter referred to as Heinz, on the theory that it was strictly liable in tort for a defect in a bottle which rendered it unreasonably dangerous and not reasonably safe for its intended use. The suit against Early-Gary, Inc., hereinafter referred to as Early-Gary, was based upon the theory that it was negligent in failing to loosen or remove the cap from the bottle before serving it. The defendants separately answered denying the allegations against them and raising the defense that appellee's own handling of the ketchup bottle was an intervening and superseding cause of the injuries suffered.

The evidence is undisputed that on April 1, 1965, appellee W. M. Walters, a bank examiner, and four other bank examiners went to the Benbow Snack Bar, operated by Early-Gary in the City of Laurel for their evening meal. After they were served the food, Mr. Elia, one of the members of the party, asked the waitress for ketchup. The waitress went to the pantry and obtained an unopened 14 ounce bottle of Heinz ketchup and placed it on the table. Mr. Elia attempted to open the bottle, but could not do so. He handed the bottle to appellee and requested him to open it. Appellee gripped the cap within one hand while holding the bottle with the other and tried to open it, but was unable to do so. No waitress was available at that particular time to assist the men, so appellee, noticing no defects in the bottle, inverted it and holding it by the neck with his left hand, bumped the bottom of the bottle one time with his right hand. The bottom of the bottle broke on impact with the palm of appellee's hand, but the walls of the bottle remained intact and inflicted a severe wound in his hand. Two tendons to the index finger were severed along with a sensory nerve in the thumb. Surgery was required, and appellee suffered a ten percent permanent disability to his hand.

Dr. William B. Hall, a ceramic engineer and professor at Mississippi State University, was tendered and accepted as an expert witness on behalf of appellee. Dr. Hall received a B.S. degree from the University of Texas in ceramic engineering, a M.S. degree from Mississippi State University in ceramic engineering, and a Ph. D. at Mississippi State University in engineering. Glass is one of the divisions of ceramic engineering. Dr. Hall had several courses in glass and had worked in industry for three years and several summers where glass was a part of his work. At the time of this trial, he taught a course at Mississippi State University in glass estate, which encompasses the manufacturing process, the forming, the structure and various compositions of the glass estate. Dr. Hall testified that at the request of appellee, he purchased four, 14 ounce bottles of Heinz ketchup from a supermarket in Starkville. With the aid of a laboratory assistant, he performed a test with the bottles to ascertain if they would break under a hard blow with a hard rubber hammer. The bottles with the caps still intact as purchased from the supermarket were placed neck down in a funnel which was held by Dr. Hall while his assistant struck the bottle on the bottom as hard as he could with the hammer. None of the bottles broke under this test, although each of the bottles was struck several times with the hammer. Dr. Hall also demonstrated to the court how he performed the tests by striking the bottom of one of the bottles with the hammer. In answer to a hypothetical question involving the facts of this case, Dr. Hall was asked if he had an opinion as to the cause of the bottle which appellee bumped with his hand breaking immediately on impact. He said he did, and it was his opinion that there was a defect in the bottle and that the defect occurred prior to the time it was packed for shipment by Heinz.

Mr. Allen C. Skiddle, manager of packaging and materials evaluation for Heinz, testified that he had charge of testing procedures and development of packaging material. Although Heinz does not manufacture the glassware used in bottling of ketchup, it does furnish the specifications and design to which the bottles must conform. He described the manufacturing procedures from the time the bottles are received from the suppliers. Throughout the process tests designed for 95 percent assurance of quality are conducted on bottles selected at random. These tests include both visual inspection and a thermal shock of 40 degrees when the bottle is filed with hot ketchup. After bottling, the product is packaged in cardboard boxes for shipment to customers. The boxes are designed to meet shipping requirements and to meet the Mullen test at 200 pounds. This test is a means of testing the bursting strength of the packaging material. Mr. Skiddle was of the opinion that the breakage of the bottle in question was due to a phenomenon called hydrodynamic breakage, commonly called water hammer. He admitted that the bottle ordinarily will withstand normal tapping on the bottom without breaking due to water hammer. He admitted that television advertisements by Heinz depicted the product as difficult to get out of the bottle and showed people bumping the bottle on the bottom to remove the ketchup from the bottle. However, he pointed out that the bottle cap had been removed from the bottles which were shown, and that water hammer effect could not occur if the cap were loosened or removed.

Daniel J. O'Connell, a licensed consulting engineer, qualified as an expert in the field of glassware and testified on behalf of Heinz. He explained the phenomenon of water hammer or hydrodynamic pressure as follows:

. . . (T)aking the container first, if I hold a container or any object and hold it fairly steadily and hit it, I set up a stress wave in the object. The stress wave travels down, when it hits the bottom of the object if the object is free, it turns from compression to tension. It is then reflected and comes back to the free end at the other end and again is reflected as tension. The reflection doubles the tensile stress, so we have high stress due to impact. Now the contents are not welded to the bottle and the contents in the bottle tend to move independently of each other. Striking the bottle moves the bottle. When the bottle stops the contents keep going, just as a person in an automobile would be thrown forward when the brakes are put on the car. Th contents then moving forward strike again and that again causes an impact, but then something else happens that is quite peculiar. When the contents move forward the pressure on the back of the contents is reduced and it is reduced well below room or atmospheric pressure. As a matter of fact, in a hot vacuum packed material the internal pressure in a bottle is below atmosphere-it is of the order of about twenty inches of mercury, that is, instead of having 14.7 pounds pressure on the inside to balance 14.7 on the outside you have an absolute pressure on the inside of the bottle of approximately five pounds. At low pressures water will evaporate and form a bubble and then when a bottle catches up with the contents or the contents catch up with the bottle, these bubles break and they cause terrific pressure, but they cause them in the localized spot, very localized and when sufficient, they combine with the other tensile stresses due to the impact to cause a sound container to break. There is no doubt about it.

Mr. O'Connell did no think that the method that Walters chose to loosen the cap on the bottle was a reasonable method. In fact, he was of the opinion that it was the hardest way to remove the cap. He was also of the opinion that the tests performed by Dr. Hall were in reality no test at all. On cross examination, he admitted that defective bottles do come out of manufacturing processes. He said that bruises or scratches reduced the strength of glass, but with a sound bottle, a normal slap on the bottom would not create the water hammer effect or cause breakage. It would take a heavy or severe blow on the base to break a sound bottle without defect. The blow would have to be heavy enough to hurt the hand striking the blow. He admitted that the water hammer effect would tend to loosen the cap but was quick to point out that he would...