Edwards v. Springfield Coca-Cola Bottling Co., Inc.

• Decision Date: 11 May 1973
• Docket Number: Nos. 9160,COCA-COLA,9161,s. 9160
• Citation: 495 S.W.2d 489
• Parties: Maurine EDWARDS, Plaintiff-Appellant, v. SPRINGFIELDBOTTLING CO., INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 489

495 S.W.2d 489

Maurine EDWARDS, Plaintiff-Appellant, v. SPRINGFIELD COCA-COLA BOTTLING CO., INC., Defendant-Respondent.

Nos. 9160, 9161.

Missouri Court of Appeals, Springfield District.

May 11, 1973.

Farrington, Curtis & Strong, Thomas Strong, William J. Hart, Springfield, for plaintiff-appellant.

Woolsey, Fisher, Clark & Whiteaker, Harold J. Fisher, Russell G. Clark, Springfield, for defendant-respondent.

STONE, Judge.

For personal injuries caused by fragments of an exploding bottle, plaintiff Maurine Edwards sued Springfield Coca-Cola Bottling Company, a corporation (hereinafter 'Coke'), and Thrifty Foodliner, Inc. (hereinafter 'IGA'). In the course of a three-day jury trial, defendant IGA paid plaintiff $12,500 (which was in addition to voluntary pretrial payments aggregating $4,947.96), whereupon plaintiff voluntarily dismissed as to IGA and executed a covenant not to sue that defendant. Proceeding to a conclusion against defendant Coke, plaintiff had a nine-member jury verdict assessing her damages at $25,00 but deducting therefrom (pursuant to instruction 6) the sum of $17,447.96 (the aggregate amount theretofore paid by IGA), leaving a 'net income due' of $7,552.04, for which judgment was entered against Coke. However Coke's timely after-trial motion to set aside the aforesaid verdict and judgment and to enter judgment for Coke in accordance with its motion for directed verdict at the close of the evidence was sustained; and from the judgment for Coke then entered, plaintiff appeals. The primary and dispositive issue here is as to whether or not plaintiff presented a submissible case.

During 1965, IGA opened a supermarket on East Commercial Street in Springfield. Edwin R. Jones, Coke's 'home market manager' for some twenty years, contacted Gene Hudson, who was in charge of 'setting up' this IGA supermarket, and explained the services Coke would provide for such stores. In the ensuing conversation, Jones told Hudson that Coke would construct and install, at its expense, the entire display unit (usually referred to in the transcript and sometimes hereinafter as 'the soft drink department') for the display of not only Coke's products but also those of other soft drink bottlers, if in return IGA would allow Coke to choose the location within the soft drink department where its products would be displayed. With this understanding, Coke constructed and thereafter maintained the display unit in this IGA supermarket.

At the time of plaintiff's injury, the soft drink department (moved from its initial location) was in the northwest corner of the market, with the display unit along the north wall, facing south, just west of the meat counter. Although we find no definite testimonial statement on this factual detail, the photographic exhibits indicate that the display unit was some 24 feet in length. The base of the display unit, the bottom shelf (perhaps four inches above the floor), both ends, the five intermediate vertical supports (spaced at intervals of about four feet), and the top shelf (approximately 54 inches above the floor) were constructed of 3/4 plywood. In the space between the bottom and top plywood shelves, three rows of 'spring-away' shelves purchased by Coke from the Spring-Away Company in Chicago were affixed to the back of the display unit. According to the only evidence on this subject, 'spring-away' shelves were 'commonly and generally used' in soft drink display units not only in Springfield but also 'around the country.'

By examination and measurement of the two 'spring-away' shelves received as exhibits in the trial court and presented here, we find that each such shelf was 6 3/4 in width and either 26 or 21 in length ¹ and was formed by ten small round metal rods mounted in a parallel pattern on, and welded to, four underlying small round metal crossrods. One of those crossrods was at the rear end of the shelf and constituted an integral part of the mechanism affixed to the back of the display unit. Another crossrod was at the front or outer end of the shelf, and the other two crossrods were at intermediate points equidistant from the two ends of the shelf. The ten parallel rods constituting the shelf were spaced at regular intervals on the underlying crossrods, so that the distance between any one of those ten rods and the nearest adjacent parallel rod was no more than three-quarters inch. Each 'spring-away' shelf was hinged in the mechanism at the rear end of the shelf and was counter-balanced in that mechanism by a spring of sufficient strength to lift only the weight of the shelf, so that, with nothing on it, the shelf would rise to a vertical position against the back of the display unit. When placed in use, the shelf was pulled down to a horizontal position so that it rested on the cartons of soft drinks on the next lower level. If loaded with such cartons when not so supported by cartons beneath, the shelf would decline below horizontal.

In keeping with the customary practice in supermarkets, a cooler for the dispensation of single small bottles of soft drinks was installed just inside an entrance at the southeast corner of this IGA supermarket, and cartons of uncooled small-size bottles, individual 28-oz. and 32-oz. bottles, and individual cans were exhibited in the above-described display unit in the northwest corner of the store. 'Practically all' of the top plywood shelf of the display unit was used by IGA 'most of the time' for displaying individual large bottles and cans and a few cartons of 'no return bottles.' Two or more layers of cans frequently were stacked on portions of this top shelf. Cartons of smaller bottles were displayed on the bottom plywood shelf and on the rows of 'spring-away' shelves between the bottom and top shelves.

The products of Coke and four other Springfield bottlers, as well as IGA's 'privately owned and bottled brand,' were displayed in the soft drink department. Of course, each bottler initially stocked its own products, and from time to time thereafter replenished that stock, in a certain designated section of the display unit. Coke's route salesman or 'deliveryman' usually came to this IGA soft drink department three times each week; but, during a week when Coke had a 'promotion,' the deliveryman probably would be there four or five times. Coke's 'home market manager' Jones also checked the Coke display 'about twice a week.' There was no showing as to when or how frequently any other bottler checked its stock in this display unit. Customers in this, as in other, supermarkets handled and frequently left on the floor single bottles removed from cartons in the display unit; and when, on his visits to this market, Jones found any such bottle on the floor, he always placed it in a carton and never set it individually on any shelf.

Late in the afternoon of Friday, April 4, 1969, plaintiff Mrs. Maurine Edwards, then 59 years of age, went to the IGA supermarket on East Commercial Street, where she had done her 'main shopping . . . for a long time.' When she entered the store that afternoon, she got a shopping cart, picked up some fruit on the north side of the market, and pushing her cart in front of her proceeded west to the soft drink department where she intended to pick up some canned Pepsi. Observing a lady standing in front of that section of 'the pop display,' plaintiff stopped behind but 'a little to the right of her.' Plaintiff's account of the accident on direct examination was standing there she moved her lady) was standing there she moved her (right) foot and tipped a bottle over, ² a bottle of pop that was sitting on the floor up against the wall by the pop display, and . . . it rolled towards me, not right up to me but almost . . . and she stooped over and picked it up and placed it back . . . where it was in the first place . . . and after she walked on . . . I picked up my two cans of pop, one in each hand . . . and I turned around to put my pop in the basket when I heard this loud noise, it sounded like an explosion . . ..' Plaintiff 'never felt one thing' but, when she saw blood and glass on the floor, she looked at her left leg and discovered that it was bleeding. Medical testimony upon trial, which need not be reviewed here, showed that substantial injury, involving severe lacerations of muscles and tendons in her left ankle area which required operative procedures, had been caused by the exploding bottle.

With respect to the bottle 'tipped' or 'kicked' over by the other lady, plaintiff professed no knowledge, and the transcript reveals nothing, other than that it was 'a green bottle.' ³ When plaintiff's attention was called to this green bottle as it was kicked over and rolled toward her, she noticed two or three other 'dark colored' bottles in the same area on the floor, but it was the green bottle that exploded and injured her. After her accident, she remembered that she had seen bottles on the floor while shopping in this IGA supermarket on other occasions prior to the date of her injury; but, since she usually purchased canned soft drinks displayed on the top shelf, she previously had paid no attention to bottles on the floor.

That the tedious winnowing and recordation of additional factual detail may be minimized, we now turn to the issue submitted by plaintiff in the trial court and to her theory on this appeal. In her second amended petition upon which she proceeded to trial, plaintiff charged specific negligence on the part of both defendants in twelve assignments and additionally on the part of defendant Coke in four more assignments. However, plaintiff's submission in her verdict-directing instruction 2 (characterized by her counsel as 'MAI 31.01, MAI 22.03, MAI 19.01, and MAI 7.01 modified') did not track any of the sixteen assignments of negligence in her second amended petition but directed a verdict for plaintiff upon findings that 'First' defendant (Coke) built the soft drink...