Evangelist v. Bellern Research Corp.

• Decision Date: 13 November 1967
• Docket Number: No. 44799,44799
• Parties: Felix A. EVANGELIST, Appellant, v. BELLERN RESEARCH CORPORATION, a Corporation, Brockway Glass Co., a Corporation, Owens-Illinois Glass Company, a Corporation, Conway Springs Bottling Company, a Corporation, and Pepsi-Cola Bottling Company of Wichita, a Corporation, Appellees.
• Court: Kansas Supreme Court

Page 380

433 P.2d 380

199 Kan. 638

Felix A. EVANGELIST, Appellant, v. BELLERN RESEARCH CORPORATION, a Corporation, Brockway Glass Co., a Corporation, Owens-Illinois Glass Company, a Corporation, Conway Springs Bottling Company, a Corporation and Pepsi-Cola Bottling Company of Wichita, a Corporation, Appellees.

No. 44799.

Supreme Court of Kansas.

Nov. 13, 1967.

Syllabus by the Court

1. In reviewing the propriety of an order sustaining a motion for directed verdict, this court, like the trial court in considering the motion, must resolve all facts and inferences reasonably to be drawn from the evidence of favor of the party against whom the ruling is sought; and when the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury.

2. The burden of proving a breach of implied warranty is on the plaintiff, and to sustain the burden evidence must be adduced from which it may reasonably be inferred that the defect in the product existed at the time it left the possession or control of the party sought to be held liable.

3. The nature of the product is of manifest importance in determining whether or not implied warranty protection should be extended as a matter of public policy.

4. An implied warranty of manufacturer-design in respect to a simple household device known as a 'Handy Dandy,' the nature of which is described in the opinion, is not recognized in this jurisdiction.

5. In an action by one who sustained injury when a partially filled Pepsi-Cola bottle broke as he was recapping it with a recapping device, the record is examined, and it is held: (1) plaintiff's evidence was insufficient to establish a breach of implied warranty as against the manufacturer, bottler and distributor of the bottle; (2) plaintiff as a matter of law could not recover against the manufacturer of the device for alleged breach of implied warranty of design; and (3) the trial court properly sustained motions for a directed verdict on behalf of all defendants.

Gerald L. Michaud, Wichita, argued the cause, and Russell Cranmer, Orval L. Fisher, M. William Syrios, and Kenneth L. Ingham, Wichita, were with him on the brief for appellant.

Donald R. Newkirk, Wichita, argued the cause, and Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Gerrit H. Wormhoudt, Philip Kassebaum, John E. Rees, Robert T. Cornwell, Willard B. Thompson, David W. Buxton, John T. Conlee, John Prather, Richard I. Stephenson, and Douglas D. Johnson, Wichita, were with him on the brief for appellee, Bellern Research Corporation.

H. E. Jones, Wichita, argued the cause, and A. W. Hershberger, Richard Jones, Wm. P. Thompson, Jerome E. Jones, Robert J. Roth, William R. Smith, Robert J. O'Connor, and Greer Gsell, Wichita, were with him on the brief for appellee, Brockway Glass Co.

Robert C. Foulston, Wichita, argued the cause, and George B. Powers, John F. Eberhardt, Stuart R. Carter, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Gerald Sawatzky, Donald L. Cordes, Robert L. Howard, Charles J. Woodin, Mikel L. Stout, Ronald K. Badger, Benjamin C. Langel, Phillip S. Frick, Jerry G. Elliott, and John E. Foulston, Wichita, were with him on the brief for appellees, Conway Springs Bottling Co. and Pepsi-Cola Bottling Co. of Wichita.

O'CONNOR, Justice.

This products liability action was instituted by the plaintiff, Felix A. Evangelist, to recover damages for personal injuries sustained when a partially filled Pepsi-Cola bottle broke as he was recapping it with a device known as a 'Handy Dandy.' Motions for a directed verdict on behalf of all the defendants were sustained at the close of plaintiff's evidence, and he has appealed.

The defendants are Bellern Research Corporation, the manufacturer of the 'Handy Dandy'; Brockway Glass Co., the manufacturer of the bottle; Conway Springs Bottling Co. and Pepsi Cola Bottling Company of Wichita, the bottler and distributor of the bottled beverage. For conveience, the defendants will be referred to herein as Bellern, Brockway, Conway, and Pepsi-Bottling, respectively.

The question for determination is whether or not plaintiff made out a case against each of the defendants for breach of an implied warranty.

The accident occurred in the early morning hours of April 21, 1962, when Evangelist, a surgeon in the Air Force, upon returning to his residence following a late night hospital call, uncapped a twelve-ounce, disposable bottle of Pepsi-Cola with the 'Handy Dandy,' poured about half of the contents into a glass, and proceeded to recap the bottle. Gripping the bottle with his left hand, Evangelist took the 'Handy Dandy,' with the bottle cap in it, and placed it on the top of the bottle. He pushed until the cap partially grasped the top of the bottle, then released a 'red button' so that the 'Handy Dandy' could be removed from the cap. Then, reversing the instrument in his right hand, and holding the bottle in the same way, he put the other end of the instrument down over the top of the bottle and, with his thumb on the top, pressed straight down. The bottle broke, and a long fragment of glass on the opposite side of the bottle entered the webbed space between the thumb and index finger of his left hand.

In describing the recapping process, Evangelist said he used the same procedure he had customarily followed on other occasions. He applied no more pressure than usual. He did not use a prying or levering-type action, and attempted to get the 'Handy Dandy' on straight. He had no intention of refilling the bottle, but was recapping it to retain the 'fizz' in the contents remaining.

The bottle was from a six-pack carton purchased by plaintiff's wife at the McConnell Air Force Base commissary. The 'Handy Dandy' had been given to the plaintiff as a Christmas present in 1958. He received it in a plain box, gift wrapped, and could not recall that any instructions or directions came with it. Since that time plaintiff and his wife had used the device on numerous occasions to open and recap soft-drink bottles.

At oral argument plaintiff challenged the manner in which his theory of recovery was stated in the pretrial order. A brief review of the pleadings and order will focus the issue.

In his amended petition plaintiff alleged that Brockway, Conway and Pepsi Bottling, in manufacturing, handling, distributing and selling the bottle, impliedly warranted it was suitable for use as a container for Pepsi-Cola, safe for public use, and sold in such a manner as not to be inherently or imminently dangerous when being recapped by a purchaser from the public; that as a result of the breach of said warranty, the bottle broke and he was injured. In a second count plaintiff sought recovery on the theory of negligence under the doctrine of res ipsa liquitur. Prior to the final pretrial conference, however, plaintiff's attorney notified the court and all defense counsel by letter he intended to rely solely on implied warranty against all defendants, including Bellern. The pretrial conference order stated that 'Plaintiff elected to proceed against all defendants on the theory of implied warranty only in that the bottle was defectively manufactured and that the recapping device was likewise defectively manufactured and designed.' (Emphasis added.)

Plaintiff now claims this court should review the propriety of the trial court's ruling upon plaintiff's theory as stated in his amended petition-that Brockway, Conway and Pepsi Bottling were liable for breach of implied warranty 'in the manufacturing, handling, distributing and selling' of the bottle of Pepsi-Cola-rather than the restrictive language of the pretrial order-'the bottle was defectively manufactured.' We cannot agree.

The purpose and effect of a pretrial order is clearly defined by the statutory and decisional law of this state. As stated in Brown v. Hardin, 197 Kan. 517, 419 P.2d 912:

'The pretrial conference provided for by K.S.A. 60-216 has become an important part of our procedural process designed, among other things, to acquaint each party in advance of trial with the respective factual contentions of the parties upon matters in dispute, thus reducing the opportunity for maneuver and surprise at the trial, and enabling all parties to prepare in advance for trial. * * * Orders entered at pretrial conference have the full force of other orders of court and they control the subsequent course of the action, unless modified at the trial to prevent manifest injustice (K.S.A. 60-216). * * *' (p. 519, 419 P.2d p. 915.)

A review of the record fails to disclose that any attempt was made by the plaintiff to have the pretrial order modified, or that he objected to it in any way during trial. Plaintiff presented his evidence, defendants cross-examined his witnesses, and the trial court ruled on the respective motions for directed verdict with the idea that plaintiff's theory of recovery was as stated in the pretrial order.

On review this court will affirm or reverse in accordance with the presence or lack of error shown by the record upon the theory adopted by the parties at trial. A litigant may not for the first time on appeal change the theory of his case from that on which it was presented to the trial court, nor may he present matters or issues which he did not bring to the attention of that court. (In re Bowlus, 197 Kan. 351, 416 P.2d 711; Green v. Kensinger, 193 Kan. 33, 392 P.2d 122; Potwin State Bank v. Ward, 183 Kan. 475, 327 P.2d 1091, 80 A.L.R.2d 166.) It follows that plaintiff is bound by the theory of recovery stated in the pretrial order, as more fully explained hereafter, and we will review the record in that light.

We first turn our attention to plaintiff's case against defendants Brockway, Conway and Pepsi Bottling for the allegedly defective bottle.

Plaintiff's theory of recovery against the defendants, as defined by the pretrial order, was that Brockway...