Ferrell v. Sikeston Coca-Cola Bottling Co.

Decision Date26 January 1959
Docket NumberCOCA-COLA,No. 7720,7720
Citation320 S.W.2d 292
PartiesMarjorie FERRELL, Plaintiff-Respondent, v. SIKESTONBOTTLING CO., Inc., Defendant-Appellant.
CourtMissouri Court of Appeals

Blanton & Blanton, Sikeston, for defendant-appellant.

Joslyn & Joslyn, T. B. Russell, Charleston, for plaintiff-respondent.

STONE, Presiding Judge.

Defendant appeals from the judgment for $1,000 entered upon the jury verdict for plaintiff, then nineteen years of age, the proprietress of a beauty shop in Charleston, Missouri, for injuries sustained on September 1, 1956, when a bottle of coca-cola exploded in her left hand, as she was placing the bottle in an upright refrigerated cooler in her beauty shop.

Plaintiff's business was conducted in a large room, fronting toward the north and divided by an east-and-west partition (not extending to the ceiling) into the beauty shop area in the front, about forty feet by fifty feet in size, and a small 'supply room' in the rear. The only entrance to the supply room was through a door in the partition about three feet from the west end thereof. An insulated thirty-gallon hot water heater, the sole function of which was to provide hot water for the operators in the beauty shop, stood upright 'back on the east' in the supply room, and cases of coca-cola, from which the cooler in the beauty shop was replenished from time to time, were stacked against the west wall in the supply room. Plaintiff did not remember whether the air-conditioner was operating on the day she was injured, which, as she said, 'was just an ordinary September day.' In response to an inquiry whether there had been 'any unusual or extreme either hot or cold temperatures in there other than normal weather,' plaintiff answered, without objection, 'no, sir.'

Plaintiff rented the refrigerated cooler from defendant for 'ten cents a case,' and defendant's deliveryman called at plaintiff's place of business at intervals of about two weeks. On each occasion, he 'checked to see if I (plaintiff) needed any cokes, * * * picked up the empty bottles and brought in what I needed, and if I needed any in the machine (cooler) he would put a case in and he would put the extra cokes in the supply room.' His last delivery to plaintiff's shop prior to the accident under discussion had been on August 17, 1956, when the customary procedure had been followed and two cases of coca-cola had been sold and stacked in the supply room. Plaintiff kept the key to the cooler; and, on the day of her accident, the top of the cooler was raised. As plaintiff described it, she had gotten two bottles of coca-cola from a case in the supply room, had carried those bottles to the cooler in her left hand (in a manner demonstrated to the jury), and was in the process of placing the first bottle in the cooler when it exploded in her hand. In plaintiff's language, 'I started setting this one down and about halfway or three-fourths of the way down, it exploded.'

Defendant stood on its motion for a directed verdict at the close of plaintiff's evidence, and the decisive issue on this appeal is whether plaintiff made a submissible case. The parties agree that, since the landmark decision in Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, an exploding bottle case of this character is not regarded, in Missouri, as 'a true res ipsa loquitur case' [359 Mo. loc. cit. 456, 222 S.W.2d loc. cit. 92], i. e., as a case in which negligence may be inferred 'without any evidential facts except the unusual occurrence itself.' Harke v. Haase, 335 Mo. 1104, 1110, 75 S.W.2d 1001, 1004; Palmer v. Brooks, 350 Mo. 1055, 1061, 169 S.W.2d 906, 909; Hendricks v. Weaver, Mo., 183 S.W.2d 74, 76; Bobbitt v. Salamander, 240 Mo.App. 902, 908, 221 S.W.2d 971, 974; Powers v. Seibert, Mo.App., 297 S.W.2d 627, 630. But, the fact that a case may not be brought within the res ipsa doctrine does not preclude a plaintiff from making a submissible case of general negligence by circumstantial evidence [Maybach case, supra; 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]; and, it is on the latter basis that instant plaintiff pleaded, tried and here presents her case.

As to the evidence required to permit and sustain a judgment for plaintiff in a general negligence case of this character, our Supreme Court pointed out in the Maybach case, supra, 359 Mo. loc. cit. 456, 222 S.W.2d loc. cit. 92, that plaintiff 'cannot rely upon the mere proof of the occurrence to raise an inference of negligence on the part of (defendant), but must offer evidence to negative the possibility that the injury may have been due to some cause intervening after (defendant) had parted with control.' To the same effect, see the Kees case, supra, 225 S.W.2d loc. cit. 172(4), and the Stephens case, supra, 232 S.W.2d loc. cit. 185-186. The opinion in the Maybach case noted, 359 Mo. loc. cit. 454, 222 S.W.2d loc. cit. 91, that plaintiff 'offered evidence tending to prove that the explosion of the bottles was not due to negligent handling or exposure to unusual temperature changes after the bottles left the possession and control of (defendant),' and again that plaintiff 'offered evidence tending to show due care in the manner in which the bottles were kept and handled after they left the control of (defendant),' and the court concluded, 359 Mo. loc. cit. 456, 222 S.W.2d loc. cit. 92, 'that a submissible case has been made, depending partially, on circumstantial evidence.' True, plaintiff Maybach 'further offered to prove the explosion of other bottles from the same shipment which had been handled and kept in the same way' [359 Mo. loc. cit. 454, 222 S.W.2d loc. cit. 91]; but, although the court thought that 'such evidence would be extremely important in this kind of a case' and that exclusion thereof constituted prejudicial error, we do not understand that the Maybach case (or any Missouri case) has made proof of the explosion of other bottles filled by the same defendant under substantially similar circumstances and at reasonably proximate times an essential element of, and an indispensable prerequisite to, submission of an exploding bottle case on general negligence in this jurisdiction. 1

In the instant action, defendant apparently recognizes that, on the authority of the Maybach case, supra, plaintiff made a submissible case if her proof as to the explosion itself was coupled with the supplemented by substantial evidence tending to show that, after the bottle (which subsequently exploded) had passed from defendant's possession and control, it had not been damaged or handled negligently and had not been subjected to unusual temperature change; but, the tenor of defendant's principal complaint is that there was no substantial evidence to negate negligent handling. We observe preliminarily that, in making an affirmative showing that the exploding bottle had not been handled negligently, it was particularly important for plaintiff to prove that she herself had handled the bottle carefully [cf. Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 P.2d 436, 439; Johnson v. Coca Cola Bottling Co. of Willmar, 235 Minn. 471, 51 N.W.2d 573, 578], for cases of this character dramatically demonstrate and appropriately recognize the ready possibility that a bottle explosion may have been caused by mishandling at or immediately prior to the explosion. E. g., Palmer v. Hygrade Water & Soda Co., 236 Mo.App. 247, 151 S.W.2d 548; Burkett v. Panama City Coca-Cola Bottling Co., Fla., 93 So.2d 580; Henning v. Thompson, Fla., 45 So.2d 755; Cole v. Pepsi-Cola Bottling Co., 65 Ga.App. 204, 15 S.E.2d 543, 548. But, absent any complaint by instant defendant concerning the sufficiency of plaintiff's proof on this important facet of her case, we pass to the gravamen of defendant's charge, i. e., that there was no credible evidence that the bottle had not been damaged or mishandled by one of plaintiff's three employees during the period from its delivery to the beauty shop (probably on August 17, 1956) to the time of explosion.

Plaintiff employed in her beauty shop two operators (unidentified by name) and a colored maid. The maid was the only person in the shop (other than plaintiff) at the time of explosion and was the only employee who testified upon trial. She confirmed plaintiff's account of the explosion but was not asked whether she had handled either the bottle which exploded or any of the bottles stored in the supply room. However, in the course of plaintiff's direct examination, she was asked 'these cases of coca-cola (stacked in the supply room), were they disturbed at any time?' and was permitted to answer, without objection to the question and without motion to strike the answer, 'no, sir, they were brought in by the coke man and not bothered'; but, on appeal, defendant earnestly insists that the quoted question and answer did not constitute credible testimony that the bottle had not been handled or disturbed because it 'obviously called for an produced a conclusion, guess, surmise and speculation.'

We recognize that not every human assertion should be accepted as the basis of an inference that the thing asserted is true [Barnhart v. Ripka, Mo.App., 297 S.W.2d 787, 791; Wigmore on Evidence (3rd Ed.), Vol. II, Sec. 475, loc. cit. 516], for no witness should be heard with respect no that concerning which he (or she) does not possess the fundamental and basis testimonial qualification of knowledge. Wigmore, Sec. 478, p. 518; Ibid., Sec. 656, p. 762; Davis v. Gatewood, Mo., 299 S.W.2d 504, 510; Christian v. Jeter, Mo., 287 S.W.2d 768, 770(2); Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600, 606(4); Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311, 321(9). But, this is not a case in which plaintiff's statement on direct examination (that the cases of coca-cola had not been disturbed after delivery to her...

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