Fisher v. Washington Coca-Cola Bottling Works

• Decision Date: 11 May 1936
• Docket Number: No. 6598.,6598.
• Citation: 84 F.2d 261,66 App. DC 7
• Parties: FISHER v. WASHINGTON COCA-COLA BOTTLING WORKS, Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

66 App. DC 7, 84 F.2d 261 (1936)

FISHER v. WASHINGTON COCA-COLA BOTTLING WORKS, Inc.

No. 6598.

United States Court of Appeals for the District of Columbia.

Decided May 11, 1936.

Mark P. Friedlander and Robert I. Silverman, both of Washington, D. C., for plaintiff in error.

Cornelius H. Doherty, of Washington, D. C., for defendant in error.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

STEPHENS, Associate Justice.

This case arises upon a writ of error to the Municipal Court of the District of Columbia. The action was in tort for negligent injury caused, as alleged, by noxious material in a Coca-Cola bottle. There was a jury, and at the close of the case for the plaintiff (plaintiff in error here), there was a directed verdict for the defendant (defendant in error here). The only error assigned is the action of the trial judge in granting the motion of the defendant for a directed verdict, the plaintiff asserting that there was sufficient evidence to go to the jury, the defendant claiming the contrary.

The case made for the plaintiff was, in substance and effect, as follows: On May 22, 1935, at about noon, the plaintiff went into a delicatessen store in the District of Columbia and there purchased a bottle of Coca-Cola. This was opened for him by the proprietor who handed it to the plaintiff. The plaintiff commenced drinking, and after taking the first drink, discovered that the liquid had a peculiar taste. He became nauseated, weak and commenced to sweat. He had had something to eat about 7 a. m., and between then and the time he drank the Coca-Cola had "nothing to drink except perhaps Coca-Cola." He consulted a doctor at once and was at home sick and away from work for four days. The bottle contained "something round like that thumb (indicating) * * * it had a real bad taste and a kind of mouldy-looking something in it * * * the substance was hanging in the bottle and did not become loosened when the bottle was shaken * * * it was white and brown, looked like a flame, was sticky, spongy and soft, but did not give way from the bottle * * * it looked like it was corroded and a little white, and was hanging on the side of the bottle * * *." The proprietor of the delicatessen store purchased his Coca-Cola from the defendant Washington Coca-Cola Bottling Works, a box or so daily. There were probably a few bottles left over from one case when the Coca-Cola representative came around with another one; "it is not probable but possible that those bottles get mixed up and one may be there for some time, but most generally he the proprietor sells out his supply." The particular bottle served the plaintiff was kept in the icebox in a sanitary place with other soft drinks. When the proprietor opened the bottle and handed it to the plaintiff, nothing was put in it. The defendant at the time in question was engaged in the business of bottling, manufacturing and selling a beverage known as Coca-Cola.

The plaintiff's (amended) bill of particulars charged no specific act of negligence, alleging merely, after stating facts similar to those proved in the plaintiff's case, "that due to the negligence of the defendant the aforesaid substance was present in the bottle of Coca-Cola as aforesaid; and that the facts and circumstances concerning the manufactured, bottling and distribution of the said bottle of Coca Cola are exclusively within the knowledge and control of the defendant * * *."

We think it clear that this case should have been submitted to the jury. In Chevy Chase Dairy v. Mullineaux, 63 App.D.C. 259, 71 F.(2d) 982, 984, we held that evidence to the effect that milk purchased from a dairy in an original bottle was found to contain particles of broken glass with resultant injury to the plaintiff's children when they drank the milk, was properly submitted to the consideration of the jury for the determination of the asserted negligence of the defendant. That case is controlling unless, as asserted by the defendant, it is distinguishable from the instant case, first, because the Chevy Chase Dairy Case involved a substance (broken glass) "harmful * * * to the human body" whereas the instant case does not; second, because in the Chevy Chase Dairy Case the milk was received directly from the dairy whereas in the instant case the Coca-Cola was not received directly from the defendant manufacturing company but indirectly, that is, through the proprietor of the delicatessen store. We think the case is not distinguishable in either of such respects. As to the first, the jury might properly have found in the instant case that the substance in the bottle was what made the plaintiff ill and therefore that it was harmful to the human body. As to the second, the jury might properly have concluded from the plaintiff's case that the contents of the bottle were undisturbed until it reached the plaintiff's hands. Under the testimony, the defendant, for all practical purposes, was in exclusive control of the bottle and its contents until it was opened. A similar distinction was attempted to be taken in Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866 (which we cited in Chevy Chase Dairy v. Mullineaux, supra). There the plaintiff bought from a confectioner a bottle of "Whistle" which had been put up by the defendant. The confectioner, as in the instant case, opened it in the plaintiff's presence. As in the Chevy Chase Dairy Case, it contained glass which injured the plaintiff. The court held that the presence of broken glass in the bottle at the time it was sold by the Bottling Company was evidence of negligence. In terms, the court said:

"The presence of a noxious substance in the article sold is in itself evidence of negligence on the part of the manufacturer when it is shown that the article contained such substance when it was sold by him." 140 Md. 488, at page 498, 117 A. 866, 870.

It was urged by the Bottling Company that as the "Whistle" was not in its control at the time the injury was sustained, an inference of negligence was not warranted. Speaking in terms of the doctrine res ipsa loquitur, the court said:

"There is nothing, however, in the reason for the rule or in the principles upon which it is founded to support the contention that its application is limited to cases where the injurious agency is in the control of the defendant at the time of the injury, but it is sufficient if it appears that such agency was in his control at the time of the negligent act which caused the injury." 140 Md. 488, at page 502, 117 A. 866, 871.

In respect of similar facts, the same point of view was taken in Rozumailski v. Philadelphia Coca-Cola B. Co., 296 Pa. 114, 118, 145 A. 700, 701, where the court said, speaking again apparently in the light of the doctrine res ipsa loquitur:

"The manufacturer was for all purposes in exclusive control of the bottle and its contents, as its contents were undisturbed until it reached the consumer's hands."

Other cases of interest, involving similar facts, are: Norfolk Coca-Cola Bottling Works v. Krausse, 162 Va. 107, 173 S.E. 497, which reviews many of the authorities, and Campbell Soup Co. v. Davis, 163 Va. 89, 175 S.E. 743. It is pointed out by the Virginia court in the Norfolk Coca-Cola Case that there is a division of view upon the question whether the doctrine res ipsa loquitur should be applied. The Virginia court does not apply it, but nevertheless holds that such facts as are here under discussion constitute a prima facie case of negligence. The Maryland court, as above pointed out, spoke in terms of res ipsa loquitur in respect of the matter of control of the injurious agency. On the whole of the case it said that the doctrine was not necessarily involved, but indicated that there was nothing to prevent its application. While in Chevy Chase Dairy v. Mullineaux, supra, we did not rest our decision in express terms upon the doctrine res ipsa loquitur, we did cite Goldman & Freiman Bottling Co. v. Sindell, stating that it is not inapplicable.

It seems to us that the doctrine res ipsa loquitur is applicable to such a situation as is involved in the instant case, and rightly requires the submission of such a case to the jury. That rule, hardly to be better stated than in the literality of its own words, has been explained by this court in Moore v. Clagett, 48 App.D.C. 410, 415, as one which:

"arises in a case where the accident is such that, in the ordinary course of events, it would not have happened except through the negligence of the defendant, and where the facts relating to the accident are peculiarly within his knowledge. In such a case, from the mere happening of the accident, a presumption of negligence arises, which, if not satisfactorily explained by the defendant, authorizes a recovery."

This case is based on Sweeney v. Erving, 228 U.S. 233, at pages 238, 239, 33 S.Ct. 416, 417, 57 L.Ed. 815, Ann.Cas.1914D, 905, where the Supreme Court, speaking through Mr. Justice Pitney, said:

"The general rule in actions of negligence is that the mere proof of an `accident' (using the word in the loose and popular sense) does not raise any presumption of negligence; but in the application of this rule, it is recognized that there is a class of cases where the circumstances of the occurrence that has caused the injury are of a character to give ground for a reasonable inference...