Florence Coca Cola Bottling Co. v. Sullivan
| Decision Date | 26 March 1953 |
| Docket Number | 8 Div. 638 |
| Citation | 65 So.2d 169,259 Ala. 56 |
| Parties | FLORENCE COCA COLA BOTTLING CO. v. SULLIVAN. |
| Court | Alabama Supreme Court |
Bradshaw, Barnett & Haltom, Florence, for appellant.
Mitchell & Poellnitz, Florence, for appellee.
This is a suit by Daisy Kirby Sullivan (appellee) against Florence Coca Cola Bottling Company (appellant) for injuries allegedly suffered by her on September 3, 1949, by glass from an explosion of an unopened bottle or bottles of Cola Cola which she was carrying in her hand in a six bottle paste board coca cola carton. The alleged explosion took place as she walked home from the grocery store known as Watson's Grocery Store, where the coca colas in question had been purchased by her. There was verdict and judgment in the amount of $3,000, for her as plaintiff in the suit and from this judgment this appeal has been taken. It is not practicable to set out the testimony in all its detail, but we will summarize the evidence sufficiently for an understanding of the case.
Mrs. Daisy Kirby Sullivan testified substantially as follows. On September 3, 1949, she was 49 years of age and worked for J. T. Flagg Knitting Company as a hemmer. She had worked for this company in this capacity for 23 years. At about six o'clock on the evening of September 3, 1949, she went to Watson's Grocery Store in Florence, Alabama, which is a neighborhood grocery store located about five blocks from her home to buy some groceries. At the store she purchased a carton of six coca colas and two loaves of bread and then began to walk home. Mrs. Alma Darby, a clerk in the store, waited on her and at her request picked up a paste board carton with metal handle marked with the name Coca Cola containing six bottles of uniced coca cola from the floor of the grocery store and delivered them to her by placing them on the counter in front of her. In so delivering the carton of coca colas to Mrs. Sullivan, the carton did not strike any object. In fact the clerk did nothing except place the carton on the counter as aforesaid.
Mrs. Sullivan thereupon picked up the carton of coca colas by the metal handle with her left hand and left the store en route to her home. In her right hand she had two loaves of bread in a sack. According to her while walking in a moderate manner she carried the carton of coca colas in the same manner in which they had been picked up, that is by holding the metal handle in her left hand with her arm extended in a normal manner. There was nothing unusual about the appearance of the carton and the carton was not struck against anything. She testified that she handled the six bottle carton of coca colas very carefully and that nothing happened with reference to the same until she had almost reached her home. As she was walking along and when she was about three-quarters of a block from her home, she heard a loud noise that sounded like an explosion and momentarily she felt a sting and pain in her left leg. She looked down and saw that her leg was bleeding and that the carton had partially disintegrated and that the bottles were on the concrete sidewalk with at least four of them broken. She screamed and a Mr. Lambert and a Mr. Fielder came to her assistance. She laid down and Mr. Lambert tied her scarf around her leg above the injury. She received a cut on her left leg just above the heel on the tendon which is called the 'Achilles Tendon' from a part or parts of a broken bottle or bottles.
Mrs. Sullivan was immediately driven to the hospital in an ambulance and was treated by Dr. Wyatt Simpson, who sewed up the cut on her leg. She stayed in the hospital for five days and after she returned to her home, she was required to stay in bed for a week. She was forced to use crutches for about six weeks and because of her inability to use her foot and leg she was unable to work for a period of about seven weeks following the accident. According to her she suffered pain from the injury, her leg swells and she continues to suffer pain as a result of the injury, and she had particular difficulty and discomfort in the use of her foot and her leg when she tries to walk down steps. According to her she still has swelling in her leg and continues to suffer pain, particularly at night. She showed to the court and the jury a scar on the back of her left leg above her heel about 2 1/2 to 3 inches.
In the operation of the hemming machine Mrs. Sullivan has to use both feet and both legs and as a result of the injury she cannot use her left foot and leg as efficiently as she could prior to the accident. She knows no other kind of work and has been performing the same job for about 23 years. She works on a piece rate basis or in other words she is paid by the number of garments hemmed. While prior to her injury she was able to complete some 30 to 32 bundles per day of completed garments, as a result of her injury she can only complete about 26 or 27 bundles per day. In addition to the foregoing Mrs. Sullivan incurred a hospital bill, doctor's bill and other medical expenses.
Mrs. Alma Darby was a clerk in the Watson's Grocery Store at the time of the alleged accident and made the sale of the carton containing six coca colas to Mrs. Sullivan. Her testimony shows that she picked the carton of coca colas off the floor, the coca colas already being in the carton on the floor near the ice box and when she thus picked the carton up, she gave the same to Mrs. Sullivan. According to her so far as she was aware the bottles were in the same condition when they were delivered to the plaintiff as when they were delivered to Watson's Grocery Store. None of the six bottles of coca cola had been under refrigeration. The temperature in the store was not overheated but comfortable and the bottles had not been handled in any way. According to her further, the bottles were dry, the floor was not damp and the floor had no cracks in it. She noticed no defect or unusual condition of the bottles of coca cola at the time she sold them to the plaintiff and she stated that the coca colas were in the carton just like they were delivered to the store when she handled them and handed them to the plaintiff. She further testified that the coca colas which were sold to Mrs. Sullivan had not been moved while in the store and that no one in the store had in any way handled the carton of coca colas prior to the time it was sold to Mrs. Sullivan.
L. E. Watson, proprietor of Watson's Grocery Store, testified that he sold coca colas in his grocery store and all the coca colas were purchased from the defendant, including those sold to Mrs. Sullivan. While he could not say positively that the coca colas sold to Mrs. Sullivan had been delivered to the store on the day of sale he did testify that the coca colas were either delivered on the day sold plaintiff or within two or three days of that time. Deliveries of the coca colas by the defendant to Watson's Store were made in a truck, the coca colas were taken out of the truck and carried into the store by defendant's employee and by such employee stacked or placed in the store. He testified that no one in any way moved or mistreated the coca colas and the only times they were touched were when they were sold or when some were taken out of crates. While he could not state the exact degree of temperature inside his store on September 3, 1949, he did say it was a little cooler inside his store than it was on the outside. The heater in the store was not in operation or burning at the time and when stating that it was a little cooler in the store, he said, 'Well, the sun was not shining inside and we have fans which would drop the temperature a few degrees.'
There was no air conditioning system in the store and while he could not remember whether September 3, 1949 was a damp day or not, he testified that if it was a damp day his store would not be any more damp than any other normal store. No water had been poured on the floor of his store and no bottles of coca cola which had been in the cooler had been removed and put back in cartons.
According to the testimony of J. R. Lambert, he was across the street at the time the accident happened walking in the opposite direction. When he saw Mrs. Sullivan and spoke to her, he noticed that she was carrying the carton of coca colas in question in her left hand with her arm extended at normal length. After speaking to her he turned his head and then heard an explosion. Upon hearing the explosion he looked toward Mrs. Sullivan again and saw bottles falling from the carton to the sidewalk and heard other explosions. He immediately went to her and saw that she had a hole in her leg or was bleeding. He told her to sit down and then called for an ambulance. According to him Mrs. Sullivan was carrying the carton in a normal manner and the explosion sounded like a gun.
According to the testimony of Roy Fielder he was walking down the street on the day when Mrs. Sullivan was injured and saw her walking on the opposite side of the street, carrying the carton of coca colas. He heard a noise which sounded like a gun and saw the coca colas falling out of the carton toward the sidewalk. He immediately went to Mrs. Sullivan and recalled that Mr. Lambert tied a scarf around her leg. She was bleeding when he reached her and an ambulance came to take her to the hospital.
Nolan Phillips testified that he was the route salesman for the defendant, who delivered the coca colas to Watson's Grocery Store for a considerable period of time including September 3, 1949, the date in question. There was a wire rack in the store and he set the cartons on this wire rack. The wire rack held about two cases of coca colas. If the coca colas were sold from behind the ice cooler on September 3, 1949, he did not know who placed them there. He did not put cartons behind the ice cooler while he was making deliveries to the store in question. The...
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