Graham v. Cloar

• Decision Date: 30 May 1947
• Citation: 205 S.W.2d 764,30 Tenn.App. 306
• Parties: GRAHAM et al. v. CLOAR.
• Court: Tennessee Court of Appeals

205 S.W.2d 764

30 Tenn.App. 306

GRAHAM et al. v. CLOAR.

Court of Appeals of Tennessee, Western Section.

May 30, 1947

Rehearing Denied June 27, 1947.

Certiorari Denied by Supreme Court Oct. 3, 1947.

Error from Circuit Court, Obion County; E. A. Morris, Judge.

Action by Margaret Cloar, by next friend, against Hardy M. Graham and others, a partnership doing business as the Union City Coca Cola Bottling Company, for injuries sustained from alleged explosion of two bottles of Coca Cola alleged to have been bottled by defendants. Judgment for plaintiff after denial of defendants' motion for new trial, and defendants bring error.

Reversed and remanded for new trial.

John S. Porter, of Memphis, Heathcock & Elam of Union City, and Burch, Minor & McKay, of Memphis, for plaintiffs in error.

Miles & Miles, of Union City, for defendant in error.

BAPTIST Judge.

The parties will be referred to as in the Circuit Court.

The plaintiff, Margaret Cloar, by next friend, sued the defendants, Union City Coca Cola Bottling Company, a partnership composed of Hardy M. Graham, Cora P. Graham, Zed Hawkins and Daisy P. Hawkins, for damages arising from the alleged explosion of two bottles of coca cola, alleged to have been bottled by the defendants, causing the loss of plaintiff's eye.

The declaration is in two counts.

The first count alleges, in substance, that the plaintiff while employed in the Kroger Grocery Company of Union City Tennessee, in the exercise of due care and in the ordinary course of her duties picked up two bottles of coca cola out of a case in said store and which two bottles of coca cola had been produced and manufactured shortly prior thereto for sale to and use by the public as a harmless and refreshing beverage, and by the defendants sold to the Kroger Grocery Company for resale as such.

That after taking the bottles out of the case both of them exploded and pieces of glass were blown into her right eye and caused her to loose the sight of it.

That the defendants manufactured the contents of the bottles, filled them at their plant in Union City, and at all times had complete control of the bottles until they were sold to the Kroger Grocery Company.

That the bottles were carefully and properly handled by the Kroger Grocery Company and by all persons into whose hands they came after leaving the hands of the defendant.

That the explosion was not caused by the negligence or improper handling of the two bottles on the part of any one into whose hands they came after leaving the possession of the defendants.

That the bottles contained a beverage charged with carbonic acid which exerts an exploding pressure upon the bottles into which it is introduced and confined.

That all the facts and circumstances of and concerning the manufacture and production of the two bottles were exclusively within the knowledge of the defendant and not within the knowledge of the plaintiff.

That the bottles would not have burst if due care had been used by the defendants, and that said bottles were too highly and dangerously charged with said gas so that they could not withstand the pressure thereof.

The second count alleges that the bottles were defective or of inferior material and unable to withstand internal pressure.

The defendant filed pleas of not guilty.

The case was tried by a jury which returned a verdict in favor of the plaintiff for $10,000, and judgment entered thereon.

The defendants' motion for a new trial having been overruled the defendants have appealed to this Court and assigned errors.

The plaintiff, Margaret Cloar, a young married woman 19 years of age, was employed by the Kroger Grocery Company of Union City, Tennessee; her employment being that of a checker and her duties required her to be at the cashier stand in the front of the store. According to her testimony the Kroger Grocery Company bought all of its coca cola from the defendants Coca Cola Bottling Company of Union City. That on August 31, 1945, at about 6 p. m. she intended to remove twelve bottles of coca cola from a case which was on the floor underneath the checking stand and place them in a pasteboard box of carry to her home for her own use; that she had placed two of the bottles in the pasteboard box and had picked up two more, one in each hand and was in the act of placing these in the pasteboard box when the two bottles she had already placed in the box exploded and a piece of glass struck her eye and put it out. That after the explosion she dropped the two bottles she had in her hands and they fell on the floor. That they did not fall in the pasteboard box nor touch any glass.

Moulton Gambill, Manager of the Kroger Store, testified that the coca colas sold at the store were purchased from the defendants Union City Coca Cola Bottling Company; that on the occasion of the injury he had just locked the door; that Mrs. Cloar was getting coca colas to carry home with her when two bottles 'blowed up and put her eye out'; that she picked up two coca colas and set them in a pasteboard box; that she reached down and picked up two more; that he turned around and about the time he got even with the checking stand he heard an explosion about like a shot gun and the plaintiff was hit in the eye.

Over the objection of the defendants the witness, Ernest Posey, was permitted to testify; that he operated a barbecue stand, selling soft drinks and sandwiches; that two or three days after the accident sued on he had a bottle of coca cola which he had purchased from the defendants to explode; that at the time he was putting a warm coca cola in an ice box where there was ice water; that three or four days after the first occurrence another bottle of coca cola blew up, which was in his ice box and iced down.

Also over the objection of the defendant, Eugene White, a butcher employed at the Kroger Store, and permitted to testify that a week or ten days after the Cloar injury he was picking up a bottle of coca cola out of the cooler and as he picked up one, another 'busted' and the top hit the wall on the other side of the cooler.

T. F. Wallace, professor in the Union City High School, testified that carbonated drinks contain carbonic acid gas and creates a pressure on the inside of a bottle and that if the pressure was great enough it would tend to explode or blow up.

The evidence in behalf of the defendants is that all the machinery used in the plant consists of washing machine, spout filler, carbonator and ice machine; that all bottles used in the plant were purchased from two nationally known and reputable glass manufacturers; that the bottles are guaranteed to withstand internal pressure of 400 pounds per square inch and would actually withstand 600 to 1100 pounds per square inch; that the filling machine and the carbonator both have popoff valves set to release the pressure at 100 pounds; that these valves are tested constantly and were tested both before and after the Cloar injury; that the bottles are left open for several seconds after the bottle is filled, during which time, even if there was an excessive amount of gas, it would escape; that the bottles are given a full and complete inspection both before they are filled and after they are filled and the caps placed thereon.

That when empty bottles are returned to the plant and before being placed in the washer they are inspected for defective or cracked bottles; that the bottles go through a washing process for about fifteen minutes and come out on a moving conveyor; that the bottles pass in front of an inspection light and any cracked or broken bottles or bottles which have a chipped neck are removed and broken; that after the bottles are crowned and filled they are placed in a case on a rolling conveyor to the last operation which is the final inspection; the bottles are placed on the stand which is illuminated by two 100 watt lights with a magnifying glass over it and if any cracked or chipped bottles are found they are broken.

Over the objection of the defendants, the Court permitted the witness Sterling Stone to testify that in 1940, while an employee of the defendant, a bottle of coca cola blew up in a case at a ball park; that he stacked about 90 cases and racked them like stove wood; that it was laying there for about 15 minutes before it blew up.

Assignment of error is made on this action of the Court in admitting this testimony. We think the assignment is well made. This occurrence took place about five years before the Cloar injury and at a time when the defendants did not own and operate the plant, therefore, the evidence was not competent for any purpose.

The defendant makes separate assignments of error to the action of the Court in admitting the testimony of the witnesses Moulton Gambill and Eugene White to testify that within a week or ten days after the Cloar accident the bottle of coca cola blew up in the Kroger ice box; also to the action of the Court in admitting the testimony of Ernest Posey that three or four days after the accident a bottle of coca cola exploded in his ice box.

We think the evidence of these witnesses was competent as circumstances tending to show negligence upon the part of the defendant.

In the case of Winfree v. Coca-Cola Bottling Works, 19 Tenn.App. 144, 83 S.W.2d 903, 905, the trial Court excluded evidence that about the time of the accident in question bottles of coca cola purchased by other merchants from the defendant exploded.

The Court of Appeals in an opinion by Judge Crownover held this to be error and said:

'It was error for the court to exclude testimony that bottles of Coca-Cola purchased by other merchants from the defendant at this time had exploded.

"Where the dangerous or safe character of the

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