Graham v. Winston Coca-Cola Bottling Co.

• Decision Date: 23 May 1962
• Docket Number: No. 383,COCA-COLA,383
• Citation: 125 S.E.2d 429,257 N.C. 188
• Parties: Wade C. GRAHAM v. WINSTONBOTTLING COMPANY.
• Court: North Carolina Supreme Court

Page 429

125 S.E.2d 429

257 N.C. 188

Wade C. GRAHAM v. WINSTON COCA-COLA BOTTLING COMPANY.

No. 383

Supreme Court of North Carolina.

May 23, 1962

Elledge & Mast, by David P. Mast, Jr., and Clyde C. Randolph, Jr., Winston-Salem, for plaintiff appellant.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Ralph M. Stockton, Jr., and W. F. Maready, Winston-Salem, for defendant appellee.

PARKER, Justice.

Sam Martin, a witness for plaintiff, operates a grocery store in Winston-Salem, and bought bottled Coca-Cola from defendant in January 1959 for retail sale. He had no trouble in January. Plaintiff assigns as error that the court, on motion of defendant, excluded from the jury his testimony to the following effect: He has had bottles of Coca-Cola purchased from defendant to explode every summer until this last summer; he had them to explode in July and August 1958.

Plaintiff further assigns as error the exclusion by the court from the jury, on motion of defendant, of the testimony of Jacqueline Canady to the following effect: In February 1960 she reached with her left hand in the refrigerator in her home in Winston-Salem and removed a bottled Coca-Cola from the regular racks on the inside of its door. She turned and placed it on the cabinet, and it exploded. One side of the bottle seemed to have disintegrated. The cap was still attached. The index finger on her left hand was badly cut by the explosion, and finally was amputated. The exploded bottle was purchased by her either from the A. & P. Store on Stratford Road or Mount Tabor.

Plaintiff also assigns as error the exclusion by the court, on motion of defendant, of the testimony of Jack F. Canady, husband of Jacqueline Canady, to the following effect: When he arrived home after his wife was injured by the explosion of a bottle of Coca-Cola, he examined the broken bottle. He saw on the bottle the words 'Winston-Salem,' or some abbreviation of 'Winston-Salem.' He made a report and claim for his wife's injury to the Claims Adjusting Division of Coca-Cola Bottling Company in Atlanta, Georgia, and a settlement was made for his wife's injury. He also made a report of her injury to defendant.

In cases where damages are sought for injuries caused by the explosion of a bottle of beverage, the law is well settled in this jurisdiction that it is competent for plaintiff to show that other bottles filled by the same bottler under substantially similar conditions and sold by it at about the same time have exploded under 'substantially similar circumstances and reasonable proximity in time,' as authorizing a permissible inference that the bottler has not exercised that degree of care required of him under the circumstances. Dail v. Taylor, 151 N.C. 284, 66 S.E. 135; 28 L.R.A.,N.S., 949; Cashwell v. Fayetteville Pepsi-Cola Bottling Works, 174 N.C. 324, 93 S.E. 901; Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Ashkenazi v. Nehi Bottling Co., 217 N.C. 552, 8 S.E.2d 818; Davis v. Coca-Cola Bottling Co., 228 N.C. 32, 44 S.E.2d 337; Styers v. Winston Coca-Cola Bottling Co., 239 N.C. 504, 80 S.E.2d 253.

Plaintiff's allegations and proof are that the bottle of Coca-Cola here was in a carton with five other bottles of Coca-Cola, which was pulled off the display case by the long coat of Pauline Webb, and fell about eight inches to a cement floor, where it exploded. All of plaintiff's evidence tends to show that the bottle here exploded not by reason of internal pressure alone, but it exploded by reason of internal pressure, when the bottle fell eight inches to the cement floor and received 'a mild impact' 'over an internally damaged spot on the inside of the bottle. ' The excluded testimony of Sam Martin as to the explosions of bottles of Coca-Cola in his store in the summertime does not show the circumstances under which the bottles exploded. There is no evidence that the bottles in his store fell to the floor, or received any blow. In our opinion, and we so hold, the bottles of Coca-Cola purchased by Sam Martin did not explode under 'substantially similar circumstances' as did the bottle in the present case, so as to make evidence of their explosions competent with the rule above stated.

Even if we assume, though we do not concede it (Elledge v. Pepsi Cola Bottling Co., 252 N.C. 337, 113 S.E.2d 435), that the evidence of the Canadys authorizes a permissible inference that the bottle of Coca-Cola that exploded and cut Jacqueline Canady's finger was bottled and distributed by defendant, it did not explode under 'substantially similar circumstances' as did the bottle here, so as to make the evidence of its explosion competent. The court properly excluded the testimony of Jack F. Canady that he made a report of his wife's injury to defendant, and that he made a report and claim for his wife's injury to the Claims Adjusting Division of Coca-Cola Bottling Company in Atlanta, Georgia, and a settlement was made for his wife's injury. Wigmore on Evidence, Third Ed., Vol. 4, p. 32; 31 C.J.S. Evidence § 292. See also Jones on Evidence, Civil and Criminal, Fifth Ed., Vol. 2, sec. 392.

The four assignments of error as to the exclusion of the testimony of Sam Martin, Jacqueline Canady, and Jack F. Canady, are overruled.

The remainder of plaintiff's assignments of error relate to the charge, except the 14th, which is formal.

Plaintiff's assignments of error, numbers 5 through 9, are to the failure of the court to give in form or in substance five prayers for special instructions. The first three prayers for special instructions are:

REQUEST #1: 'The installation by the defendant of modern machinery and appliances, such as is in general and approved use, does not IPSO FACTO exculpate the defendant from liability. The standard of vigilance required of the defendant is due care, i.e., commensurate care under the circumstances. The defendant owed to plaintiff the duty not to put into his hands a bottle charged with gas that was dangerous to handle in the usual and customary method.'

REQUEST #2: 'It is not incumbent upon plaintiff to show what precautions the defendant should take. That duty devolved upon the defendant who would be liable for negligence in putting dangerous goods upon the market without sufficient precautions to make them safe. What is the best protection is a matter which the defendant must ascertain and use.'

REQUEST #3: 'If such defects as internal abrasions occur in used beverage bottles and substantially reduce the ability of the bottles to withstand impact and to withstand normal handling, it becomes the duty of the...