Haynes v. Coca Cola Bottling Co. of Chicago

• Decision Date: 20 May 1976
• Docket Number: No. 60940,60940
• Citation: 350 N.E.2d 20,39 Ill.App.3d 39
• Parties: Johnnie L. HAYNES, Plaintiff-Appellee, v. COCA COLA BOTTLING COMPANY OF CHICAGO, an Illinois Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 20

350 N.E.2d 20

39 Ill.App.3d 39

Johnnie L. HAYNES, Plaintiff-Appellee, v. COCA COLA BOTTLING COMPANY OF CHICAGO, an Illinois Corporation, Defendant-Appellant.

No. 60940.

Appellate Court of Illinois, First District, Third Division.

May 20, 1976.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller; D. Kendall Griffith, Paul A. Reichs, Stanley J. Davidson, Chicago, for defendant-appellant.

Brundage & Garr, Chicago, for plaintiff-appellee.

DEMPSEY, Justice.

The plaintiff, Johnnie Haynes, filed a two-count complaint against the Coca Cola Bottling Company of Chicago, charging the defendant with negligence and breach of warranty. She contended that she became ill after drinking a can of Coca Cola which contained a foreign substance. The jury returned a verdict for the plaintiff and awarded her $1,000 in damages. The trial court entered judgment on the verdict and refused to grant the defendant's motions for judgment notwithstanding the verdict and for a new trial.

The plaintiff testified that in February 1970 she was employed by the Alcon Metal Products Company, Chicago, on an eight-hour shift from 11:30 p.m. to 7:30 a.m.; that during her 1:00 a.m. coffee break on February 19th, she purchased a can of Coca Cola from a factory soft drink dispensing machine; that the flip-top can looked like an ordinary can and did not appear to be damaged. Witnesses, who were present when Haynes drank the Coca Cola, testified that the can was not leaking nor damaged in any way.

Mrs. Haynes opened the can and heard a fizzing sound. She drank the contents even though the taste was somewhat unappealing. When she reached the bottom of the can she realized that some solid matter was in her mouth. She spit the foreign material back into the can and one of her co-workers poured the contents of the can into a small bowl. She described the substance as being 'jelled . . . kind of dark brown and gray . . . it was slimy.'

After this, Mrs. Haynes began vomiting. The continuous vomiting prevented her from returning to work, so her supervisor took her to a hospital. She vomited on the way to the hospital and after she arrived there. She informed the doctor who was on duty in the emergency room that she became sick after drinking some pop. The doctor examined her and the can which was given to him by her supervisor. He gave her medication to stop her vomiting and told her she could return to work.

When she arrived at her place of employment she was informed by people who were waiting outside that she was to go back to the hospital. She returned to the hospital and stayed there for five days. She stated that after her discharge she did not feel well for two or three weeks but, at the time of the trial, she felt no ill effects from her experience.

Dr. George Pope, a physician engaged in the general practice of medicine, testified that he was called to attend the plaintiff because he did workmen's compensation work for Alcon Metal Products. He examined her at the hospital on February 19th and examined the can which she had purchased. He poured the contents remaining in the can into a glass container and observed a gelatinous, gooey, slimy substance. Laboratory tests, which he did not conduct, showed no bacteria, but the presence of paper and a fungus called aspergillus niger.

Dr. Pope diagnosed Mrs. Haynes' condition as acute gastritis caused by the contamination of the Coca Cola. From his observations and the results of the laboratory tests, he concluded that her nausea resulted from the contaminated matter. It was his impression that her acute symptoms were caused by a psychological reaction from imbibing a mouthful of unwholesome material in what was supposed to be a clear fluid. The doctor stated that his medical opinion was corroborated by the fact that the fungus asperguillus niger does not usually cause a condition of epigastric distress.

The defendant's plant manager, whose duty it was to supervise the canning operations, described the procedures for processing Coca Cola. He said that the water, syrup and carbonated air, which are mixed together to make the final product, are routed through stainless steel pipes to the mixing point, and that after the liquid becomes carbonated it flows through a similar stainless steel system to the machine which fills the cans. The cans, which the defendant purchases from an independent company, are assembled in an adjacent building, placed single file on a conveyor belt with their open ends facing upward and sent to the filling machine. On the way they are rinsed with chlorinated water under 80 pounds of pressure and drained. The distance from the rinser to the filler is approximately four feet. No employee watches the cans during the four-tenths of a second it takes them to go from the rinser to the filler. The cans are filled by being placed against a nozzle that has 16 openings.

When the cans leave the filler they travel for one-tenth of a second on an exposed conveyor for three feet to a machine that seals them. An employee watches their journey between the filler and the sealer. Approximately 1200 cans per minute travel past him and his primary purpose is not to see if contamination got into the cans, but to see if they are properly filled, whether there is any leakage and whether there is any jamming of the production line. If the conveyor belt is stopped for any reason, the cans between the filler and the sealer are removed from the conveyor.

Once the cans have been sealed they are sent to a warmer which raises the temperature in the head space (the area between the liquid and the top of the can). This creates greater pressure within the cans because the liquid in them expands as it is heated. In theory any defect in the sealing operation would cause the cans to leak.

After the warmer, the cans travel to a 'fill-defects' device. This checks the liquid level in the cans; if the proper fill is indicated it will let the cans pass; if the proper level is not signaled, it rejects them. This test ascertains proper level only; it does not determine what is in the can. For example, it will pass a can that is completely filled with gelatine.

The company also conducts qualify control examination. The contents of the final product are checked for the correct blend of syrup and water and the carbonation is evaluated to see if it is at the proper level. Every 30 seconds microbiological analysis is made of five cans. However, none of these tests attempts to detect contamination nor do they check for foreign ingredients in the cans.

The cans are then placed in cases or cartons and kept in a warehouse. Employees of the defendant testified that the cans which they delivered to the Alcon company were packaged in cardboard cases and stacked in a shed which was close to the boiler room. The defendant's employees did not fill the dispensing machines at the Alcon factory.

The plant manager further testified that a container, which has an air leak, will lose all its carbonation because it is under internal pressure. Once the pressure is removed, air can seep back into the container and spoil the product. When Coca Cola, which consists of sugar and water, is mixed with air that contains yeast mold, it provides an ideal growth medium, which allows the yeast to ferment and causes the mold spores to grow and multiply. In the manager's opinion leakage would be most likely to occur in the side seam of the can or around the easy opening feature on the top, and it would be possible to have an air leak not be visible to the naked eye, at either of these places. He testified that aspergillus niger is a mold spore commonly found in the air; that the spore requires the presence of air, moisture and proper temperature to grow and multiply, and that it was possible for this to occur in a can of Coca Cola if air intruded into the can.

The defendant concedes that it owed a duty to the plaintiff and that her evidence was sufficient to prove that the proximate cause of her injury was the presence of the foreign substance in her month which came from the can. It contends, however, that the verdict was against the manifest weight of the evidence and that the trial court improperly denied its motion for judgment notwithstanding the verdict because she failed to introduce evidence of the defendant's negligence or to prove that its product was not fit for hjman consumption when it left the defendant's control. It argues that the jury could only speculate about how air got into the can and where and when it took place; that this could not have occurred at its plant prior to sealing because its evidence established that its precautionary practices and packaging devices detected any can not completely filled with liquid; that it could not have occurred after sealing because its can-warming process rejected leaking cans. The defendant concludes that the can must have been damaged after it left its control; that this only could have happened at the Alcon plant when the cardboard container was torn open to load the dispensing machine and that at this time it was possible the tab on the top of the can could have been dislodged or the seam on the side of the can separated.

This argument overlooks the evidence that the foreign substance in the can was a mixture of fungus and paper. The air bearing the aspergillus niger spores could have entered the can after it was sealed, but the paper could not have. The argument ignores the...