Holkestad v. Coca-Cola Bottling Co. of Minn., Inc., COCA-COLA

• Citation: 288 Minn. 249,180 N.W.2d 860
• Decision Date: 28 August 1970
• Docket Number: COCA-COLA,No. 41765,41765
• Parties: Willard HOLKESTAD et al., Respondents, v.BOTTLING COMPANY OF MINNESOTA, INC., Appellant, Penny's Supermarket, Inc., Defendant.
• Court: Supreme Court of Minnesota (US)

Page 860

180 N.W.2d 860

288 Minn. 249

Willard HOLKESTAD et al., Respondents, v. COCA-COLA BOTTLING COMPANY OF MINNESOTA, INC., Appellant, Penny's Supermarket, Inc., Defendant.

No. 41765.

Supreme Court of Minnesota.

Aug. 28, 1970.

Rehearing Denied Nov. 19, 1970.

Syllabus by the Court.

Evidence reviewed and held sufficient to justify the submission of defendant bottling company's liability to the jury on the theory of res ipsa loquitur and to sustain the jury's finding of negligence.

Faegre & Benson, Paul McGough, G. Alan Cunningham and Ludwig B. Gartner, Jr., Minneapolis, for appellant.

Robb, Van Eps & Gilmore and Douglas Dale Reid, Jr., Minneapolis, for respondents.

Heard before KNUTSON, C.J., and ROGOSHESKE, SHERAN, PETERSON, and FRANK T. GALLAGHER, JJ.

Consideration and decision based on briefs by entire court en banc.

OPINION

ROGOSHESKE, Justice.

This appeal arises out of plaintiffs' action for personal-injury damage resulting from an exploding 16-ounce bottle of carbonated beverage. The jury awarded $1,500 damages to plaintiff Eileen Holkestad, the injured party, and $500 to plaintiff Willard Holkestad, her husband, against defendant Coca-Cola Bottling Company of Minnesota, Inc. Defendant bottling company appeals from the judgment and the trial court's denial of its post-trial motion for judgment notwithstanding the verdict or a new trial.

The dispositive question presented is whether the circumstantial evidence concerning the nature and character of the accident is sufficient to justify the trial court's submission of the issue of defendant-appellant's liability to the jury under the theory of res ipsa loquitur and to sustain the jury's finding of negligence.

Viewed most favorably to sustain the verdict, the facts and circumstances attending the explosion of the bottle follow. On March 5, 1965, while grocery shopping, plaintiff Eileen Holkestad purchased a six-pack of 16-ounce bottled Bubble Up, a carbonated soft-drink beverage, from defendant Penny's Supermarket, Inc., in Richfield. The six-pack cardboard container was taken by her at arm's level from a self-service beverage display rack and placed in her shopping cart. The bottles purchased were clean, neither dirty nor dusty, and the area of the display rack from which the six-pack was taken was not in disarray. Although the bottles displayed on the 12-foot-wide, 5-foot-high, 18-inch-deep racks were exposed to mishandling by customers, the bottles of the six-pack purchased were neither dropped, bumped, nor struck following the time they were taken from the rack and while they were handled by Mrs. Holkestad, the cashier, and the carry-out boy, who placed the six-pack in the Holkestad automobile on the rear floor immediately behind the driver's seat. Nor was there any evidence of mishandling of the purchased six-pack by the employees of Penny's Supermarket prior to Mrs. Holkestad's taking it from the display rack. It was delivered by defendant Coca-Cola (the manufacturer and distributor) as late as 1 day, or as early as 5 days, before its purchase by Mrs. Holkestad. The procedure followed by defendant Coca-Cola and other beverage distributors in delivering a supply of beverages to the supermarket was as follows: After having the delivery checked by the stockman, the distributor's employee would bring the products into the sales area and place them upon the display rack. Except for handling the bottles and containers to restore order on the display rack and during checkout and carry-out, no employee of the supermarket handled the bottles.

After completing the 4- to 5-mile drive to her home without incident, Mrs. Holkestad parked her car in the garage of her home. Alone and emptyhanded, she opened the back door of the automobile, reached in, and as she began to life the six-pack from the floor of the vehicle, one of the bottles suddenly 'exploded,' resulting in lacerations of the second and third fingers of her left hand. The weather at the time was normal for the season and the bottles were not exposed to any extremes of temperature. Shortly after the accident, plaintiff Willard Holkestad arrived home and found fragments of glass throughout the rear of the automobile--some larger pieces on the floor, some on the rear seat, and a few smaller pieces near the rear window. That evening, the accident was reported to the manager of the supermarket, who referred the Holkestads to defendant Coca-Cola. Subsequently, Mr. Solsvig, an employee of defendant Coca-Cola, came to the Holkestad home and examined the bottle in the presence of plaintiffs. He pointed out to them an observable difference in thickness of the glass, i.e., that '(t)he bottle was fat on one side and thin on the other,' and he referred to a spot on the bottle approximately the size of a quarter, indicating that it was a 'soft spot.' He took the available pieces of the broken bottle and the container for the purpose of having it tested for defects. ¹

These facts and circumstances were submitted by plaintiffs in their case in chief. At that point, the court, without objection by plaintiffs, granted defendant Penny's Supermarket's motion for a directed verdict. Defendant Coca-Cola's motion for a directed verdict against plaintiffs' claim of liability alleged in their complaint 'on the theories of warranty, strict liability, and negligence' was argued at length. Defendant Coca-Cola contended that there was no evidence of breach of warranty and that the evidence failed to establish any defect in the bottle or any negligence 'in its handling or manufacturing of the product.' Abandoning their claim of breach of warranty, plaintiffs contended that the evidence was sufficient to permit the case to go to the jury on the theory of res ipsa loquitur and also sufficient to 'meet the requirements of our law with respect to submission of the case on the theory of strict liability.'

The court granted defendant Coca-Cola's motion for a directed verdict on the theories of breach of warranty and strict liability but denied its motion on the theory of negligence, explaining:

'The Court is of the opinion that there has been no evidence to establish that the bottle was defective; that the bottle in and of itself doesn't establish any defect in it. There has been reference to a 'soft spot,' yet that 'soft spot' was intact, according to the evidence, at the time that Mr. Solsvig pointed it out to the plaintiffs, so it could not be any causation, between the so-called 'soft spot' which was, apparently, the terminology used by Mr. Solsvig, and the explosion of the bottle. Inasmuch as there isn't evidence to establish a defect, this Court is of the opinion that strict liability does not apply. Hence, the motion of the defendant Coca-Cola Bottling Company of Minnesota is granted on that theory.

'However, as to res ipsa loquitur, the motion is denied.'

Defendant Coca-Cola (hereafter defendant) then produced two expert witnesses, who had examined the fragments of the broken bottle for the purposes of testing it for defects and determining the cause of breakage. Daniel M. Mahoney, manager of design, development, and quality control for Owens-Illinois (manufacturer of the bottle), who had tested tens of thousands of bottles and had examined the bottle in question 11 months after the accident, testified that he found the bottle to be normal in all respects and free of defects in material and workmanship. In his opinion, the bottle was not caused to break by internal pressure but by a heavy external impact--an impact greater than would be likely in the normal course of handling--and that it could not have broken in the manner described by plaintiffs. Dr. Oscar G. Fryer, a professor at Drury College who had experience in examining and testing glass containers for a period of almost 30 years and who had testified for Coca-Cola in many explosion cases throughout the United States, examined the bottle 17 months after the accident. He also testified that the found the bottle free of defects and that in his opinion the bottle was broken by a 'heavy external blow.' Both witnesses explained that they found a 'percussion cone' ² in reconstructing the bottle from the fragments, which 'cone' they insisted could result only from an external impact. Both agreed that the breakage occurred contemporaneously with the blow.

At the close of the evidence, defendant's renewed motion for a directed verdict was denied and the court submitted the issue of liability to the jury on the theory of res ipsa loquitur. ³ The court's instructions presented plaintiffs' claim that defendant 'was negligent in using a defective bottle and failed to exercise reasonable care in the inspection thereof'; further, that defendant had a duty to exercise reasonable care in inspecting the bottle to guard against defects; and, finally, expressly permitted the jury to find defendant negligent in failing 'to exercise reasonable care in bottling or handling the Bubble-Up which plaintiff purchased or (in using) a defective bottle which it should have discovered in the exercise of reasonable care.' (Italics supplied.) No objections whatsoever were taken to the charge.

Defendant, in its post-trial motion and...