Jenkins v. Harvey C. Hines Co., 359

• Decision Date: 24 March 1965
• Docket Number: No. 359,359
• Citation: 141 S.E.2d 1,264 N.C. 83
• Parties: Elizabeth C. JENKINS v. HARVEY C. HINES COMPANY.
• Court: North Carolina Supreme Court

Page 1

141 S.E.2d 1

264 N.C. 83

Elizabeth C. JENKINS v. HARVEY C. HINES COMPANY.

No. 359.

Supreme Court of North Carolina.

March 24, 1965.

LaRoque, Allen & Cheek and White & Aycock, Kinston, for plaintiff appellee.

Whitaker, Jeffress & Morris, Kinston, for defendant appellant.

BOBBITT, Justice.

Defendant assigns as error the denial of its motion, at the conclusion of all the evidence, for judgment of involuntary nonsuit.

In Styers v. Winston Coca-Cola Bottling Co., 239 N.C. 504, 80 S.E.2d 253, Parker, J., based on decisions cited, summarizes the legal principles pertinent to decision on this appeal as follows:

'It is well settled law in North Carolina that proof of injury caused by the explosion of a bottle containing a carbonated beverage, standing alone, is not sufficient to carry the case to the jury on the ground of actionable negligence. The principle of res ipsa loquitur is not applicable. Davis v. Coca-Cola Bottling Co., 228 N.C. 32, 44 S.E.2d 337; Enloe v. Charlotte Coca-Cola Bottling Co., 208 N.C. 305, 180 S.E. 582; Cashwell v. Fayetteville Pepsi-Cola Bottling Works, 174 N.C. 324, 93 S.E. 901.

'The installation by the bottler of modern machinery and appliances, such as is in general and approved use, does not ipso facto exculpate the defendant from liability. Enloe v. Charlotte Coca-Cola Bottling Co., supra; Grant v. Graham Chero-Cola Bottling Co., 176 N.C 256, 97 S.E. 27, 4 A.L.R. 1090.

'Direct evidence of actionable negligence on defendant's part is not requisite; such negligence may be inferred from relevant facts and circumstances. Enloe v. Charlotte Coca-Cola Bottling Co., supra; Broadway v. Grimes, 204 N.C. 623, 169 S.E 194; Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A.,N.S., 949.

'In cases where damages are sought for injuries caused by such explosion, when the plaintiff has offered evidence tending to show that like products filled by the same bottler under substantially similar conditions, and sold by the bottler at about the same time have exploded, there is sufficient evidence to carry the case to the jury, as such facts and circumstances permit the inference that the bottler had not exercised that degree of care required of him under the circumstances. Such similar instances are allowed to be shown as evidence of a probable like occurrence at the time of plaintiff's injury when, and only when, accompanied by proof of substantially similar circumstances and reasonable proximity in time. Davis v. Coca-Cola Bottling Co., supra; Ashkenazi v. Nehi Bottling Co., 217 N.C. 552, 8 S.E.2d 818; Enloe v. Charlotte Coca-Cola Bottling Co., supra; Broadway v. Grimes, supra; Perry v. Kelford Coca-Cola Bottling Co., 196 N.C. 175, 145 S.E. 14; Grant v. Graham Chero-Cola Bottling Co., supra.'

In accord: Graham v. Winston Coca-Cola Bottling Co., 257 N.C. 188, 125 S.E.2d 429.

Plaintiff offered evidence tending to show:

In August 1961 Douglas L. Baker, who operated a self-service retail grocery store under the name of Parkview Superette, purchased wholesale from defendant the bottled Coca-Colas sold in said store. Defendant made deliveries twice (occasionally three times) a week. Defendant's agent (driver) would remove six-bottle pasteboard cartons from wooden crates and stack them six to eight cartons high on the Coca-Cola display stand.

On Friday, August 18, 1961, or on Saturday, August 19, 1961, plaintiff, a regular customer of Parkview Superette, purchased a six-bottle pasteboard carton of regular size Coca-Colas, had it placed in her car and drove to her home. Upon arrival, the Coca-Colas were placed in a refrigerator in a room in a 'little house,' located 'about 100 feet' from plaintiff's home. The Coca-Colas remained in said (extra) refrigerator until plaintiff's husband brought the carton into the kitchen of plaintiff's home about 1:00 p. m. on Sunday, August 20th and placed it on a counter in the kitchen. Shortly thereafter, while plaintiff was taking one of the bottles from said carton to place it in her (kitchen) refrigerator, it exploded in her right hand. On account of serious injury to her right index finger and other cuts received from 'flying glass,' plaintiff was taken quickly to a hospital.

After the explosion, the lower part of the bottle, 'maybe a third,' was in plaintiff's right hand. On the floor, there was a section of the neck of the bottle, 'an inch and a half maybe,' with the cap or crown on it. There was glass 'all over the kitchen and into the dining room from the Coca-Cola bottle.' The broken glass was put in a garbage can and disposed of the next day by plaintiff's cook.

On August 22, 1961, one John Kassouf, who had leased from plaintiff's husband a concession stand in a tobacco warehouse, was taking a bottled Coca-Cola from the 'drink box.' The bottle exploded in his hand, the glass breaking into 'some pretty good size and some smaller pieces.' No one was injured. Kassouf had purchased Coca-Colas, including the bottle that exploded, from defendant. They had been delivered to him on Friday, August 18th, when Kassouf was stocking the concession stand for the opening of the tobacco market on Tuesday, August 22nd. It was stipulated 'that all Coca-Colas bottled by the defendant during 1961 were bottled under substantially similar conditions.'

In addition, plaintiff offered evidence tending to show: (1) that the Coca-Colas purchased by plaintiff from Parkview Superette did not strike any object while in her possession or presence; (2) that these Coca-Colas struck no object while in the possession or presence of Mr. Jenkins on Sunday, August 20th; and (3) that the bottle of Coca-Cola Kassouf was bringing out of the 'drink box' on Tuesday, August 22nd, after it had been delivered 'inside the concession stand,' struck no object while in Kassouf's possession or presence.

The testimony as to the explosion in Kassouf's hand on August 22, 1961 of a bottle of Coca-Cola sold and delivered to him by defendant on August 18, 1961, was sufficient, in our opinion, to support a finding that this incident occurred under 'substantially similar circumstances and reasonable proximity in time' as the incident when plaintiff was injured by the exploding bottle of Coca-Cola.

Defendant asserts the rule adopted by this Court requires proof of more than one 'similar instance.' Certainly, the rule as stated refers to 'similar instances.' With reference to the explosion of a bottle containing a carbonated drink, we find no decision of this Court to the effect that evidence of one similar instance is sufficient to carry the case to the jury. On the other hand, we find no decision where the plaintiff was nonsuited on the ground evidence of one similar instance was insufficient.

When we consider decisions involving deleterious matter in a bottled drink, the following appears: In Hampton v. Thomasville Coca-Cola Bottling Co., 208 N.C. 331, 180 S.E. 584, the third headnote indicates proof of one 'similar instance' would be sufficient. However, the record (and less clearly, the opinion) discloses that proof of more than one such instance was offered. In Tickle v. Hobgood, 216 N.C. 221, 4 S.E.2d 444, and in Elledge v. Pepsi Cola Bottling Co., 252 N.C. 337, 113 S.E.2d 435, the plaintiff was nonsuited. Although reference is made to the fact that plaintiff offered evidence of only one 'similar instance,' this was not the basis of decision.

In Caudle v. F. M. Bohonnon Tobacco Co., 220 N.C. 105, 16 S.E.2d 680, where plaintiff was injured by a fishhook in a plug of chewing tobacco, evidence was offered of one other similar (?) instance. This Court, by a majority of four to three, held the case had been properly submitted to the jury. The following from the dissenting opinion of Barnhill, J. (later C. J.), is noteworthy: 'Even if it be conceded that one other instance is sufficient to carry the case to the jury, this evidence signally fails to establish the essentials of such other instances under the rule to which we have consistently adhered.' Also, see Corum v. R. J. Reynolds Tobacco Co., 205 N.C. 213, 171 S.E. 78.

In our opinion, whether a case should be submitted to the jury should not depend solely upon whether there is evidence of only one or of more than one 'similar instance.' Depending upon the circumstances, one such instance may well be of greater significance than two or more others.

Conceding, without deciding, that one such 'similar instance,' nothing else appearing, may not be sufficient, yet such 'similar instance' is a significant evidential circumstance for consideration in determining whether, upon all the evidence, the case is one for the jury.

Defendant's evidence as well as that offered by plaintiff is to be considered in the light most favorable to plaintiff. Pinyan v. Settle, 263 N.C. 578, 584, 139 S.E.2d 863.

Defendant offered evidence tending to show its procedures in handling bottles collected and brought to its plant by its drivers, and its procedures in filling, charging, capping, carting, storing and delivering bottled Coca-Colas. While much of this evidence is favorable to defendant, portions thereof from which inferences favorable to plaintiff may be reasonably drawn include the matters set forth below.

The cost of bottles is defendant's 'biggest expense item.' In 1961, defendant purchased bottles from Laurens and from Owens-Illinois. However, '(a) good percentage of the empty bottles returned to' defendant's plant were not 'originally purchased from our company.' In the course of its business, defendant collected empty bottles 'purchased in other areas,' e. g., Fayetteville and Charlotte. 'A good percentage of the bottles' returned to defendant's plant were broken, chipped, scuffed, cracked or 'in some way defaced.' Ordinarily, a bottle was used from one to three years.

Washing the bottles is the first process. If the boys who put the returned bottles on the loading machine 'see a bottle that is chipped on the top or cracked or broken, then they...