Johnson v. Coca Cola Bottling Co. of Willmar

• Citation: 235 Minn. 471,51 N.W.2d 573
• Decision Date: 25 January 1952
• Docket Number: No. 35437,35437
• Parties: JOHNSON v. COCA COLA BOTTLING CO. OF WILLMAR, Inc.
• Court: Supreme Court of Minnesota (US)

Page 573

51 N.W.2d 573

235 Minn. 471

JOHNSON v. COCA COLA BOTTLING CO. OF WILLMAR, Inc.

No. 35437.

Supreme Court of Minnesota.

Jan. 25, 1952.

Syllabus by the Court.

In an action for injuries arising out of an exploding bottle of carbonated beverage, the Res ipsa loquitur doctrine may be applied in the court's charge to the jury upon the theory that defendant had control of the bottle at the time of the alleged negligent act although not at the time of the accident, provided, that plaintiff shall first prove that the condition of the bottle or container had not been changed after it left defendant's possession, that plaintiff had handled the bottle carefully, and that the injury was not due to any voluntary action on her part.

Frank J. Murray and Helena C. Murray, Clara City, John M. Prins, St. Paul, for appellant.

Sexton, Tyrrell & Jardine, St. Paul, for respondent.

FRANK T. GALLAGHER, Justice.

Appeal from an order of the district court denying plaintiff's motion for judgment notwithstanding the verdict or a new trial.

Plaintiff was employed by the village of Clara City in its municipal liquor store. Defendant is a bottling company which sold and delivered Coca Cola to the store usually about twice a week. Deliveries of the product were made by defendant to the liquor store on May 21 and May 24, 1949. It was the custom of defendant, sole supplier of the beverage to the store, to place it in the basement of the place of business, where the cases were piled in stacks by defendant's deliverymen. They were taken from there to the cooler, when needed, by bartenders employed by the store.

On May 26, 1949, about 4 o'clock in the afternoon, a customer of the store ordered a bottle of Coca Cola from plaintiff, who was acting as a waitress in the place. She went to a cooler in the store to get the beverage. She testified that she stooped down, opened the door of the cooler, and reached in with her right had for a bottle of the beverage which was on the shelf. As she reached for the bottle, it exploded with a noise which she described as a 'definite explosion * * * quite loud,' and which a patron on the premises at the time described as similar to the noise caused by the bursting of a paper bag. Plaintiff's hand was injured.

It appears from the record that Lawrence P. Freisleben, one of the four bartenders employed by the store, had placed additional bottles of Coca Cola in the cooler at approximately 1 o'clock on the same afternoon and that he and the other bartenders employed by the store were the only ones who supplied the cooler with Coca Cola from time to time. Freisleben testified that he went to the basement of the store on that day, took in his two hands the top case from a stack of Coca Cola cases which stood about three and one-half feet from the foot of the basement stairway, turned around, walked up the steps with it, set in on a shelf in front of the cooler, and proceeded to remove the bottles from the case and place them in the cooler. He said that the cooler was not completely empty at the time he did this, but that there were a few bottles left, which he placed on the back bar while he put in the bottles from the case; that the bottles were taken out of the case one by one and laid in the cooler on a wooden lattice shelf; that he placed eight or nine bottles along the rack and approximately three rows on top of that; and that the top two rows tapered off somewhat. He then put into the cooler the bottles he had placed on the back bar and stood them up in front. He testified that he did not bump the cases on or against anything, and that he did not strike the bottles on anything in taking the case from the basement and depositing the bottles in the cooler.

Other employes, who at times filled the cooler and carried cases of the product from the stacks in the basement, testified that they used the same method of transporting the product and placing the individual bottles in the cooler, and that neither cases nor bottles received any bumps nor struck any hard objects while in the hands of these employes. The cooler in which the bottles were placed was an electric refrigerator about six feet long, three feet wide, and 18 inches deep, with three compartments, each with a separate door. The Coca Cola was stored in a compartment separate from the other beverages. The cooler was kept at a temperature of 40 degrees and had an automatic control and a small built-in fan, which was used for circulating the air throughout the inside. There was testimony that the basement from which the case of Coca Cola was brought always had a temperature of 65 to 70 degrees; that there were no windows admitting direct sunlight into the basement; that there were no radiators in the basement; that the furnace was 20 feet from the place where the Coca Cola was stacked; that no heat was thrown in the general direction of the Coca Cola cases; and that the temperature on May 26, 1949, was as usual. There was also testimony with reference to the distributing process used by the bottling company, the manufacturing and bottling process, inspection, piling, storage, and handling.

The only question we need consider for a determination of this case is whether the trial court erred in denying plaintiff's request to charge the jury that the doctrine of Res ipsa loquitur was applicable.

The application or nonapplication of the doctrine of Res ipsa loquitur in connection with exploding bottle and food container cases in this country appears to be divided into three broad general holdings, as follows:

(1) That the doctrine may not be applied in situations where the bottle itself has passed out of the control of the defendant (generally the bottler).

(2) That the doctrine may be applied on the theory that the defendant (bottler) had control of the instrumentality (or bottle) causing the injury at the time of the alleged negligent act, although not at the time of the accident, Provided, that plaintiff shall first prove that the condition of the instrumentality had not been changed after it left defendant's possession and that plaintiff himself was not responsible for the accident.

(3) That the doctrine may be applied when there is a showing of similar explosions or the explosion of more than one bottle of defendant's product at times reasonably proximate to that of the accident in question. For example, in Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A.,N.S., 949, it was held that the mere explosion of one bottle of Coca Cola, which resulted in an injury, was insufficient to carry the case to the jury under the doctrine of Res ipsa loquitur. See, also, Stone v. Van Noy R. News Co., 153 Ky. 240, 154 S.W. 1092, and cases cited in Annotation, 4 A.L.R.2d 466, et seq., on the three general holdings referred to above.

For varying reasons explained in the following cases, some courts have refused to apply the Res ipsa loquitur doctrine in cases involving exploding bottles of carbonated beverages. Gerber v. Faber, 54 Cal.App.2d 674, 129 P.2d 485; Loebig's Guardian v. Coca-Cola Bottling Co., 259 Ky. 124, 81 S.W.2d 910; Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60, 68 P.2d 952; Glaser v. Seitz, 35 Misc. 341, 71 N.Y.S. 942; Luciano v. Morgan, Inc., 267 App.Div. 785, 45 N.Y.S.2d 502; Winfree v. Coca-Cola Bottling Works, 19 Tenn.App. 144, 83 S.W.2d 903; Naumann v. Wehle Brewing Co., 127 Conn. 44, 15 A.2d 181; Alagood v. Coca Cola Bottling Co., Tex.Civ. App., 135 S.W.2d 1056; Curley v. Ruppert, 272 App.Div. 441, 71 N.Y.S.2d 578; cf. Berkens v. Denver Coca-Cola Bottling Co., 109 Colo. 140, 122 P.2d 884; Ruffin v. Coca Cola Bottling Co., 311 Mass. 514, 42 N.E.2d 259; Slack v. Premier-Pabst Corp., 1 Terry 97, 40 Del. 97, 5 A.2d 516; Wheeler v. Laurel Bottling Works, 111 Miss. 442, 71 So. 743, L.R.A.1916E, 1074; Seven-Up Bottling Co., Inc., v. Gretes, 182 Va. 138, 27 S.E.2d 925; Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A.,N.S., 949.

On the other hand, many jurisdictions have applied the doctrine for reasons set out in the following cases in connection with exploding bottles. Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762, 73 S.E. 1087; Stolle v. Anheuser-Busch, Inc. 307 Mo. 520, 271 S.W. 497, 39 A.L.R. 1001; Bradley v. Conway Springs Bottling Co. 154 Kan. 282, 118 P.2d 601; Ortego v. Nehi Bottling Works, 199 La. 599, 6 So.2d 677; MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365, 29 A.2d 868; Macres v. Coca-Cola Bottling Co., Inc., 290 Mich. 567, 287 N.W. 922; Benkendorfer v. Barrett, Tex.Civ.App., 143 S.W.2d 1020; Macon Coca-Cola Bottling Co. v. Crane, 55 Ga.App. 573, 190 S.E. 879; Cole v. Pepsi-Cola Bottling Co., 65 Ga.App. 204, 15 S.E.2d 543; Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445; Joly v. Coca-Cola Bottling Co., 115 Vt. 174, 55 A.2d 181; Hoffing v. Coca-Cola Bottling Co., 87 Cal.App.2d 371, 197 P.2d 56; Gordon v. Aztec Brewing Co., Cal.App., 196 P.2d 38; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436; Brunskill v. Farabi, Mo.App., 181 S.W.2d 549; Auzenne v. Gulf Pub. Serv. Co., La.App., 181 So. 54; Lanza v. De Ridder Coca Cola Bottling Co La.App., 3 So.2d 217; Canada Dry Ginger Ale Co. Inc., v. Jochum, D.C.Mun.App., 43 A.2d 42.

While a detailed discussion of the reasoning used for and against the application of the doctrine of Res ipsa loquitur in the cases cited above would be interesting, space will not permit it, and it would serve no useful purpose, since the principal question for determination here is whether the trial court should have granted plaintiff's requested instruction as to the applicability of the doctrine under the facts and circumstances of the instant case.

We are considering here, primarily, the applicability of the rule in connection with bottled-beverages and good-container cases, particularly carbonated beverages. This general subject is treated in Annotation, 4 A.L.R.2d 466, et seq. The annotation is concerned...