Johnson v. Louisiana Coca-Cola Bottling Co.

• Decision Date: 23 February 1953
• Docket Number: No. 20019,COCA-COLA,20019
• Citation: 63 So.2d 459
• Parties: JOHNSON v. LOUISIANABOTTLING CO., Limited.
• Court: Court of Appeal of Louisiana — District of US

Page 459

63 So.2d 459

JOHNSON v.LOUISIANA COCA-COLA BOTTLING CO., Limited.

No. 20019.

Court of Appeal of Louisiana, Orleans.

Feb. 23, 1953.

Rehearing Denied March 23, 1953.

May & Carrere and Herman J. Schulze, New Orleans, for appellant.

Joseph Rosenberg, New Orleans, for appellee.

REGAN, Judge.

Plaintiff, Walter Johnson, initiated this suit against the defendant, Louisiana Coca-Cola Bottling Company, Ltd. endeavoring to recover the sum of $25,000.00 for loss of his left eye as the result of an explosion of a bottle of coca-cola on June 10th, 1951, and in consequence thereof he was unable to work and was thus deprived of his earning capacity.

Defendant answered and generally denied the allegations of the petition, however, it admitted that it bottles and dispenses coca-cola, but insisted that the doctrine of res ipsa loquitur, which the plaintiff seeks to invoke, is inapplicable to this case.

After a trial on the merits there was judgment in favor of plaintiff in the sum of $15,000 and defendant has prosecuted this appeal.

The record reveals that on June 7th, 1951, the defendant made a delivery of six cases of coca-cola to Mike Badalamenti, a storekeeper in Oakville, Louisiana; on the morning of June 10th, 1951, Badalamenti sold and delivered one or two cases of this beverage to Mabel Williams, plaintiff's sister; that Mabel Williams, who was giving a party following the baptism of her husband, invited plaintiff, her brother, to her home and asked him if he would ice and later serve the coca-cola to her guests; about 10:30 a. m. he carried two cases of the beverage from Mabel's kitchen to her rear yard, chipped seventy-five pounds of ice in a 'wooden keg' and then placed one and one-half cases of the coca-cola on top of the ice; he finished icing the drinks about 11:00 a. m.; at approximately the hour of 2:00 p. m., which was after the baptism, the party ensued and plaintiff was requested to serve one of the guests a coca-cola; he leaned over the keg, but before he touched anything contained therein, one of the bottles exploded and the neck therefrom struck him in the eye, resulting in the ultimate loss thereof.

Plaintiff contends that he is not at fault for the accident; he is informed and believes that the bottle was defective or that it was too highly charged, either of which caused the explosion; however, he is not actually acquainted with the true reason, but that the cause thereof is within the knowledge of the defendant and therefore, this case falls within the purview of the doctrine of res ipsa loquitur.

Defendant contends that the 'bottles used by it are made by the Chattanooga Glass Company, and are made subject to rigid specifications, and under strict supervision and inspection by the manufacturer and representative of respondent.That the Bureau of Standards in Washington has recommended that the minimum glass content of six ounce bottles be twelve ounces, and that each Coca-Cola bottle has more than fourteen ounces.That, on the hottest summer day, the internal pressure in a full bottle of Coca-Cola is never over ninety pounds per square inch, whereas, the bursting pressure of a Coca-Cola bottle is between five hundred ninety-five to one thousand and fifty pounds per square inch.'Defendant insists that the doctrine of res ipsa loquitur has no application herein and that the Supreme Court of this State, in the recent case of Le Blanc v. Louisiana Coca-Cola Bottling Co., Ltd., 1952, 221 La. 919, 60 So.2d 873, 875, expressly distinguished 'bottle explosion cases' from those in which 'a foreign ingredient' is involved as is reflected by the following language extracted therefrom:

'The plaintiffs in the explosion cases depend entirely upon the law of negligence for recovery; the plaintiff in this case is entitled to rely on defendant's implied warranty that its product is safe for human consumption.'

The defendant, in view of the foregoing language, reasons that the Supreme Court has removed the instant case from the scope of the Le Blanc decision and we must now turn to the law of negligence in seeking a solution of this case; therefore, since there was no affirmative proof of negligence on the part of the defendant and the plaintiff did not eliminate the possibility of some other cause for the explosion, the doctrine of res ipsa loquitur has no application, so as to impose liability upon the defendant.In order to factually substantiate this syllogism the defendant points out that the beverage left defendant's plant in New Orleans on a hot June day and was delivered by its truck to Badalamenti in Oakville, Louisiana; the coca-cola remained in Badalamenti's possession and under his control until June 10th, 1951, at which time he placed one of the cases on his truck and delivered it to the kitchen of Mabel Williams' home; the case was then handled by the plaintiff, who removed it from the kitchen to the rear yard and the individual bottles from the case to the 'wooden keg', at which time it was iced.Defendant insists that in view of these multiple handlings plaintiff has failed to show that the bottle had not been 'tampered with' subsequent to the time it left the control of the defendant.

In conjunction with this aspect of the casedefendant tendered the expert testimony of Dr. Oscar G. Fryer, Professor of Physics at Drury College, Springfield, Missouri, who has been teaching that subject for fourteen years.We shall quote liberally from this testimony in view of the fact that defendant placed more than the usual emphasis thereon.Dr. Fryer was graduated from Drury College with both an A.B. and B.S. degree.He obtained his Master of Science degree in Physics from the University of Colorado and his Doctorate of Philosophy in Physics from Indiana University.There is no doubt in our minds that Dr. Fryer possesses an excellent formal education in the science of Physics.Dr. Fryer testified that he has engaged in research work in the field of gases as they relate to the soft drink industry for many years, and during the course of this research he made a study of beverage bottles, particularly those containing coca-cola, as they may be affected by gases and other elements.He stated that he had made a complete study of the coca-cola bottling plant in the City of New Orleans in all of its phases which are pertinent to this case; he tested the breaking point of bottles at random in the coca-cola plant and engaged in innumerable experiments previously; the average pressure attained when the bottles at the plant exploded was 805 pounds per square inch and the average pressure at which the various bottles were broken in numerous tests elsewhere was approximately 750 pounds per square inch; it requires 200 pounds per square inch of pressure to blow a cap off of a bottle of coca-cola and approximately 750 pounds per square inch, as related hereinabove, to explode a bottle.The judge of the court, a qua, permitted Dr. Fryer to demonstrate the explosion point of coca-cola bottles which were purchased at random by the court attaches.The first bottle exploded under a pressure of 990 pounds.At this point in the demonstration counsel for the defendant directed the court's attention to the great number of fragments remaining after the bottle was exploded and compared it with the bottle introduced in evidence in the present case, which reflected that the neck thereof was sheered off by a diagonal cut leaving, in the main, two pieces of broken bottle.The second bottle tested exploded under a pressure of 1120 pounds per square inch.The final demonstration revealed that 185 pounds per square inch blew the cap off of a coca-cola bottle.Dr. Fryer continued by stating that if a bottle of coca-cola is put in a tub of ice at 11:00 in the morning and is allowed to remain therein until 2:00 p. m. that the temperature would be reduced to something like 32 to 34 degrees and that the effect of the decrease in temperature would reduce the inside pressure of the bottle to around 25 to 30 pounds per square inch.

A fair summary of Dr. Fryer's testimony reveals that a bottle, whether it be perfect or defective, still breaks as a result of internal pressure when the said internal pressure is at its highest and not its lowest point as was the bottle in this case which had been...