Jordan v. Coca Cola Bottling Co. of Utah

• Decision Date: 24 May 1950
• Docket Number: No. 7347,7347
• Citation: 117 Utah 578,218 P.2d 660,52 A.L.R.2d 108
• Parties: , 52 A.L.R.2d 108 JORDAN, v. COCA COLA BOTTLING CO. OF UTAH.
• Court: Utah Supreme Court

Page 660

218 P.2d 660

117 Utah 578, 52 A.L.R.2d 108

JORDAN, v. COCA COLA BOTTLING CO. OF UTAH.

No. 7347.

Supreme Court of Utah.

May 24, 1950.

E. Ray Christensen, Salt Lake City, Arthur E. Moreton, Salt Lake City, Ray R. Christensen, Salt Lake City, Elias L. Day, Salt Lake City, for appellant.

Mark S. Miner, Salt Lake City, Wendle R. Jones, Salt Lake City, for respondent.

PRATT, Chief Justice.

This action was commenced by the plaintiff to recover for injuries allegedly sustained by him as the result of drinking a bottle of contaminated Coca Cola. From a verdict and judgment for plaintiff, defendant appeals.

The facts are as follows: Plaintiff is employed by the American Smelting & Refining Company, at Garfield, Utah. On October 5, 1948, he purchased a bottle of Coca Cola from a vending machine on the premises of his employer. The injury complained of consisted of his becoming sick and nauseated and remaining sick intermittently for three days, and suffering from nausea and diarrhea. This condition resulted from the drinking of the Coca-Cola, which, according to the testimony contained three flies and other foreign matter. Introduced in evidence as an exhibit on behalf of the plaintiff was a bottle of Coca Cola containing two flies and other impurities, which bottle was identified as the one from which he drank.

Plaintiff purchased two Coca Colas from the vending machine, giving one to a fellow worker. This fellow employee and another other were present when plaintiff began to drink the Coca Cola, and both testified that the plaintiff expectorated into his glove, and that there was a fly therein which he put back in the bottle. In addition, one fly remained in the bottle. Plaintiff indicates that he swallowed a third fly. Plaintiff lost no time from work, and saw no doctor.

The Coca Cola dispensing machine was leased to the American Smelting and Refining Company by the Coca Cola Company of Salt Lake City, and it was serviced by this latter company on substantially a daily basis except for week-ends and holidays. The driver of the Coca Cola truck had keys to the machine, as did also two company guards. In addition, approximately twelve guards had access to keys to the machine, so that they could refill the vending mechanism from the storage space inside the machine or from the extra cases of Coca Cola left by the driver in the foreman's office. These latter guards did not have access to the key to the money box. The American Smelting and Refining Company paid for the Coca Cola delivered by the driver, and the Coca Cola Company had no interest in the coins going into the machine. All proceeds from the machine belonged to the American Smelting and Refining Company.

The amended complaint charged negligence in bottling. Plaintiff contended, and contends that the doctrine of res ipsa loquitur applies to the case. This the defendant denies, but did nevertheless produce evidence tending to show an absence of negligence on the part of the defendant.

The operation of the Coca Cola plant in Salt Lake City was described in considerable detail. Peter Hanes, maintenance man for the defendant Company, testified that the machinery used by the defendant was the most modern and up-to-date equipment in use in the industry, and that he had never seen a finer plant and he had visited a great number of bottling plants. The plant operations as he described it consists of the bottles entering the washing machine into a rinse where tubes extend into the bottles and rinse the bottles for four seconds. The temperature of this rinse water is 70~. This rinsing process is again repeated. After the two rinses, the bottles pass to number one caustic tank containing a 3% caustic soda solution, heated to a temperature of 110~. The bottles remain in this tank for four minutes. They are then removed, drained and placed in another tank containing this time a 2% caustic soda solution heated to 150~ and there remain four minutes. The bottles are removed, drained, and placed in a third caustic soda solution, this time a 1% solution heated to 130~, and remain there for 4 minutes. The are then rinsed in fresh water heated to 100~ for three and one-half to four minutes. The bottles are then drained, and the actual washing process begins.

The bottles proceed from this point through some brushes which wash the outside of the bottles. They then go to the 'first rinse' and receive an inside rinse. This consists of a rinse tube which shoots water into the bottles at a pressure of 60 pounds. This tube goes up and then down inside the bottle, rinsing all the time, the bottles being inverted.

The bottles then pass to the first 'inside brushes' which brushes go inside the bottles and brush the sides and bottom of the bottles. These brushes revolve at 1200 RPM with water passing through the center of the brushes at 60 pounds pressure. This brushing process continues four seconds.

The brushing process is then repeated by a second set of inside brushes. Both sets of inside brushes are made of nylon. The brushes are considerably larger in diameter than the inside of a Coca Cola bottle, and are so constructed as to reach all parts of the bottles. The bottles then proceed through two plain water rinses.

Thereafter, the bottles pass a visual inspector in a single line. The inspector has a fluorescent light with a non-glare plate behind it to aid him in examing the bottles.

After the visual inspection the bottles pass to the syruper through an open space of approximately two feet. The syrup comes through an enclosed line equipped with two screens. As the syrup is being put in the bottles, a collar fits over the bottle and protects it from contamination. The bottles then go to the apparatus which puts in carbonated water, the distance between these processes being approximately 18 inches. This machine is also equipped with a collar which fits over the mouth of the bottle as it is being filled. The water comes from enclosed lines, after having been specially filtered and treated. The bottles then pass another open space of about eighteen inches, to the capper. After being capped they move to the mixer, where the bottles are inverted and spun at 3000 RPM.

The bottles then proceed to an automatic eye inspecting machine which automatically rejects any bottle having a defect, or one containing foreign substance.

It was admitted by Hanes that if the water pressure during the washing process reduced below 60 pounds, that the bottles would not be properly rinsed.

Raymon Wilmert, a field engineer for the RCA Corporation which corporation was the seller of the electric eye device described the operation of the electric eye machine. As he described this inspection, it consisted of the bottles remaining still as they pass through the eye, but the fluid inside is whirling, and any sediment, particles of dust or other foreign substances in the Coca Colas will result in those bottles being rejected by the machine.

Three test bottles of Coca Cola were introduced in evidence into which impurities had been deliberately placed, according to testimony, and had been deliberately put into the line and through the machine many times and they had been rejected every time. One bottle contained a cork floating on top; one a No. 12 shot (very small); and the other contained a bristle or bristles from the nylon brushes. Mr. Wilmert testified that the bottle containing flies and other impurities identified as the one from which plaintiff drank could not possibly go through the inspecting machine without being rejected. On cross-examination he testified that a fly covered with syrup in the bottom of a bottle would cause such a bottle to be rejected by the machine, and that whenever the machine was out of order, instead of allowing all bottles to pass through, it would reject all bottles, and the bottling process would then have to cease until the machine was repaired. Mr. Wilmert indicated that the knew of no better machine on the market than was this machine.

Dr. Curtis, a bacteriologist and sanitarian and former chief sanitarian for Salt Lake City, testified that the defendant's plant was well kept and clean and that the hot caustic solution would dissolve organic matter present in the bottles, and that it was highly improbable that the flies could go through this process and retain their identity as did these flies.

A Salt Lake City health officer testified that he had inspected defendant's plant regularly, and that the plant was clean and well kept up, that the screens were up during September and that he had never seen insects in defendant's plant.

George Walker, driver of the Coca Cola truck, testifying on cross-examination indicated that at various times when he had been filling the vending machine at the American Smelting and Refining Company plant, men at the plant had come to him with warm bottles of Coca Cola and asked him to exchange them for cold, and that he had made such exchanges, and loaded the warm Coca Colas in the vending machine. Where these warm bottles came from he did not know.

The manager of the defendant plant testified that there were other Coca Cola companies in Utah, independent of this plant and having no connection therewith; that although Salt Lake City and vicinity was the territory of the plant at Salt Lake City, that foreign Coca Cola did come in from other areas although not authorized.

Plaintiff produced no further evidence other than that connecting this bottle of Coca Cola with the vending machine, and the defendant company.

This type case is one deserving of extremely close scrutiny in that a blanket assertion of the general rules of negligence on the one extreme results in plaintiffs being for all practical purposes completely foreclosed from recovery because they will never be able to establish specific acts of negligence in relation to the specific thing or article causing the injury, and thus they may suffer a grave...