Kees v. Canada Dry Ginger Ale

Decision Date05 December 1949
Docket NumberNo. 21244,21244
Citation225 S.W.2d 169
PartiesKEES v. CANADA DRY GINGER ALE, Inc.
CourtMissouri Court of Appeals

Walter W. Calvin, Kansas City, for appellant.

Henry M. Shugart, Kansas City, Harry P. Thomson, Jr., Kansas City, for respondent.

CAVE, Judge.

This is an action for personal injuries resulting from the explosion of a bottle of Canada Dry Sparkling Water. At the conclusion of plaintiff's evidence the court sustained defendant's motion for a directed verdict, from which plaintiff appealed.

This is the second appeal in this case. Kees v. Canada Dry Ginger Ale, Inc., 239 Mo.App. 1080, 199 S.W.2d 76. On the prior appeal we reviewed the evidence at length and held that a submissible case was not made. Consequently the judgment was reversed and the cause remanded.

Plaintiff concedes that the evidence at the second trial is substantially the same as at the first trial, except the testimony of witness McGuire, which will be considered later. We consider it unnecessary to recite at length the evidence reviewed in our prior opinion, but will make a general statement of the facts which give a broad outline of the case.

Defendant bottled this Sparkling Water, charged with carbonic acid gas, at its plant in North Kansas City, Missouri, and at sometime, not shown by the evidence, shipped the same to the H. P. Lau Company, a wholesaler in Lincoln, Nebraska. How long it remained there is not show; but on January 28, 1943, the wholesaler delivered a carton of Sparkling Water to the Lovell Food Market, a retailer in Beatrice, Nebraska. The delivery was made by truck, which contained a large amount of other merchandise. The Lovell Market was a semi-self-serving grocery store and a well patronized place of business where customers ordinarily served themselves by procuring a cart and a basket and going through the store selecting the articles desired. There were six employees at the store, none of whom testified. The shipment was received at the Lovell Market on January 28 and placed in the store for sale. The bottles were in an open wooden carton with cardboard separating each bottle. The carton was placed on the shelf so that the bottles were in a horizontal position with the necks extending out. About thirty days later, plaintiff purchased two of these bottles, together with many other articles of food, but was not certain whether all the purchases were placed in one bag or in separate bags. She carried the bottles to her home and placed them in a cabinet in the kitchen where they remained for another thirty days. On the evening of March 31, while preparing dinner for guests, she removed one of the bottles from the cabinet and placed it on a table in the kitchen where it remained unopened for approximately four hours, at which time she returned to the kitchen to get the bottle; when she picked it up it exploded with a loud noise, and the glass cut and injured her hands.

At the first trial plaintiff testified about the purchase of the two bottles and the manner in which she handled them thereafter, but stated that she made no particular examination of their condition. Lovell also testified that the carton of bottles was received at his store in apparently a salable condition, and stated the manner in which the bottles were handled in his store. However, we held that his testimony, that the bottles and the caps thereon were not tampered with while in his store, was improper because he had no personal knowledge of those facts. That testimony was not introduced at the second trial.

Since we held that the evidence was insufficient to make a submissible case on the first trial, that became, and is, the law of the case, unless plaintiff introduced additional testimony at the second trial which will supply the deficiencies. Sheppard v. Travelers Protective Ass'n of America, 233 Mo.App. 602, 124 S.W.2d 528, 532.

Plaintiff relies upon the evidence of witness McGuire to supply the missing links. His deposition was taken five years after the accident. He testified that he had no independent recollection of delivering this carton to Lovell's Market, but based his testimony on the fact that he had examined the invoice in the files of the Lau Company shortly before his deposition was taken and found that it bore his signature, and from that fact testified as to the general manner of handling such goods, and that he had delivered the carton to the Lovell Market in good condition. Defendant strenuously objects to the competency of that testimony. However, we need not express an opinion on that question because, on the first appeal, we said, 199 S.W.2d at page 78: 'Assuming that the bottle was in a salable condition at the time it arrived at Lovell's store, and that it did not appear, at that time, to have been tampered with, mutilated or changed, neverthless, the bottle in question could have been mishandled by customers and employees of Lovell in his store between the time it arrived and the time it was purchased by plaintiff, which covered a period of several weeks. * * * It may...

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7 cases
  • Ferrell v. Sikeston Coca-Cola Bottling Co.
    • United States
    • Missouri Court of Appeals
    • 26 Enero 1959
    ...a plaintiff from making a submissible case of general negligence by circumstantial evidence [Maybach case, supra; Kees v. Canada Dry Ginger Ale, Mo.App., 225 S.W.2d 169, 171(3); Stephens v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 232 S.W.2d 181, 187]; and, it is on the latter basis th......
  • Copher v. Barbee, s. 8104
    • United States
    • Missouri Court of Appeals
    • 1 Octubre 1962
    ...does not preclude a plaintiff from making a submissible case of general negligence by circumstantial evidence [Kees v. Canada Dry Ginger Ale, Mo.App., 225 S.W.2d 169, 171(3); Stephens v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 232 S.W.2d 181, 187-188; Ferrell, supra, 320 S.W.2d loc. c......
  • Beuttenmuller v. Vess Bottling Co. of St. Louis
    • United States
    • Missouri Supreme Court
    • 8 Diciembre 1969
    ...we agree; it is perhaps unfortunate, however, that in Maybach and in some subsequent cases (Abernathy, supra, Kees v. Canada Dry Ginger Ale, Inc., Mo.App., 225 S.W.2d 169), the statement is made or repeated in quotations that plaintiff must negative the possibility that the bottle had been ......
  • Green v. Plaza in Clayton Condo. Ass'n
    • United States
    • Missouri Court of Appeals
    • 1 Octubre 2013
    ...104, 106 (Mo.App.K.C.1964); Hutchins v. Southview Golf Club, Inc., 343 S.W.2d 223, 224 (Mo.App.K.C.1960); Kees v. Canada Dry Ginger Ale, 225 S.W.2d 169, 171 (Mo.App.K.C.1949). Despite the well-developed case law on this issue, the Greens direct our attention to cases that include the follow......
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