Kees v. Canada Dry Ginger Ale

• Citation: 199 S.W.2d 76,239 Mo.App. 1080
• Parties: Rosa Alma Kees, Respondent, v. Canada Dry Ginger Ale, Inc., A Corporation, Appellant
• Decision Date: 13 January 1947
• Court: Court of Appeals of Kansas

199 S.W.2d 76

239 Mo.App. 1080

Rosa Alma Kees, Respondent, v. Canada Dry Ginger Ale, Inc., A Corporation, Appellant

Court of Appeals of Missouri, Kansas City

January 13, 1947

Appeal from Circuit Court of Jackson County; Hon. Ben Terte, Judge.

Reversed & Remanded.

Henry M. Shughart and Harry P. Thomson, Jr., for appellant.

(a) Plaintiff was not entitled to submit her case to the jury under the doctrine of res ipsa loquitur for the reason that the evidence did not show that there was no change in the condition of the bottle of carbonated beverage involved or its care and treatment after it left the defendant's possession, and the evidence affirmatively showed the bottle passed through the control and possession of others to the plaintiff's control and possession where it was at the time of the incident complained of. Food, Sec 69, Vol. 36, C. J. S. 1114; Riecke v. Anheuser-Busch Brewing Association, 206 Mo.App. 246, 227 S.W. 631; Stolle v. Anheuser-Busch, Inc., 307 Mo. 520, 271 S.W. 497; Tayer v. York Machinery Corporations, 342 Mo. 912, 119 S.W.2d 240; Palmer v. Hygrade Water and Soda Company, 236 Mo.App. 247, 151 S.W.2d 548; Counts v Coca-Cola Bottling Company of St. Louis, (Mo. App.) 149 S.W.2d 418; Brunskill v. Farabi, (Mo. App.) 181 S.W.2d 549; Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405, 158 S.W.2d 721; Hoback v. Coca-Cola Bottling Works of Nashville, 20 Tenn.App. 280, 98 S.W.2d 113; Dunn et al. v. Hoffman Beverage Company, (N J.) 126 N. J. L. 556, 20 A.2d 352; Markowitz v. Liebert and Obert, (N. J.) 23 N. J. Misc. 281, 43 A.2d 794; Hughes v. Miami Coca-Cola Bottling Company, (Florida) 19 So.2d 862; Seven-Up Bottling Company, Inc., v. Gretes, 182 Va. 138, 27 S.E.2d 925; Ruffin v. Coca-Cola Bottling Company, 311 Mass. 514, 42 N.E.2d 259; Berkens v. Denver Coca-Cola Bottling Co., 109 Colo. 140, 122 P.2d 884; Slack v. Premium-Pabst Corp., (Del.) 5 A.2d 516; Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60, 68 P.2d 952. (b) Under the evidence in the case the cause of plaintiff's injury was left to speculation and conjecture and no negligence on the part of the defendant was shown. Luettecke v. City of St. Louis et al., 346 Mo. 168, 140 S.W.2d 45; Palmer v. Hygrade Water and Soda Company et al., 236 Mo.App. 247, 151 S.W.2d 548; Dunn et al. v. Hoffman Beverage Company, 126 N. J. L. 556, 20 A.2d 352; Hoback v. Coca-Cola Bottling Works of Nashville, 20 Tenn.App. 280, 98 S.W.2d 113. (1) The court erred in admitting over the objections of the defendant testimony of witness Lovell concerning the condition and treatment of the bottle of carbonated beverage involved. (a) Such testimony concerned facts not within the knowledge of witness Lovell. Evidence, Sec. 438, Vol. 32, C. J. S. 70; Evidence, Sec. 471, Vol. 32, C. J. S. 118; Janis v. Jankins, (Mo.) 58 S.W.2d 298; O'Neil Implement Company et al. v. Gordon et al., (Mo. App.) 269 S.W. 636; Rudy v. C. C. and St. Louis Ry. Co., (Mo. App.) 278 S.W. 814; Gulf, C. and S. F. Ry. Co. v. Dean, (Tex.) 261 S.W. 520. (b) The portions of witness Lovell's testimony to which the defendant objected constituted hearsay. Wigmore on Evidence, Vol. 5, p. 3, Sec. 1362; Wilson v. Kansas City Public Service Co. (Mo.), 193 S.W.2d 5. (c) The testimony of witness Lovell which was objected to constituted mere opinions and conclusions on his part. Schmidt v. Pitluck (Mo. App.), 26 S.W.2d 859; Cole et al v. Empire District Electric Company, 331 Mo. 824, 55 S.W.2d 434; Fishang v. Eyermann Contracting Company, 333 Mo. 874, 63 S.W.2d 30; Weinel v. Hesse (Mo. App.), 174 S.W.2d 903; Hall v. Wilkerson (Mo. App.), 84 S.W.2d 1063; Burley v. State Social Security Commission, 236 Mo.App. 930, 163 S.W.2d 95; American Paper Products Company v. Morton Salt Company (Mo. App.), 279 S.W. 761. (2) The court erred in refusing the withdrawal instructions offered by the defendant. (a) Instruction "A" offered by defendant should have been given withdrawing from the consideration of the jury the testimony of witness Lovell to the effect the bottle of carbonated beverage was not tampered with or changed by any of his employees while in his store. Raymond on Missouri Instructions to Juries, Vol. I, p. 142, Sec. 141; Monsour v. Excelsior Tobacco Co. (Mo.), 144 S.W.2d 62; Brunskill v. Farabi (Mo.), 181 S.W.2d 549; Felber v. Union Electric Light and Power Company et al., 340 Mo. 201, 100 S.W.2d 494. (b) Instruction "B" offered by the defendant should have been given withdrawing from the consideration of the jury the testimony of witness Lovell to the effect the carbonated beverage was in the same condition when purchased by the plaintiff as when received by Lovell's store. Raymond on Missouri Instructions to Juries, Vol. I, p. 142, Sec. 141; Monsour v. Excelsior Tobacco Co. (Mo.), 144 S.W.2d 62; Brunskill v. Farabi (Mo. App.), 181 S.W.2d 549; Felber v. Union Electric Light and Power Company et al., 340 Mo. 201, 100 S.W.2d 494. (3) Plaintiff's requested instruction 1 as given constituted reversible error. (a) It submitted to the jury two theories of negligence in the disjunctive, one of which was completely unsupported by the evidence. Martin v. Springfield City Water Company (Mo. App.), 128 S.W.2d 674; Carlisle v. Tilghmon (Mo.), 159 S.W.2d 663. (b) Plaintiff's instruction No. 1 as given submitted to the jury the issue of the defendant's negligence in the manufacture of the bottle involved which issue and fact was not in evidence. Gundelach v. Compagnie Generale Transatlantique (Mo.), 41 S.W.2d 1; Raymond on Missouri Instructions to Juries, Vol. I, p. 75, Sec. 92. (c) Plaintiff's requested instruction 1 as given submitted and allowed the jury to find that the bottle involved and its contents were handled in a careful and prudent manner by any and all persons into whose hands and possession it came when such issue or fact was not supported by the evidence. Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1; Raymond on Missouri Instructions to Juries, Vol. I, p. 75, Sec. 92. (4) Plaintiff's requested instruction 4 as given constituted reversible error. (a) It assumed the plaintiff endured bodily pain and anguish. Weinel v. Hesse et al. (Mo. App.), 174 S.W.2d 903; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; McCombs v. Ellsberry et al., 337 Mo. 491, 85 S.W.2d 135; Weddle v. Tarkio Electric and Water Company (Mo. App.), 230 S.W. 386. (b) Plaintiff's requested instruction No. 4 as given assumed that the plaintiff would suffer pain and mental anguish in the future. Weinel v. Hesse et al. (Mo. App.), 174 S.W.2d 903; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; McCombs v. Ellsberry et al., 337 Mo. 491, 85 S.W.2d 135; Weddle v. Tarkio Electric and Water Company (Mo. App.), 230 S.W. 386. (5) The amount of the verdict was excessive. Summa v. Morgan Real Estate Company, 350 Mo. 205, 175 S.W.2d 390.

Calvin & Kimbrell, Walter W. Calvin and Bert S. Kimbrell, for respondent.

(1) Plaintiff's amended petition, grounded upon the theory of res ipsa loquitur, alleged a submissible cause of action against the defendant; and, inasmuch as her testimony tended to support each and every material allegation thereof the court did not commit prejudicial and reversible error, either in denying or refusing the defendant's motion for a directed verdict or in submitting the cause to the jury. Rickey v. Anheuser-Busch Brewing Asso., 206 Mo.App. 246, 227 S.W. 631; Stolle v. Anheuser-Busch, Inc., 307 Mo. 520, 271 S.W. 497, 39 A. L. R. 1001; Glasco Elec. Co. v. Union Elec. Lt. & Power Co., 332 Mo. 1079, 61 S.W.2d 955; Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001; Evans v. Mo. Pacific R. R. Co., 342 Mo. 420, 116 S.W. (2d); Walter v. Adams Transfer & Storage Co., 235 Mo.App. 713, 141 S.W.2d 205; Counts v. Coca-Cola Bottling Co. (Mo. App.), 149 S.W.2d 418; Palmer v. Hygrade Water & Soda Co., 236 Mo.App. 247, 151 S.W.2d 548; Henneke v. Gasconade Power Co., 236 Mo.App. 100, 152 S.W.2d 667; Gibbs v. General Motors Corporation, 350 Mo. 431, 166 S.W.2d 575; Brunskill v. Farabi (Mo. App.), 181 S.W.2d 549; Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762, 73 S.E. 1087. (2) Neither did the court commit prejudicial and reversible error in admitting, over the defendant's objection and exception, the testimony of the witness, Harold A. Lovell, concerning the condition and treatment of the bottle in question. Jones, Commentaries on Evidence (Second Edition), Vol. 3, Secs. 1256 and 1257, p. 2314 et seq.; 32 C. J. S., Sec. 449, p. 86, and Sec. 455, p. 94; Rainer v. Quincy, etc., Ry. Co. (Mo.), 271 S.W. 500; Steffen v. Southwestern Bell Telephone Co., 331 Mo. 574, 56 S.W.2d 47; Adams v. Carlo (Mo. App.), 84 S.W.2d 682; Dodd v. Terminal, etc., Ass'n. (Mo. App.), 108 S.W.2d 982; Long v. F. W. Woolworth Co., 232 Mo.App. 417, 109 S.W.2d 85. (3) Neither did the court commit prejudicial and reversible error in refusing the withdrawal instructions A and B as tendered by the defendant. Monroe v. Great Atlantic & Pacific Tea Co., 230 Mo.App. 495, 92 S.W.2d 912; Atchison v. Weakley, 350 Mo. 1092, 169 S.W.2d 914; Bornson v. Missouri-Kansas-Texas Rld. Co., 351 Mo. 214, 172 S.W.2d 826; Long v. Thompson (Mo.), 182 S.W.2d 96. (4) Neither did the court commit prejudicial and reversible error in giving instruction No. 1, inasmuch as the giving thereof, was warranted by the allegations of the plaintiff's amended petition; and, also by the testimony which was adduced in support thereof. 38 Corpus Juris, page 973, Section 20; Restatement, Law of Torts, Sections 395 and 400; Lill v. Murphy Door Bed Co. of Chicago, 290 Ill.App. 328, 8 N.E.2d 714; Armour & Co. v. Leasure (Md.), 9 A.2d 527; Davidson v. Montgomery Ward & Co., 171 Ill.App. 335, 367; Slavin v. Leggett & Co., 114 N. J. Law 421, 177 A. 120; Swift & Co. v. Hawkins, 174 Miss. 253, 164 So. 231; Gittelson v. Gotham...