Keller v. Coca Cola Bottling Co. of Walla Walla, Wash.

• Decision Date: 15 October 1958
• Citation: 330 P.2d 346,214 Or. 654
• Parties: Lillian KELLER, Respondent, v. COCA COLA BOTTLING CO., OF WALLA WALLA, WASHINGTON, a corporation, Appellant.
• Court: Oregon Supreme Court

Page 346

330 P.2d 346

214 Or. 654

Lillian KELLER, Respondent, v. COCA COLA BOTTLING CO., OF WALLA WALLA, WASHINGTON, a corporation, Appellant.

Supreme Court of Oregon.

Argued and Submitted May 5, 1958. at Pendleton.

Decided Oct. 15, 1958.

John F. Kilkenny and John H. Kottkamp, Pendleton, argued the cause for appellant. With John H. Kottkamp on the brief were Kilkenny & Fabre, Pendleton.

Robert W. Collins, Pendleton, argued the cause and filed a brief for respondent.

Before PERRY, C. J., and ROSSMAN, LUSK, McALLISTER and SLOAN, JJ.

SLOAN, Justice.

This is an action in tort by plaintiff-respondent seeking damages for injury alleged to have been caused by drinking from a bottle of Coca Cola containing a cigar stub. She alleged that she was served the bottle at the coffee shop of a hotel in Pendleton, and that the bottle in question had been bottled and supplied by defendant. Trial by jury resulted in a verdict and judgment for plaintiff. Defendant appeals.

Defendant's first assignment presents the principal issue to be decided. It challenges the refusal of the trial court to direct a verdict for defendant or, in the alternative, to remove certain specifications of negligence from the jury's consideration. This is a case of first impression in Oregon.

The assignment requires a statement of the facts and inferences to be drawn in a light most favorable to plaintiff. A careful examination of the fact structure of this case reveals these facts which can be taken as proved: The bottle served to plaintiff was of the familiar shape and size so widely known as a 'coke' bottle. Plaintiff drank about half its contents before discovering a very bitter taste and becoming nauseous. Its contents had the appearance of that product. The defendant was the only person to supply Coca Cola to the hotel. The bottle was taken from its regular place of cooling and served in the usual manner. The waitress detected no difference between this and other bottles nor in the removal of its cap. She could find no evidence that the bottle had been opened and testified she could have noticed the difference if the bottle had been opened. This was verified when this waitress, upon cross-examination, readily detected that a bottle handed to her by defendant's counsel, to test her ability, had been previously opened. There is no evidence to indicate that this bottle had been handled by the hotel employes in any different manner from any other bottle. Nevertheless, we reach the ultimate fact that there was ample evidence to establish the presence of foreign substance, described as a cigar stub.

The defendant contends that the evidence of care exercised by defendant in its cleaning and filling process eliminates entirely the probability that it could have entered or remained in the bottle at that stage of the processing. It further contends that an inference must be drawn, therefore, that some meddler steathily removed the cap, inserted the cigar stub and carefully recapped the bottle. It emphasizes that its competitors had access to the storeroom where the Coca Cola was stored and we should, therefore, assume or infer that this rascallity was perpetrated by an unscrupulous competitor.

The crux of the problem is, therefore, the effect of this lack of complete control by the defendant, as reflected by the opportunity to tamper, upon the usual inference of negligence arising from the presence of foreign substance in a sealed container. Harper and James, The Law of Torts, Vol. II, § 28.14 et seq.; 52 A.L.R.2d 159. Does this require the plaintiff to affirmatively prove that the substance was in the bottle when it left the defendant's bottling plant and no other person could have or did insert it in the bottle?

The lack of cases on this particular question in Oregon is not reflected elsewhere.

As a preliminary statement to our consideration of this authority it should be mentioned generally that the question in issue has been treated by almost numberless decisions of the courts and almost as many text and law review writers. It has been analyzed as a matter of implied warranty and as a matter of negligence. We believe extended discussion of the many theories advanced for solution to be unwarranted and unnecessary. For those who desire a more extended discussion thereof we refer them to Harper and James, supra at § 28.11 et seq.; Prosser on Torts, 2d Ed., § 83 et seq.; 52 A.L.R.2d 117; and 60 W.Va.Law Rev. 110; 4 St. Louis University Law Journal 207; 30 Or. Law Rev. 387, to name only a few of the many extensive considerations. A particularly careful analysis of the entire question is presented in Products Liability and the Food Consumer by Reed Dickson, Little, Brown and Company, 1951.

Specifically, there is authority to support the view espoused by defendant. Jordan v. Coca Cola Bottling Co. of Utah, 117 Utah 578, 218 P.2d 660, 52 A.L.R.2d 108; Coca-Cola Bottling Works v. Sullivan, 178 Tenn. 405, 158 S.W.2d 721, 171 A.L.R. 1200. Other similar cases are cited by defendant and have been considered. These are the ones most frequently cited as leading cases in placing upon the plaintiff, in a case of this type, the burden of proving lack of tampering. These cases hold, and it is forcibly and ably contended by defendant here, that this lack of complete or exclusive control deprives the plaintiff of the right to rely upon an inference that the mishap occurred while the bottle was within the control of the defendant.

In these cases it is held that 'plaintiff failed to establish with sufficient certainty that foreign objects were in bottled beverages when they left the manufacturer and the evidence failed to establish that there had been no reasonable opportunity for tampering.' Jordan v. Coca Cola Bottling Co. of Utah, supra, 218 P.2d at page 665. In other words these cases conclude that when the bottled goods are stored on the retailer's premises in place or manner to enable another to open and recap a bottle without detection the burden is on the plaintiff to show that tampering did not occur. As stated in the dissenting opinion in the Jordan case this in effect is to 'deny recovery to practically every consumer.' This authority was considered, and cited, by Mr. Dickerson in his book on products liability, supra. After an exhaustive analysis of many, but not all, of the cases from the various states, however, he concludes:

'The tampering point has not proved difficult for most products, since canned goods and other goods in sealed containers generally speak for themselves. If the reported cases are a reliable index, the soft-drink bottle cap has been the only significant source of uncertainty. Even here it has apparently not caused real difficulty outside of Tennessee and several other states. ¹ Most courts seem satisfied with evidence that the bottle and contents had a normal appearance or, at most, with evidence showing the usual way in which the bottles are distributed and handled. ² The real burden of persuasion on this point seems to be on the defendant. ³ ' (The footnote references in the quote refer to numerous cases only some of which are cited in this opinion.)

We believe the greater weight of and better reasoned authority supports this conclusion. In such typical cases as Dr. Pepper Co. v. Brittain, 234 Ala. 548, 176 So. 286; Le Blanc v. Louisiana Coca Cola Bottling Co., 221 La. 919, 60 So.2d 873; Tafoya v. Las Cruces Coca-Cola Bottling Co., 59 N.Mex. 43, 278 P.2d 575, and Rutherford v. Huntington Coca-Cola Bottling Co., W.Va., 97 S.E.2d 803, the facts were similar to the instant case. It was held in each that the delivery to the plaintiff in the usual and normal course of distribution of a bottle...