Kroger Co. v. Bowman

• Decision Date: 03 February 1967
• Citation: 411 S.W.2d 339
• Parties: The KROGER COMPANY, Appellant, v. Mrs. Lorene BOWMAN and Dr. Pepper Bottling Company of Mayfield, Appellees. DR. PEPPER BOTTLING COMPANY OF MAYFIELD, Appellant, v. Mrs. Lorene BOWMAN and the Kroger Company, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 339

411 S.W.2d 339

The KROGER COMPANY, Appellant, v. Mrs. Lorene BOWMAN and Dr. Pepper Bottling Company of

Mayfield, Appellees.

DR. PEPPER BOTTLING COMPANY OF MAYFIELD, Appellant, v. Mrs. Lorene BOWMAN and the Kroger Company, Appellees.

Court of Appeals of Kentucky.

Feb. 3, 1967.

George R. Effinger, Paducah, for The Kroger Co.

Farland Robbins, Mayfield, for Dr. Pepper Bottling Co. of Mayfield.

James G. Wheeler, Robert C. Manchester, Wheeler, Marshall & Manchester, Paducah, for Mrs. Lorene Bowman.

DAVIS, Commissioner.

Mrs. Lorene Bowman obtained verdict and judgment of $2,000 against Dr. Pepper Bottling Company (hereinafter Dr. Pepper) and The Kroger Company (hereinafter Kroger) for personal injuries she sustained when a bottle of Dr. Pepper fell from a six-pack paper carton as she attempted to remove it from a rack in Kroger's store. The trial court awarded Kroger indemnity against Dr. Pepper for any sum it should pay to Mrs. Bowman. The motions for appeal by Dr. Pepper and Kroger have been granted in separate appeals which are disposed of in this opinion.

The case was tried prior to our decision in Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441, wherein we adopted the rule of 'strict liability' in products liability cases, but the principles enunciated in Dealers Transport govern the controversy and render inapposite much of the arguments presented in able briefs.

Mrs. Bowman was shopping in Kroger's self-service store. She undertook to place a six-pack cardboard carton of Dr. Pepper into the shopping cart. A bottle of the beverage fell from the carton and broke on the floor; she sustained personal injuries from the flying glass. No complaint is made of the amount of the award, but both Dr. Pepper and Kroger insist that neither of them is liable for any amount.

The cardboard carton was a collapsible type, and is shown to have had a vertical split in one corner. No witness testified as to how or when the tear in the carton occurred. All litigants agree that the vertical tear was in the carton immediately after the accident. The carton is filed as an exhibit with the record on appeal; the vertical tear is a smooth one along the corner crease of the carton.

Dr. Pepper's employees delivered the merchandise to Kroger and attended to placing it upon the Kroger rack or counter. The cartons were used by Dr. Pepper as long as they appeared to be serviceable. Determination of their serviceability was made by Dr. Pepper's employees on an 'eyeinspection' basis. The record indicates that the carton in question was delivered to Kroger not later than August 26th, prior to the accident on September 6th, 1961. Kroger made no claim of any inspection by its employees of the carton at any time.

Mrs. Bowman testified that she did not observe anything abnormal about the carton as she lifted it from the rack by its handle. She explained that if the tear in the carton had been on the side away from her it would not have been visible to her anyway. The nature of the defect in the carton warrants an inference that its existence would not have been readily apparent to Mrs. Bowman even had the tear been on the side of the carton nearest her when she picked it up.

Dr. Pepper and Kroger insist that a directed verdict should have gone against Mrs. Bowman. In support of this contention they urge that the doctrine of res ipsa loquitur is not applicable, and without that doctrine there is a failure of proof on the part of Mrs. Bowman. While admitting that this case '* * * is not to be confused with the numerous bottle explosion cases * * *' appellants rely on those cases in support of their view that res ipsa loquitur is inapplicable.

Out attention has been directed to Loebig's Guardian v. Coca-Cola Bottling Co., 259 Ky. 124, 81 S.W.2d 910; Rowe v. Oscar Ewing Distributing Co., Ky., 357 S.W.2d 882, and several other authorities from this and other jurisdictions, in support of the proposition that res ipsa loquitur is inapplicable. We do not undertake a detailed analysis of the cited authorities because we feel that there was sufficient evidence to warrant submission of the case to the jury, for the reasons now to be set forth.

Starting from the 'strict liability' premise established in Dealers Transport, supra, we observe that liability is imposed upon Dr. Pepper if it sold the carton in a defective condition unreasonably dangerous to the ultimate user, and if the item was expected to and did reach the user or consumer without substantial change in the condition in which it was sold by Dr. Pepper. Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441, 446. Moreover, the liability exists even though Dr. Pepper has exercised all possible care in the preparation and sale of the product (assuming its original defective condition). Id., 402 S.W.2d at p. 447. It is apparent, therefore, that negligence is not the basis of 'strict liability.'

The res ipsa loquitur doctrine has evolved as a legal precept affording satisfactory evidence of negligence. As observed in Prosser, Torts, Sec. 39, p. 218 (3d. ed. 1964), in discussing the res ipsa doctrine:

'The statement of this doctrine most often quoted is that of Chief Justice Erle in 1865:

'There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such that in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

But, as noted, negligence is not the basis of 'strict liability.' If the purveyor of the product furnished it in a defective condition unreasonably dangerous to the ultimate user, the liability attaches without proof of negligence.

We turn then to examine the record with reference to evidence of the product's having been furnished in a defective condition within the 'strict liability' definition. It would not be doubted, we suppose, that liability would obtain had Mrs. Bowman picked up the carton at the Dr. Pepper plant, and sustained the injuries in the same manner. Instead, Dr. Pepper placed the carton in the Kroger store; it was not inspected by Kroger, nor is there any showing that it was tampered with by anyone from the time it was placed on the Kroger rack by Dr. Pepper. In our view the circumstances thus presented are ample to warrant the reasonable inference that the carton was in a defective condition when Dr. Pepper placed it in the Kroger store. In Bell & Koch, Inc., v. Stanley, Ky., 375 S.W.2d 696, 697, it was said:

'The narrow question before us is whether the nature and circumstances of the occurrence constituted substantial evidence of negligence on the part of the defendant. The answer must be in the affirmative if an inference of fault may reasonably be drawn. The facts under consideration need only warrant the inference, not compel it. See Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815.'

We think it is proper in the case before us to apply the same principle; not to determine whether the 'nature and circumstances of the occurrence constituted substantial evidence of negligence'--but whether the nature and circumstances of the occurrence presented substantial evidence that the carton was in a dangerously defective condition when delivered to Kroger by Dr. Pepper. In our judgment the facts in the record amply warranted submission to the jury of the issue as to whether the carton was in a dangerously defective condition when delivered to Kroger by Dr. Pepper.

The case was submitted under instructions which directed the jury: (a) To impose liability on Dr. Pepper if it found that the carton was defective when Dr. Pepper delivered it to Kroger, provided the jury further found negligence on Dr. Pepper's part in its failure to observe the defect, if any; or, (b) to impose liability on Kroger alone if the jury believed that the carton was not defective when delivered by Dr. Pepper, but became so in the store and Kroger negligently failed to learn of the defect; or (c) to impose liability upon Dr. Pepper and Kroger, jointly, if the jury believed that the carton was defective when Dr. Pepper delivered it (due to negligence of Dr. Pepper) and further believed that Kroger negligently failed to inspect and learn of the dangerous carton. It was under the latter instruction that the jury returned its verdict, imposing liability upon Dr. Pepper and Kroger. A contributory negligence instruction was given also.

The jury's verdict reflects its finding that the carton was defective when Dr. Pepper delivered it to Kroger, coupled with the jury's finding that Kroger failed to take proper precautions to guard against that defect after the carton had been delivered to it. The requirement for a finding of negligence was more favorable to Dr. Pepper and Kroger than warranted under the 'strict liability' doctrine. Our conclusion here comports with Allen v. Coca-Cola Bottling Co., Ky., 403 S.W.2d 20, 21, and Rogers v. Karem, Ky., 405 S.W.2d 741.

It was proper for the trial court to award Kroger indemnity against Dr. Pepper. Although Kroger was liable to Mrs. Bowman, it is not precluded from indemnity against Dr. Pepper. The principles of Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165, are governing here. Dr. Pepper furnished the defective carton; Kroger owed no duty to Dr. Pepper in the matter of seeing to it that the carton was safe, even though it did owe a duty to its own customer, Mrs. Bowman. So the failure of Kroger to protect Mrs. Bowman may not be used as a means of insulating Dr. Pepper from its primarly liability.

The judgment is affirmed.

OSBORNE, Judge (dissenting).

I dissent from the majority opinion in this case for reasons to be hereinafter set out and I further believe it was a mistake when this Court in the case...