Latham v. Coca-Cola Bottling Co., 14564.

• Decision Date: 29 October 1943
• Docket Number: No. 14564.,14564.
• Citation: 175 S.W.2d 426
• Parties: LATHAM v. COCA-COLA BOTTLING CO.
• Court: Texas Court of Appeals

175 S.W.2d 426

LATHAM v. COCA-COLA BOTTLING CO.

No. 14564.

Court of Civil Appeals of Texas. Fort Worth.

October 29, 1943.

Rehearing Denied November 26, 1943.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Action by Mildred Latham against the Coca-Cola Bottling Company for injuries sustained from an exploding bottle. Judgment for defendant, and plaintiff appeals.

Affirmed.

D. L. Whitehurst, of Dallas, and Archie C. Price, of Grand Prairie, for appellant.

Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, for appellee.

BROWN, Justice.

This suit was brought by the appellant against Coca-Cola Bottling Company, appellee, on allegations that said defendant delivered a bottle of Coca-Cola to plaintiff's employer, and that same was in a defective condition when so delivered, and that, when she was handling the bottle, along with other bottles, placing same in a dry cooling refrigerator, just as she was laying the bottles down, with the bottoms or butts facing her, the bottle in her right hand exploded and threw several bits of glass in her right eye, causing her great pain and serious injury to that eye, and thereby injuring her left eye.

The theories of negligence charged to the defendant will be reflected in the special issues submitted to the jury, but we gather from the record that the plaintiff relies principally on the theory of an implied warranty, on the part of defendant, to furnish bottles that are not defective, but safe for handling by the public.

Defenses of contributory negligence, and of unavoidable accident, were pleaded by the defendant and are reflected in the said special issues.

Being tried to a jury, the issues determined are: (1) That a bottle of Coca-Cola, which was delivered by the defendant, exploded at the time and place in question, (2) the explosion injured the plaintiff, (3) the bottle was in a defective condition when it was delivered, (4) that the delivery of the defective bottle was not negligence, (5) proximate cause issue, not answered, (6) the defendant did not fail to use ordinary care in charging the bottle with gas, (7) proximate cause issue, not answered, (8) plaintiff's injuries were the result of an unavoidable accident, (9) the plaintiff did not permit the bottles to strike against each other, (12) she did not fail to use ordinary care in stacking the bottles on top of each other, (14) she did not fail to use ordinary care in failing to stand the bottles on their butt ends, (16) she did not handle the bottles roughly, (19) she suffered damages to the extent of $600.

Plaintiff moved for judgment on the verdict, and likewise, in the alternative, moved the trial court to disregard special issues Nos. 4, 6 and 8 and the jury's findings thereon and to...