MacRes v. Coca-Cola Bottling Co.

• Decision Date: 20 October 1939
• Docket Number: No. 57.,57.
• Citation: 290 Mich. 567,287 N.W. 922
• Parties: MACRES v. COCA-COLA BOTTLING CO., Inc.
• Court: Michigan Supreme Court

290 Mich. 567

287 N.W. 922

MACRES

v.COCA-COLA BOTTLING CO., Inc.

No. 57.

Supreme Court of Michigan.

Oct. 20, 1939.

Action by Mary Christine Macres, a minor, by her next friend, George Macres, against the Coca-Cola Bottling Company, Inc., to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Allan J. Campbell, judge.

Argued before the Entire Bench.

Knight & Panzer, of Detroit, for appellant.

Frank T. Hinks and Walter M. Nelson, both of Detroit, for appellee.

BUSHNELL, Justice.

Plaintiff was employed by her uncle as a waitress in his restaurant in Detroit. Bottled soft drinks, ready to be served to customers of the restaurant, were kept in a box refrigerator with a sliding top and packed in chopped or cracked ice. The owner of the restaurant testified that he had always bought his Coca-Cola from the defendant, with whom he had been doing business for twenty years; that on July 9, 1937, a supply of Coca-Cola was delivered between 11 and 12 a. m., and he put the bottles in the icebox himself about 2:30 p. m., and filled up the box with chopped ice. About an hour later, plaintiff went to the icebox to get a bottle of orangeade for a customer and, as she bent over the opened box, a bottle of Coca-Cola exploded. A portion of the bottle hit her in the head, leaving a scar on her face running into the eyebrow. The cap remained on the broken neck after the explosion, the other part of the bottle being still in the icebox. Plaintiff saw the broken bottle before it was taken away the next day by the same driver who made the delivery and testified that it was broken horizontally two inches below the cap. The broken bottle was not produced at the trial.

A customer testified that he heard the sound of the explosion and saw the cut on plaintiff's face, but he did not see the broken bottle. Plaintiff produced a soft drink manufacturer who testified as to the method generally used in charging bottled drinks with carbonic gas, CO2. The superintendent of defendant's company testified in detail as to the method actually used in charging bottled Coca-Cola by this defendant. A research engineer of the Owen Illinois Glass Company, from whom defendant purchased its bottles, told how they were manufactured and explained how bottles fracture under pressure.

The trial court submitted the claim for damages to the jury on both of plaintiff's theories, namely, implied warranty and negligence, charging the jury as to the first: ‘Now, in order to recover on this count it is essential that you be satisfied that the commodity itself is or was or ought to have been known to be dangerous in its very character. There are certain things like a steering gear and the wheels of an automobile, which if they are defectively constructed present a danger to the public, if they are not properly constructed or not properly made use of or prepared for public use and that is the theory on which the plaintiff seeks to recover, one of the theories.’

And as to the second as follows: ‘You are not at liberty to guess at the negligence but the plaintiff has submitted to you testimony which if you accept it, may lead you to the conclusion that there was an explosion here, something resulting from an internal pressure and if that was so, the next question to be answered is, was it due to some negligent act on the part of the bottler that this explosion occurred and if you answer that question in the affirmative, then you would find for the plaintiff on this count.’

The court added the following:

‘Now, as to the first, going back for a moment to the first count, the dangerous character of this particular commodity is something that I am leaving for your consideration. If it is inherently dangerous, then the vendor or seller, if the danger was of such a character that the vendor or seller must have known of that, then he could be held liable on this implied warranty of safety to the public. The law itself is not too clear and I am doing the best I can to explain it as I understand it from the cases that have been handed down. * * *

‘Many accidents happen, many injuries are received by people without anybody else's fault and if in your examination of all these facts and circumstances, you arrive at the conclusion that the defendant here used those reasonable precautions which are commonly used in a similar business and that there was nothing to apprize them of a situation such as this, so that they could not be asked to take added or extra precautions, then obviously they would be conducting themselves as reasonably prudent persons under the circumstances and there would not be any right of action and your verdict under those circumstances should be no cause of action.

‘The matter is relatively a simple one in one sense, although seems to be somewhat difficult to state and not too easy to understand.’

The jury returned a verdict for plaintiff in the sum of $590, and defendant appealed from the judgment entered thereon.

Appellant seeks reversal because of claimed error in submitting the case to the jury on either of plaintiff's theories of warranty, express or implied, or negligence, and that it was entitled to a directed verdict under the proofs. Appellant's brief says:

‘Certainly the doctrine of res ipsa loquitur would not apply in this type of case, particularly in view of the repeated rulings by our Court to that effect. It is well settled law in this country that the doctrine of res ipsa loquitur does not apply to this type of case.

‘For these reasons the Court should not have submitted it to the jury.’

The writer of the text of the negligence article in 45 C.J. says on page 1194: ‘In Michigan the presumption of negligence arising under the rule of res ipsa loquitur has not been recognized as such in the cases; on the contrary it is frequently stated in express terms that the rule has not been adopted in this state. This statement, however, in conformity with the rule as generally applied, is apparently, and in effect, but a repudiation of the doctrine as construed to raise a presumption of negligence from the mere occurrence of the injury, rather than an actual repudiation of the principles upon which the doctrine is based. For, notwithstanding the denial of the doctrine, those principles which in other jurisdictions are embraced within, and designated as, the rule of res ipsa loquitur are recognized and applied by the courts of this state, although only as rules of circumstantial evidence, so as to raise a presumption or permit an inference of negligence in cases where the circumstances involved are such as would otherwise be within the application of the rule.’

The Michigan rule has been recently discussed under the heading of ‘Negligence-Presumptive Rule of Negligence as Applied in Michigan’ in Michigan State Bar Journal, January, 1939, Vol. XVIII, No. 1, p. 36.

The most generally quoted statement of the Michigan rule is that made by Mr. Justice Fellows speaking for the court in Burghardt v. Detroit United Ry., 206 Mich. 545, 173 N.W. 360, 361, 5 A.L.R. 1333: ‘This court has not adopted the rule res ipsa loquitur. We have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that, where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts, at least a prima facie case is made.’ Citing Alpern v. Churchill, 53 Mich. 607, 19 N.W. 549, and other authorities.

This statement of the rule has been referred to in more than fifteen opinions of this court since the Burghardt case. It was recognized by the trial judge in his charge to the jury and is applicable to the facts presented in this record.

The authority in Michigan most nearly in point is O'Neill v. James, 138 Mich. 567, 101 N.W. 828, 829,68 L.R.A. 342, 110 Am.St.Rep. 321,5 Ann.Cas. 177. In that case plaintiff, a bartender, lost his eye as a result of the explosion of a bottle of champagne cider which he had taken out of an icebox and was holding in his hand before any force was applied to it. After a discussion of plaintiff's theory of negligence and the refusal of the trial judge to direct a verdict for the defendant, the court said: ‘We think, with reference to the question of negligence, the court was right in holding that, in view of the testimony upon this branch of the case, the issue should be submitted to the jury.’ But, as said in Smolenski v. Libby, McNeill & Libby, 280 Mich. 329, 273 N.W. 587, where there was no physical evidence of an explosion, there must be sufficient testimony to take the question of defendant's negligence out of the realm of conjecture. In the instant case there is such physical evidence.

This rule was applied in submitting the question of defendant's negligence to the jury in similar cases in Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762, 73 S.E. 1087; Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga.App. 43, 102 S.E. 542;Macon Coca-Cola Bottling Co. v. Crane, 55 Ga.App. 573, 190 S.E. 879;Torgesen v. Schultz, 192 N.Y. 156, 84 N.E. 956, 18 L.R.A.,N.S., 726, 127 Am.St.Rep. 894;Winfree v. Coca-Cola Bottling Works, 20 Tenn.App. 615, 103 S.W.2d 33;Colyar v. Little Rock Bottling Works, 114 Ark. 140, 169 S.W. 810;Auzenne v. Gulf Public Service Co., La.App., 181 So. 54.

Following the quotation given above from the O'Neill case there is a lengthy discussion as to whether or not plaintiff could recover from defendant, the bottler of the champagne cider, in the absence of privity between the parties. The court said as to this:

‘It will be observed that, where no contractual relations exist, the doctrine is recognized that there must be knowledge of the dangerous character of the thing sold, before defendant can be held liable, and this doctrine is...