Milligan v. Coca Cola Bottling Co. of Ogden

• Citation: 354 P.2d 580,11 Utah 2d 30
• Decision Date: 21 July 1960
• Docket Number: No. 9161,9161
• Parties: d 30 Daniel K. MILLIGAN, Plaintiff and Appellant, v. COCA COLA BOTTLING COMPANY OF OGDEN, a corporation, and Safeway Stores, Inc., a corporation, Defendants and Respondents.
• Court: Utah Supreme Court

Page 580

354 P.2d 580

11 Utah 2d 30

Daniel K. MILLIGAN, Plaintiff and Appellant, v. COCA COLA BOTTLING COMPANY OF OGDEN, a corporation, and Safeway Stores, Inc., a corporation, Defendants

and Respondents.

No. 9161.

Supreme Court of Utah.

July 21, 1960.

Rawlings, Wallace, Roberts & Black, Salt Lake City, for appellant.

Ray, Quinney & Nebeker, Salt Lake City, Young, Thatcher & Glasmann, Ogden, for respondents.

HENRIOD, Justice.

Appeal from a summary judgment against plaintiff who sued the bottler and also the retailer of Coca Cola, for damages allegedly suffered when he swallowed a paper clip which the bottle contained. Affirmed, with costs to defendants.

Plaintiff's complaint sought recovery on one or more of three theories: 1) under the res ipsa loquitur principle, 2) on an implied warranty and 3) for violation of the statutes on adulterated food.

As an incident to this litigation, and before pre-trial or trial, plaintiff's deposition was taken, and developed what we consider to be the pertinent facts: He had purchased two six-packs of 'Coke' from Safeway, and placed them in an unlocked fruit room connecting with his garage, which in turn was connected to his house. At times when he had his car parked in the garage, the overhead door was open. His married daughter lived next door and she and her husband visited back and forth with plaintiff. Children and teen-agers lived in the neighborhood. At a birthday party where invitees were free to go to the fruit room for a Coke, 11 of the bottles were used. The remaining bottle was left in the fruit room, when, about five weeks later, in drinking from it plaintiff swallowed the paper clip. Another clip was discovered in the bottle later.

At the pre-trial plaintiff chose to stand on his complaint. The Coca Cola people offered to demonstrate the great care with which their bottling was accomplished. Summary judgment followed, on motion of defendants. After such judgment and before notice of appeal there was no effort on the part of plaintiff to be relieved from the judgment, or to proffer anything else in the way of anticipatory proof, other than was before the court.

Counsel concedes that unless we reverse the Jordan case ¹ it would be controlling as to his res ipsa loquitur argument. He suggests such reversal, but we are not constrained to agree. Chief Justice Pratt pointed up the injustice that might eventuate by inferring negligence against a bottler in a case like this, where the container has a cap that easily can be removed and replaced without detection, and over which container the bottler has no further control in the hands of intermediaries including retailers, ultimate consumers, invitees to a party, or others who easily could have had access to the bottle. No matter how careful or free from responsibility the bottler may be, and though it be impossible to demonstrate those facts in a given case, failure to do so could result in liability without a plaintiff's presenting proof of anything, except by way of an inference.

Counsel for all parties seemed to concede at the oral argument that under the doctrine, liability might be predicated only if the adulteration of the beverage was accomplished while the container was in the control of the bottler. None suggested that if there were no such control at said time, or that there was loss of control thereafter, usually accepted perquisites in applying such doctrine would be present, i. e., that 1) the injurious circumstances must be of a kind that ordinarily does not happen, absent someone's negligence, and 2) must be caused by an instrument under the control and management of the defendant. ² To say that the bottler here had any control when the plaintiff purchased the bottle from Safeway, and thereafter, simply would be to blind oneself to the facts.

As to the breach of warranty and violation of the adulteration statute phases of plaintiff's assertions, there was nothing in the complaint but general allegations of breach and violation. There was nothing in plaintiff's deposition suggesting facts probative of such allegations. He admitted that what he had stated in his deposition was all the factual information he had. At the time of such deposition, his counsel was present and suggested no further information that might be forthcoming later. There was a proffer at pre-trial by the bottler of evidence adduceable to show due care in bottling. There was no suggestion that such evidence could or would be refuted. The decision to stand or fall on what was before the court at the pre-trial, where conceivably there may have been an excuseable failure to appear, without any request to vacate the summary judgment on account of such excuseable failure, or any further offer to do anything but submit the matter on the record then available, along with the other circumstances mentioned, makes it appear to us that there was no genuine issue of fact, absent application of the doctrine of res ipsa loquitur. Hence we can but conclude that the trial court did not err in entering its summary judgment.

CALLISTER, J., concurs.

McDONOUGH, J., concurs in the result.

WADE, Justice (dissenting in part).

I am of the opinion that defendant, Coca Cola Bottling Company, failed to show that plaintiff, had he been given a trial, could not produce prima facie proof which would reasonably support a finding that the paper clips were in the bottle of Coca Cola through negligence of such defendant. Although this judgment was entitled 'a nonsuit,' it can be sustained only on the showing necessary for a summary judgment. Such judgment requires a showing that 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' ¹

I think the circumstantial evidence shown in this case would clearly support a finding against the Coca Cola Bottling Company, for it seems much more probable that the paper clips got into the Coca Cola bottle through that company's negligent failure to use all the modern equipment and procedure to discover these paper clips in this bottle, than that some prankster placed the clips in the bottle either while it was at the grocery store or after it was in plaintiff's home. The following statement on that subject from the case of Crystal Coca-Cola Bottling Co. v. Cathey ² expresses my views on that question.

'* * * To decide that there was a tampering would require the jury to believe in this case that a person would go unobserved to the cooler behind the counter in a drugstore or the druggist or one of his employees would go to the cooler and place therein a bottle of Coca-Cola in which he had put a fly by removing and replacing the cap and this without being able to foretell who might be served that bottle or when it might be served. This, we submit, is too far-fetched for reasonable men to consider seriously. * * * The trial judge placed the question of whether res ipsa loquitur doctrine applied properly before the jury on circumstantial evidence which might well justify a finding by the jury that it did apply.'

See also the following quotation from Rutherford v. Huntington Coca-Cola Bottling Co. ³

'There is no evidence in this case from which the jury could conclude that it was more likely that some evilly disposed person took the cap off the bottle of Coca Cola, from which plaintiff later drank, inserted some small particles of glass therein, and carefully replaced the cap while the bottle sat near the vending machine, than that such procedure could have been effected after the bottles passed the final inspection at the defendant's plant, and before they were delivered to the Bordon Company. * * *'

So in this case I think it very improbable and only a remote possibility that someone, either prankster or otherwise, would go to the grocery store or plaintiff's home and remove the cap from this bottle and place the paper clips therein, then replace the cap without knowing by whom or when the contents of the bottle would be consumed. If, however, the paper clips were inserted in this bottle by a prankster it could have been done before the bottles left the possession or control of the Coca Cola Bottling Company. Further, if this bottle was opened to put the paper clips in and then closed, the fizz of the contents would thereby be destroyed and the cap would be loose. Plaintiff...