Nichols v. Nold, s. 38951 and 38959

• Decision Date: 06 June 1953
• Docket Number: Nos. 38951 and 38959,s. 38951 and 38959
• Parties: , 38 A.L.R.2d 887 NICHOLS et al. v. NOLD et al.
• Court: Kansas Supreme Court

Page 317

258 P.2d 317

174 Kan. 613, 38 A.L.R.2d 887

NICHOLS et al. v. NOLD et al.

Nos. 38951 and 38959.

Supreme Court of Kansas.

June 6, 1953.

Syllabus by the Court.

1. Plaintiff, a girl six years of age, was seriously injured by the explosion of a bottle of Pepsi-Cola which had been purchased by her mother from a local dealer. To recover damages for her injury she sued the manufacturer, a distributor, and the local dealer who sold the bottle of Pepsi-Cola. To establish negligence she relied upon the doctrine of res ipsa loquitur. Held, it was not improper to join the three parties as defendants.

2. In the accident mentioned in the preceding paragraph, plaintiff, in a second cause of action, relied upon negligent failure of an implied warranty. Held, the adding of the second cause of action did not render the petition demurrable.

C. E. Vance, of Garden City (A. M. Fleming, Bert J. Vance and C. R. Hope, Jr., all of Garden City, on the briefs), for the appellant, Ed E. Nold.

Geo. R. Gould, of Dodge City (George R. Gould, Jr., of Dodge City, on the briefs), for the appellant, Dave Elsey.

James W. Wallace, of Scott City (D. B. Lang, of Scott City, on the briefs), for the appellant, Phil D. Whiteman.

Payne H. Ratner, of Wichita (Ora D. McClellan, Louise Mattox, Payne H. Ratner, Jr., Gerald L. Michaud, Russell Cranmer, Dale B. Stinson, Jr., and Starr Calvert, Jr., all of Wichita, on the briefs), for the appellee.

HARVEY, Chief Justice.

This was an action for damages for personal injuries alleged to have resulted from the negligence of defendants. The defendants have appealed from orders of the court overruling their respective demurrers to plaintiff's third amended petition.

The petition in question may be summarized as follows: The plaintiff and her mother, as next friend, reside in Scott City. The defendant, Ed E. Nold, resides in Dodge City, and under the name of the Pepsi-Cola Bottling Company is in the business of manufacturing and selling various kinds of bottled beverages, including 'Pepsi-Cola,' which is manufactured and bottled by him at his plant in Dodge City. The bottles containing said beverages are charged with carbon dioxide or carbonic acid gas. The Pepsi-Cola is commonly known and referred to as a soft drink and is advertised and held forth to the public by defendant under the trade marke 'Pepsi-Cola' as a refreshing, sparkling and enjoyable beverage, which is sold and delivered by said defendants either individually or through distributing agents to various cafes, restaurants, lunch stands, grocery stores and private homes throughout the cities of Dodge City, Garden City, Scott City and the surrounding towns and territory; that the defendant, Dave Elsey, doing business as the Mission-Orange Bottling Company of Garden City handles, transports and distributes quantities of Pepsi-Cola products in the above mentioned territory and has acquired from the defendant Nold quantities of bottles of Pepsi-Cola for distribution throughout the territory mentioned and has and does handle, transport and distribute the same to the defendant, Phil D. Whiteman, doing business as Phil's Market at Scott City; that the defendant Whiteman receives, stores, handles, displays, offers for sale and sells to ultimate consumers; that on May 24, 1951, Whiteman sold to plaintiff's mother, who paid the necessary consideration therefor, some bottles of Pepsi-Cola which she took to her home; that thereafter, on the same day, plaintiff, who was going in an automobile to stay all night with a neighbor girl, took two of the bottles so purchased, and as she entered the automobile laid them on a quilt covering the front seat, and as she was bending over the bottles one of the bottles of Pepsi-Cola exploded in plaintiff's face, with the result that a particle or particles of glass from the exploded bottle struck and lacerated her nose and entered and punctured her left eyeball. Plaintiff alleged that at all times material, from the time the bottle of Pepsi-Cola was removed from Phil's Market, where it was sold to her by defendant Whiteman, until the bottle exploded in her face, it had been handled carefully, and that the explosion of the bottle of Pepsi-Cola was not caused by or due to any fault, negligence or improper handling of the same on the part of plaintiff. It was further alleged:

'* * * said bottle would not have exploded if due care had been used by defendants; all the facts and circumstances of and concerning the manufacture of said Pepsi-Cola, the bottle in which same was contained, and the method of bottling and distributing same, are peculiarly and exclusively within the knowledge of the defendants, and not within the knowledge of the plaintiff.'

It was further alleged (Paragraph 7):

'Plaintiff alleges that at all times material herein, the bottle of Pepsi-Cola which exploded in this plaintiff's face was solely and exclusively within the successive possession and control of each and all of the defendants, during its manufacture, bottling, inspection, handling, storage, transportation, distribution, sale or user and during the time in which the negligent acts of the defendants occurred.

'Plaintiff does not know, and therefore, does not attempt to allege or describe specific acts of negligence of which the defendants may have been guilty, and that may have been the proximate cause of the injuries to the plaintiff herein described; but, the plaintiff states and alleges that the explosion of the aforedescribed bottle of Pepsi-Cola with the resulting injury to the plaintiff, was an occurrence which would not have taken place except for some act or acts of negligence of the defendants in the manufacture, bottling, inspection, handling, storage, transportation, distribution, sale or user thereof. Plaintiff alleges that the explosion of said bottle of Pepsi-Cola and the resulting injuries to the plaintiff, were the direct result of some act or acts of negligence on the part of the defendants while in the successive exclusive possession and control of the manufacture, bottling, inspection, handling, storage, transportation, distribution, sale, or user of the said bottle of Pepsi-Cola.'

The remainder of the petition was devoted to a description of plaintiff's injuries and treatment and the prayer for relief.

There was a second cause of action in which plaintiff made all of the allegations of her first cause of action, except paragraph 7, a part by reference, and further alleged:

'Plaintiff further alleges that in manufacturing, handling, distributing and selling the aforedescribed bottle of Pepsi-Cola, the defendants and each of them impliedly warranted to the public of which this plaintiff was an ultimate consumer, the article so manufactured, distributed, handled, and sold was fit and safe for human consumption, and was so manufactured, bottled, handled, and sold in such a manner as not to be inherently or imminently dangerous. The plaintiff relied upon said warranty. The explosion of said bottle of Pepsi-Cola with resulting injuries and damages to the plaintiff was the proximate result of the negligent breach of said warranty by all the defendants in their manufacture, bottling, distribution, handling and selling of said article.'

Counsel for the respective defendants in their briefs in this court present as the principal question for our determination the contention that so far as the action is predicated upon the doctrine of res ipsa loquitur it cannot be applied because there are three defendants; that the doctrine does not lie where there are plural defendants. The point is not well taken. It is true the doctrine is applied in many cases where there is but one defendant, and the rule of its application requires that he be in exclusive possession or control of the thing which is alleged to cause the injury. But the rule is not limited to that. In 45 C.J. 1216 it is said:

'According to some authorities, in order to invoke the doctrine, it must appear that the injuring agency was under the control or management of defendant at the time of the accident. However, it has been held that there is nothing in the reason for the rule or the principles upon which it is founded to support the contention that its application is so limited.' Citing and quoting from Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866, as follows:

'The 'control' referred to in the statements and definitions of the doctrine of res ipsa loquitur is not necessarily control of the injurious agency at the time of the negligent act which caused the injury.'

This was a case of plural defendants. Apparently plaintiff recovered a judgment against all of them. The manufacturer of the beverage alone appealed and contended the doctrine of res ipsa loquitur did not apply to it for the reason that it was not in control at the time of the injury. This contention was denied and the judgment was affirmed.

In 65 C.J.S. Negligence, § 220, p. 1014, it is said:

'However, the doctrine may be availed of as against plural defendants who were, under the circumstances involved, joint tort-feasors.'

In Loch v. Confair, Appellant, 372 Pa. 212, 93 A.2d 451, 453, decided January 5, 1953, the facts were plaintiff and his wife were shopping in an A. & P. super-market; that when the husband was picking up two bottles of ginger ale, one in each hand, from the bottom shelf of a soft drink display, the bottle in his right hand burst and a piece of glass struck and cut the wife, resulting in a serious injury. Suit for damages was brought against the A. & P. Company and the Confair's Beverage Company, which had bottled the ale. The trial court entered a nonsuit against the A. & P. Company and gave a binding instruction to the jury to find for the beverage company. The court en banc took off the nonsuit and awarded plaintiff a new trial as to the beverage company, from which it appealed, contending that the doctrine of res ipsa loquitur was not...