Payne v. Rome Coca-cola Bottling Co

• Decision Date: 06 March 1912
• Docket Number: (No. 3,888.)
• Citation: 73 S.E. 1087,10 Ga.App. 762
• Parties: PAYNE. v. ROME COCA-COLA BOTTLING CO.
• Court: Georgia Court of Appeals

73 S.E. 1087

10 Ga.App. 762

PAYNE.

v.ROME COCA-COLA BOTTLING CO.

(No. 3, 888.)

Court of Appeals of Georgia.

March 6, 1912.

(Syllabus by the Court.)

Explosives (§ 8^*)—Explosion of Bottle-Liability of Manufacturer.

Where an action is brought to recover damages for an injury caused from the explosion of a bottle, the contents of which were manufactured, bottled, and sold by the defendant as a harmless beverage, an inference of negligence on the part of the manufacturer arises, when it is shown that all the persons through whose hands the bottle had passed were free from fault, and that the condition of the bottle and its contents had not been changed since it left the defendant's possession.

[Ed. Note.—For other cases, see Explosives, Dec. Dig. § 8.*]

Error from City Court of Floyd County; John H. Reece, Judge.

Action by Sam Payne, by next friend, against the Rome Coca-Cola Bottling Company. Judgment for defendant, and plaintiff brings error. Reversed.

J. L. Tison, W. H. Trawick. and Maddox & Doyal, for plaintiff in error.

Lipscomb, Willingham & Wright, for defendant in error.

POTTLE, J. A bottle of Coca-Cola, manufactured and sold by the defendant exploded, and fragments of glass flew into the plaintiff's eye and destroyed the sight. The plaintiff alleges that the water in the bottle had been charged with carbonic acid gas, and that the explosion was due to the fact that the bottle was too highly charged with the gas by the defendant. A nonsuit was awarded and the plaintiff excepted.

The bottle of Coca-Cola was bought by the plaintiff's brother from Cook, a retail vender, who bought it from Barnett, to whom it was sold by the defendant. There was nothing in the appearance of the bottle to differentiate it from other bottles of Coca-Cola put on the market by the defendant. Neither the plaintiff nor his brother did anything to cause the explosion, nor had the bottle or its contents been changed in any way since the manufacturer sold it to Barnett. Coca-Cola, such as was contained in the bottle, was advertised and sold by the defendant as a refreshing and harmless beverage. A small cap, fastened tightly down, covered the mouth of the bottle. There was no direct evidence in reference to the manner in which the bottle was charged, nor as to the quantity of gas used.

If the plaintiff can recover at all, he can do so only upon an application of the maxim "res ipsa loquitur." The occurrence was unusual. Bottles filled with a harmless and refreshing beverage do not ordinarily explode. When they do, an inference of negli gence somewhere and in somebody may arise. There is no presumption of law, but merely an inference of fact. Negligence is not necessarily to be inferred merely from the act itself; but the tribunal designated by the law to decide the issues of fact may infer negligence from the happening of an event so unusual. So much may be gathered from previous decisions. Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S. E. 443; McDonnell v. Central Railway Co., 118 Ga. 86, 91, 44 S. E. 840; Palmer Brick Co. v. Chenall, 119 Ga. 837, 47 S. E. 329; Monahan v. National Realty Co., 4 Ga. App. 680, 62 S. E. 127; Cochrell v. Langley Mfg. Co., 5 Ga. App. 317, 63 S. E. 244; Sinkovitz v. Peters Land Co., 5 Ga. App. 788, 64 S. E. 93; Central Railway Co. v. Butler, 8 Ga. App. 243, 68 S. E. 956. In the Cochrell Case, supra, the Chief Judge called attention to the fact that the doctrine expressed in the maxim "res ipsa loquitur" was the foundation for the rule stated in section 5157 of the Civil Code of 1895 (Civil Code of 1910, § 5743), which is merely a codification of previous decisions of the Supreme Court.

But it is said that, before the doctrine can be applied, the act must speak not only of negligence, but of negligence on the part of the defendant. To this, of course, all are agreed. But the argument of the able and earnest counsel for the defendant is that the principle at the foundation of the maxim cannot be applied here, because the bottle was not in the possession or control of the defendant when it exploded; that, therefore, there can arise no inference that it was negligent; and that, if negligence is to be inferred, it must be ascribed to the vender, from whom the plaintiff's brother bought the bottle, or to the brother himself. The counsel relies upon language of Mr. Justice Lamar in the Chenall Case, supra, that, "prima facie, that want of due care should be referred to him under whose management and control the instrument of injury was found." Further along in the opinion the learned Justice said: "All that the plaintiff should be required to do in the first instance is to show that the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of, the thing doing the damage; that the accident was of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence. When he has shown this, he has cast a...