Pittsburg Coca-Cola Bottling Works of Pittsburg v. Ponder

Citation443 S.W.2d 546
Decision Date04 June 1969
Docket NumberCOCA-COLA,No. B--1074,B--1074
PartiesPITTSBURGBOTTLING WORKS OF PITTSBURG, Texas, Petitioner, v. Mrs. Cuma PONDER, Respondent.
CourtSupreme Court of Texas

Jackson, Walker, Winstead, Cantwell & Miller, W. B. Patterson and Jack Pew, Jr., Dallas, for petitioner.

Jones, Jones & Baldwin, Doyle Curry, Marshall, Boyet Stevens, Daingerfield, for respondent.

CALVERT, Chief Justice.

Mrs. Cuma Ponder, respondent, brought suit against petitioner, Pittsburg Coca-Cola Bottling Works of Pittsburg, Texas, for personal injuries sustained as a result of an alleged explosion of a 'coke' bottle distributed by petitioner. Based upon answers by the jury to special issues, the trial court entered judgment for Mrs. Ponder in the amount of $11,500. The court of civil appeals affirmed. 430 S.W.2d 104. We reverse the judgments of the courts below and remand the cause to the trial court.

Respondent operated a cafe in Omaha, Texas. She received her supply of Coca Cola directly from petitioner. She kept the wooden cases in a small storeroom along with five other brands of soft drinks. She testified that on September 27, 1965, she was carrying three 'king size cokes' from the storeroom to the cooler behind the counter and, as she prepared to put them in the cooler, one of them exploded, injuring her left knee, leg, and ankle.

Respondent pleaded two distinct grounds of recovery, negligence under the doctrine of res ipsa loquitur, and strict liability. In response to special issues, the jury found that (1) the bottle in question was not reasonably fit for the purposes for which it was intended to be used; (2) this unfitness was a proximate cause of respondent's injuries; (3) the explosion of the bottle resulted from petitioner's negligence; and (4) this negligence was a proximate cause of respondent's injuries. Petitioner's first two points of error assert that there is in the record no evidence of probative value to support a recovery by respondent on either of her two theories. More specifically, petitioner argues that there is no evidence that the explosion was caused by a defect which existed in the bottle when it left the care, custody and control of petitioner. Evaluation of these points requires an understanding of applicable law and an analysis of the evidence.

Res ipsa loquitur is a rule of evidence which permits a jury to infer negligence, without proof of specific negligent conduct on the part of the defendant, if the accident is of a type which does not ordinarily occur in the absence of negligence and if the instrumentality inflicting the harm is within the exclusive control of the defendant. Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659 (1935); Washington v. M.K. & T. Ry. Co., 90 Tex. 314, 38 S.W. 764 (1897). This court has extended the res ipsa loquitur doctrine to exploding bottle cases, even in situations where the bottle has passed from the exclusive control of the bottler at the time of injury, provided the plaintiff proves 'that the bottle (1) was in no way 'accessible to extraneous harmful forces'; and (2) 'was carefully handled by plaintiff or any third person who may have moved or touched it." Hankins v. Coca Cola Bottling Co., 151 Tex. 303, 249 S.W.2d 1008 (1952); Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445 (1944). In Honea, in dealing with the quantum of proof required to discharge the plaintiff's burden in such cases, we quoted from Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436, as follows:

'It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it. * * * If such evidence is presented, the question becomes one for the trier of fact * * *, and, accordingly, the issue should be submitted to the jury under proper instructions.' See 183 S.W.2d 970.

See also Benkendorfer v. Garrett, 143 S.W.2d 1020, at 1023--1024 (Tex.Civ.App.--San Antonio, 1940, writ dism'd).

This court has not heretofore applied the rule of strict liability in exploding bottle cases. Indeed, our approach to use of the rule for imposing liability on sellers of products has been gradualistic and marked with caution. Some twenty-seven years ago, we adopted the rule as a means of fixing liability on manufacturers and packagers of food products for human consumption, Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942), and on retail purveyors thereof, Griggs Canning Co. v. Josey, 139 Tex. 623, 164 S.W.2d 835, 142 A.L.R. 1424 (1942); but a decade later, we questioned the wisdom of applying the rule to retailers of food products, canned or packaged by others, and we refused to apply it to wholesalers of such products. Bowman Biscuit Co. of Texas v. Hines, 151 Tex. 370, 251 S.W.2d 153 (1952). Then, in 1956, with the question squarely presented, we refused to grant a writ in Brown v. Howard, 285 S.W.2d 752 (Tex.Civ.App.--San Antonio, 1956, writ ref'd n.r.e.), and thus refused to apply the rule to a manufacturer of a spray causing harm when used on the plaintiff's cattle.

In 1967, we finally yielded to the irrefutable logic that the rule of strict liability is the only practical vehicle for protecting the public against harm so often encountered by innocent users and consumers of defective products. We abruptly changed direction. In McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967), we applied the rule against a distributor of a permanent wave lotion which proved harmful when applied to a woman's hair and scalp. In that case, we committed the court to the rule of strict liability expressed in Section 402A of The American Law Institute's Restatement of the Law of Torts (2d Ed.) as applicable to all persons engaged in the business of selling who sell a product in a defective condition which renders it unreasonably dangerous to a user or consumer or to his property. The necessary effect of McKisson was to disapprove prior contrary expressions of the law as announced in Bowman Biscuit Co. v. Hines, supra, and Brown v. Howard, supra. Thereafter, we expressly disapproved Brown v. Howard, and approved a holding of a court of civil appeals that a seller of a defective product is 'subject to strict liability for damage caused to the property of the ultimate consumer.' Franklin Serum Co. v. C. A. Hoover & Son, 418 S.W.2d 482 (Tex.Sup.1967). More recently, we have extended the rule to sellers of defective products which cause harm to nonusers and non-consumers. Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969). We perceive no sound reason why the rule should not be applied to bottlers.

The prime requirement for imposing liability on a seller under the rule of strict liability is proof by the plaintiff that he was injured because of a defective condition in the product when it left the hands of the particular seller. Jack Roach-Bissonet, Inc. v. Puskar, 417 S.W.2d 262, at 278 (Tex.Sup.1967). This is not to say that proof of the defect must be made by direct or opinion evidence; it usually can only be made by circumstantial evidence. As an example, see Darryl v. Ford Motor Co., supra.

While the theories of liability predicated upon res ipsa loquitur and strict liability are different, the problems of making proof confronting plaintiffs who seek to impose liability under the differing theories are quite similar. In an article in 23 Sw.L.J. 1, Dean Page Keeton University of Texas School of Law, states:

'When seeking a recovery on a theory that a product was defective when sold by the defendant, plaintiff has substantially the same proof problems for recovering on a theory of strict liability as he does on a theory of negligence. Under both theories plaintiff must establish to the satisfaction of a jury a defect at the time of sale. Once the proof is sufficient to get to the jury on the existence of a defect, there is generally a basis for an inference of negligence.'

Dean Keeton, in writing on exploding bottle cases, recognizes that two factors of importance in determining whether a plaintiff in a particular case has established a prima facie case are 'the length of time between surrender of possession by defendant and the breakage' and 'the number of persons who could have had access to the bottle during that time.' Keeton, Products Liability--Problems Pertaining to Proof of Negligence, 19 Sw.L.J. 26.39. The evidence on these two factors was obviously controlling in Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968 (1944), in which we held that the plaintiff's evidence made a prima facie case, and in Hankins v. Coca Cola Bottling Co., 151 Tex. 303, 249 S.W.2d 1008 (1952), in which we held that the plaintiff's evidence did not make a prima facie case. In the first case, there was evidence that the bottle which exploded had been out of the hands of the bottler for only some five or ten minutes, that it had undergone no change during the interval, and that the plaintiff was exercising some care in handling it. In the latter case, the bottle which exploded had been out of the hands of the bottler for at least twenty-four hours during which time it had been in a retail store where it was subject to almost constant handling by customers before being sold to the injured plaintiff. We held that the plaintiff's evidence 'did not satisfy the controlling requirement that he negative the possibility of an intermediate actor on the agency causing the injury, by a preponderance of the evidence, so as to allow the jury to decide whether negligence on the part of the Coca Cola...

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