Robertson v. Coca Cola Bottling Co. of Walla Walla, Wash.

• Decision Date: 13 August 1952
• Citation: 195 Or. 668,247 P.2d 217
• Parties: ROBERTSON v. COCA COLA BOTTLING CO. OF WALLA WALLA, WASH.
• Court: Oregon Supreme Court

Page 217

247 P.2d 217

195 Or. 668

ROBERTSON v. COCA COLA BOTTLING CO. OF WALLA WALLA, WASH.

Supreme Court of Oregon.

Argued and Submitted at Pendleton May 6, 1952.

Decided Aug. 13, 1952.

S. H. Burleigh, of La Grande, argued the cause for appellant. With him on the brief was James Arthur Powers, of Portland.

Charles R. Cater, of La Grande, argued the cause for respondent. With him on the brief were Leland F. Hess and Clayton Hess, of Portland.

Before BRAND, C. J., and HAY, LATOURETTE, WARNER, and TOOZE, JJ.

BRAND, Chief Justice.

This is an action for damages brought by the plaintiff, an employee of a hotel company against the Coca Cola Bottling Co., on account of personal injuries caused by the explosion of a glass Coca Cola bottle. The verdict was for the defendant, but thereafter, the court upon motion of the plaintiff, set aside the judgment and granted a new trial. The defendant appeals. The allegations of the complaint may be briefly summarized as follows:

The hotel company was purchasing under contract from the defendant a Vendo-83 coin control cooler for Coca Cola, No. F-9505 and had also purchased a number of bottles of Coca Cola to be vended from said machine. The duty of the plaintiff was to keep a supply of Coca Cola in the machine. The defendant was engaged in the business of bottling and selling Coca Cola in glass bottles 'highly charged with carbonic acid gas or carbon dioxide.' The plaintiff, while pursuing her duty, opened the vending machine for the purpose of filling it, when one of the bottles in the machine 'without having been touched by the plaintiff exploded', propelling the jagged top of the bottle at the plaintiff, with the result that her face was cut and permanently scarred. The defendant knew, or should have known, 'that any defect in bottles or increase in the pressure under which said bottles were filled would make said bottles likely to explode and dangerous to those persons who might come into proximity therewith.' The defendant was negligent in its duty to the plaintiff:

'* * * by selling a bottle of said beverage which, on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous as aforesaid and likely to explode and to cause injury to any person handling it or being near it; that said dangerous defect was latent, was not known to the plaintiff, and was known or by the exercise of reasonable prudence and care on its part should have been known to the defendant.'

The complaint continues by stating that the plaintiff cannot more specifically allege the negligent acts of the defendant which are peculiarly within its knowledge and that the plaintiff:

'* * * will not be confined to the specific acts of negligence charged but will rely on the general allegations of explosion and defectiveness and overcharge of said bottle of Coca Cola with carbon dioxide or carbonic acid gas or other substance which is and was highly explosive.'

For the purposes of this case, the answer is a general denial.

The order for a new trial recites in general terms that error was committed materially affecting the rights of the plaintiff. Under our decisions, if that order ought to be supported on any of the grounds specified in the motion therefor, it should be sustained regardless of the reason, or absence of reason, given by the trial court in the order. Johnson v. Updegrave, 186 Or. 196, 206 P.2d 91; Zeek v. Bicknell, 159 Or. 167, 78 P.2d 620. In considering whether the court erred in granting a new trial, all intendments are in favor of the order of the trial judge. Arthur v. Parish, 150 Or. 582, 47 P.2d 682. The order granting a new trial was made more than 30 days after entry of judgment and was based upon motion of the plaintiff. Consequently, the trial court was controlled by O.C.L.A., § 5-804:

'In all cases of motion for a new trial, the grounds thereof shall be plainly specified, and no cause of new trial not so stated, shall be considered or regarded by the court. * * *'

Our duty upon appeal is therefore to determine whether the trial court committed error in any particular specified in the motion for a new trial. The motion for a new trial is based upon:

'Prejudicial errors of law occurring at the trial and excepted to by the plaintiff in the following particulars:

'(a) Admission of the testimony of Mr. Williams with reference to the strength, testing of, and ability of Coca Cola bottles to withstand thermal shock. Said testimony appearing at the time of trial to be entirely hearsay in that the said Williams admitted from the stand that he knew nothing of the subject on which he testified except as was learned from a report with reference to explosions of Coca Cola bottles and that by reason thereof the plaintiff was deprived of the right of cross-examination.

'(b) Denial of plaintiff's motion to strike from the record and instruct the jury to disregard Williams' testimony with reference to the aforesaid matters upon the ground that the same was hearsay and that by reason thereof the plaintiff was deprived of the right of cross-examination.

'(c) Admission of the testimony of Williams and Fouts that the method of inspection used by the defendant company was the same as that used by bottlers of Coca Cola generally.

'(d) Admission of testimony of Williams that he had travelled all over the United States and the methods of inspection used by them were universal.

'(e) Admission of testimony of Lust and Williams that this was the first time they had ever heard of a bottle of Coca Cola exploding and the further admission of testimony that this was the first claim ever filed against the defendant company.

'(f) Modification of the rule of res ipsa loquitur by the court's insertion in its instruction of the words 'at your option' and inference may arise although no formal exception was taken.'

The question raised by the first assignment of error is whether the trial court erred in admitting the testimony of witness Williams, the defendant and appellant, contending that no error was committed in that respect. The witness was vice president and general manager of the defendant corporation. He had been connected with the Coca Cola company for 24 years and had visited practically every Coca Cola bottling company in the United States. He had also visited companies which manufactured the bottles. He testified:

'Q. And in your work have you made a study of the bottles, and their structure, and breaking strength? A. Not particularly. I watched them make them. I know some of the pressures they are subjected to and what they will stand.

'Q. You have read articles on the different * * * A. (Interrupting) Yes.'

This is substantially the extent of his preliminary qualification as an expert. He then testified:

'Q. (Mr. Burleigh) You are familiar with other beverage bottles in weight and construction, like 7-Up and so on? A. Yes.

'Q. Of the beverage bottles, how does the Coca Cola bottle rank in strength and weight with the others?'

A general objection was interposed and overruled. The witness answered:

'Well, other beverage bottles, in general run as heavy--not as strong, as Coca Cola bottles.

'Q. I believe you said it is the heaviest bottle? O. It is the strongest bottle in the beverage business.'

The interrogation continued:

'Q. Do you know the thickness of the glass in a Coca Cola bottle? A. I have it here.

'Q. You have figures showing it? A. Yes.

'Q. Will you give us the thickness of the glass?'

Objection was made that the witness was not testifying from his own knowledge and that plaintiff was attempting to introduce hearsay. The witness then testified that he had in his possession 'a paper showing the dimensions, thickness of glass, in Coca Cola bottles, and the pressure in the bottles at different temperatures, and tests on the pressure necessary to break the bottles.' The paper was not prepared for the defendant company. It was prepared by Dr. H. E. Fulcher of Davidson College upon experiments and physical tests of Coca Cola bottles. The former objection was renewed; 'This is an attempt to produce a witness we don't have a right to face,' etc.

'Q. (The Court) Is that circulated through the Coca Cola plants and Coca Cola trade, and available * * * A. (Interrupting) Yes.

'Q. (The Court) And recognized as an authoritative source of information on the contents * * *?'

An objection was interposed and overruled, but the question propounded by the court as to whether the document was recognized as an authoritative source of information was never answered. In his written opinion on the motion for a new trial the trial judge states:

'There is no question in the Court's mind but that the Court was under the impression that the witness had answered the second question in the affirmative. The record however, shows that he did not answer; and right at that instant counsel for the plaintiff interposed an objection. (See p. 6 hereof). But actually, as the record stands, there is no evidence that this treatise by Professor Fulcher of Davidson College is a trustworthy authority on the subject. No other qualifying questions were asked. The treatise writer must, like any other witness, be shown beforehand to be properly qualified. In Wigmore, 3d. Ed. Vol. 6, Sec. 1694, pp. 8-9, the following statement is made:

"The treatise-writer must, like every other witness, be shown beforehand to be properly qualified to make statements upon the subject in hand. This will require, as in other Hearsay exceptions, another witness who will testify to these qualifications,--which means here the summoning of any one in the profession, art, or trade of the writer and ascertaining from him the writer's standing as an authority. This removes the danger of an ignorant use of statements by writers of no standing; but it is merely the application of the general principle as to testimonial qualifications.'

'The Court was in error in admitting this testimony. There is no question in the...