Robey v. Richmond Coca-Cola Bottling Works, COCA-COLA
| Decision Date | 07 May 1951 |
| Docket Number | No. 3773,COCA-COLA,3773 |
| Citation | 64 S.E.2d 723,192 Va. 192 |
| Court | Virginia Supreme Court |
| Parties | STARR WHITLOW ROBEY v. RICHMONDBOTTLING WORKS, INCORPORATED. Record |
Allen, Allen, Allen & Allen, for the plaintiff in error.
John G. May, Jr., Robert Lewis Young and Ernest G. Garrett, Jr., for the defendants in error.
On July 6, 1948, Mrs. Starr Whitlow Robey, sometimes hereinafter referred to as the plaintiff, purchased six bottles of Coca-Cola from Hilton E. Burton and Catherine Burton, who conducted a retail grocery store under the name of Burton's Market, in the city of Richmond. At the time of the purchase the Coca-Cola was in the original pasteboard carton in which it had been sold and delivered to Burton's Market by Richmond Coca-Cola Bottling Works, Inc. The carton is designed to hold six bottles in an upright position and is equipped with a wire handle to facilitate its carriage by hand.
While Mrs. Robey was walking across the street and carrying the carton by the handle, the end or bottom of the carton broke, three bottles of Coca-Cola fell to the pavement and burst, and her foot was cut by flying glass. While her injuries were at first thought to be slight, complications developed and serious results followed.
To recover damages for her injuries Mrs. Robey instituted an action of trespass on the case against both Richmond Coca-Cola Bottling Works, Inc., and the proprietors of the retail store. The declaration charged the defendants both with a breach of their warranty of and representation as to the safety of the carton, and their negligence 'in the selection, inspection and use of the said pasteboard carton and in using a carton which was structurally weak, defective, improper, dangerous and incapable of containing the said bottles of Coca-Cola therein. ' At the trial, however, the plaintiff abandoned the first of the two alleged grounds of liability and relied solely upon her allegations of negligence.
Upon the conclusion of the plaintiff's evidence a motion to strike was sustained and a verdict and judgment for the defendants followed. The trial court took the view that there was no proof that the defendants, or any of them, had been guilty of negligence which was the proximate cause of the accident.
On the present writ of error the plaintiff does not press her claim against the Burtons, but she seeks a reversal of the judgment upon the asserted ground that the evidence was sufficient to warrant a finding by the jury that the Richmond Coca-Cola Bottling Works, Inc., was guilty of negligence which proximately caused her injury.
At the time of the incident Burton's Market maintained and operated what is commonly known as a self-service store, in which the customer selects his particular articles of merchandise, takes them to the cashier's counter, pays the purchase price therefor, and carries the articles from the store.
To further the merchandising of its product, the Richmond Coca-Cola Bottling Works, Inc., installed and maintained in the Burton store a wire stand in which the bottled drink was displayed for sale. The stand holds a number of cartons similar to that which has been described, each containing six bottles of the drink. An employee of the Bottling Works made daily deliveries of Coca-Cola to the Burton store in cases holding four cartons each. From these cases this employee took a sufficient number of cartons of bottles to replace those which had been sold or removed from the self-service wire stand. While the drink was placed in the self-service stand by the employee of the Bottling Works, the product was purchased by and became the property of the retail merchants by whom it was sold to their customers. The driver carried to defendant's plant empty bottles and cartons which customers had returned to the retailers.
On the day in question the plaintiff took a carton of bottles from the self-service stand and after having paid the cashier the purchase price of this and some other articles, left the store carrying the carton by the handle. While walking in a normal manner across the street from the store the accident occurred as related.
Mrs. Robey and another witness testified that the end of the bottom of the carton separated or came loose, but neither undertook to say why this occurred. Mrs. Robey said that at the time she removed the carton from the rack she 'noticed it wasn't a new carton' and had been previously used, but from her casual examination saw no damaged places or evidence of weakness in it.
Elwood Smith, an employee of Burton's Market, witnessed the accident and immediately went to Mrs. Robey's assistance. He found that the 'end of the bottom' of the carton had broken, thereby permitting the bottles to fall out into the street. He said that the carton was 'dirty,' 'worn,' and plainly showed that it had been previously used.
Smith delivered the broken carton to Mr. Burton who in turn delivered it to H. A. Lowry, the then supervisor for the Richmond Coca-Cola Bottling Works, Inc., who investigated the accident.
Upon being examined as to the custom of his company to 're-use the cartons,' Mr. Lowry said:
Called upon to explain what disposition had been made of the particular carton here involved, Mr. Lowry testified that it was preserved at the plant for a while and was thrown away when it was believed that the plaintiff's injuries were superficial and there was no reason to foresee the eventual litigation.
On the other hand, Mrs. Robey testified that some six months after the accident she telephoned W. C. Wells, the then manager of the Bottling Works, and told him that her injuries had become serious, that an operation upon her foot would be necessary, and asked what disposition had been made of the carton. She said Mr. Wells told her that it was still in the possession of the defendant company.
Mr. Wells did not recall this conversation and said that in fact he did not remember having ever seen the carton.
The contention of the plaintiff is that notwithstanding the lack of privity of contract between her and the defendant, it owed her the duty of furnishing a carton in which the bottles could be carried safely, and that this obligation included the duty of making a reasonable inspection of cartons before re-using them; that when she proved that the carton supplied to her was worn and damaged, it was for the jury to say whether the defendant had been negligent, that is, whether the defect was discoverable by the defendant in the exercise of ordinary care, or by reasonable inspection.
The defendant contends that the evidence on behalf of the plaintiff fails to make out a case against it for...
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