Rutherford v. Huntington Coca-Cola Bottling Co., COCA-COLA
| Decision Date | 11 April 1957 |
| Docket Number | No. 10839,COCA-COLA,10839 |
| Court | West Virginia Supreme Court |
| Parties | Lula RUTHERFORD v. HUNTINGTONBOTTLING CO. |
Syllabus by the Court
1. The decisions of this Court in Parr v. Coca-Cola Bottling Works, 121 W.Va. 314 , and Blevins v. Raleigh Coca-Cola Bottling Works, 121 W.Va. 427 , approved and followed.
2. Where plaintiff's action is founded on defendant's negligence, the burden of proof of negligence by a preponderance of the evidence never shifts to the defendant.
3. Where a plaintiff seeks to recovery for injuries allegedly sustained when she drank a bottle of coca-cola, bottled by the defendant, containing glass particles, under the rule of res ipsa loquitur, it is reversible error to instruct the jury to the effect that they should find for the plaintiff unless they believe that the defendant has overcome, by competent evidence, the inference of negligence.
4. The admission of prejudicial, irrelevant testimony is erroneous.
Jenkins & Jenkins, John E. Jenkins, John E. Jenkins, Jr., Huntington, for plaintiff in error.
No appearance for defendant in error.
In this action of trespass on the case, the plaintiff, Lula Rutherford, seeks to recover for lacerations, physical discomfort and mental anguish, allegedly sustained when she drank from a bottle of soft drink, bottled by the defendant, Huntington Coca-Cola Bottling Company, which bottle allegedly contained numerous small particles of glass. The case was tried to a jury, which returned a verdict in her favor in the amount of $1,500, and judgment was entered thereon, to which this Court granted a writ of error and supersedeas.
The plaintiff testified that: She was employed by Borden's Dairy Company; on July 29, 1954, she obtained a capped bottle of coca-cola from a vending machine, placed in a hallway of the dairy company, during a rest period; she uncapped the bottle, drank therefrom, and immediately detected foreign particles in her month; she removed such foreign particles with her hand and found them to be small bits of glass; her mouth was bleeding; she became ill about two hours latter; and thereafter she lost approximately three months work, being under a physician's care for most of that period. She is corroborated by two witnesses, who were present at the time, as to the drinking of the coca-cola, the blood on her mouth, and the particles of glass. Another witness in her behalf, Josephine Steffy, a laboratory technician, testified that plaintiff brought the bottle and particles to her, and that she determined them to be glass. She then notified the defendant of the incident and delivered the bottle, in which some coca-cola remained, and the glass particles to one of its officers. Neither the bottle nor the glass particles by which the plaintiff allegedly sustained injury was introduced in evidence. This witness also testified that: The vending machine was owned by the Borden Company, she was the custodian thereof, and had the key thereto; the machine contained both coca-cola and seven-up; deliveries were made by the coca-cola and seven-up drivers once weekly; the usual procedure was to purchase six cases of each soft drink, two of which were usually placed in the hallway next to the vending machine until she had an opportunity to put the bottles into the machine, and the remaining four were placed in a closet and locked up until needed; and the cases placed in the hallway were accessible to anyone who had occasion to be in the plant, the competing driver, and all employees of Borden. This witness also testified, over objection of the defendant, that she, two or three days subsequent to July 29, 1954, had obtained a bottle of coca-cola from the machine that contained particles of glass, which particles were introduced in evidence, and that thereafter, the defendant removed the remaining bottles of coca-cola from the machine. Plaintiff's witnesses also testified that the bottle from which plaintiff drank was not chipped or broken in so far as they could observe.
The plaintiff also introduced the testimony of two physicians as to plaintiff's complaints and mental state, which required six electric shock treatments, and her consequent inability to work. One, Dr. Hibbard, a psychiatrist, when asked whether plaintiff's nervousness could have been caused by drinking coca-cola with glass in it, and the shock therefrom, replied: 'I think it is possible, yes.' The other, Dr. Dennison, answered a similar question 'I think it could have, definitely.' The court subsequently instructed the jury to disregard Dr. Dennison's answer as too speculative.
At the conclusion of plaintiff's evidence, the defendant moved for a directed verdict on the grounds that no specific act of negligence had been proved, and that the doctrine of res ipsa loquitur was inapplicable as the evidence showed the defendant did not have exclusive control, which motion was overruled.
The defendant's evidence as to the processing of bottles of coca-cola was as follows: Empty bottles, before re-use, are inspected for large objects and external dirt; they are then placed upside down and pass over three jets of water under pressure of 30 to 35 pounds per square inch; they then pass through three individual tanks containing varying strengths of a caustic soda solution; then pass over more jets, rinsers, of a pressure of 50 to 75 pounds per square inch; thence by a human inspector who removes any bottles in which large objects still remain or have any other discernible imperfections; thence to the 'filler' and 'capper'; and thence through a Radio Corporation of America, referred to in the record, and hereinafter as R.C.A., electronic inspecting device to the place where they are cased. The sensitivity of the electronic inspecting device may be adjusted so fine as to reject bottles of a slightly different shade of color. No evidence was introduced as to the actual setting of the device, but both the plant superintendent and the service representative of R.C.A., who serviced the machine and set it, testified that the machine would reject a bottle of coca-cola which contained an eyelash. The defendant then introduced the testimony of several disinterested witnesses, all prominent citizens of Huntington, who had attended a special test, conducted by the defendant prior to the trial, in which particles of glass and other foreign materials were introduced into several different bottles of coca-cola, and these bottles, along with others, were run through the electronic inspecting device. These witnesses testified that each time one of the prepared bottles went through, it was rejected by the machine.
At the conclusion of all the evidence, the defendant again moved for a directed verdict, which was overruled. As hereinbefore mentioned, the jury returned a verdict for the plaintiff in the amount of $1,500. The defendant moved to set aside the verdict and grant a new trial, which motion was overruled, and judgment was entered thereon.
Errors assigned in this Court are as follows: (1) Permitting Dr. Hibbard to testify as to the possible cause of plaintiff's condition; (2) permitting the laboratory technician to testify as to her personal experience with a bottle of coca-cola different from the one purchased by plaintiff; (3) permitting the laboratory technician to testify as to defendant's action in removing the remaining bottles from the cooler sometime after July 29, 1954; (4) and (5) in giving Plaintiff's Instructions Nos. 1 & 2; (6) in overruling defendant's motion for a directed verdict at the conclusion of all the evidence; (7) in overruling defendant's motion to set aside the verdict and grant a new trial; and (8) in permitting Dr. Dennison to testify as to the relationship between drinking the coca-cola and plaintiff's subsequent illness.
The principal question presented by this record, to which one or more of the assignments of error pertains, is whether the res ipsa loquitir 'maxim', 'doctrine', or 'rule' applies.
Counsel for the plaintiff in error urges in argument and brief that two decisions of this Court, to which reference will hereinafter be made, may be distinguished upon the facts from the instant case, and, if not, that they should be overruled. Unfortunately, the defendant in error was not represented in this Court by counsel.
The expression 'res ipsa loquitur' was first used in an Anglo-Saxon appellate court by Judge Pollock in Byrne v. Boadle, 2 H. & C. 722, 159 Eng.Rep. 299, in 1863, although many centuries before Cicero used the phrase freely in the Roman Senate. In 1865 in Scott v. The London and St. Katherine's Docks Co., 3 H. & C. 596, 159 Eng.Rep. 665, the doctrine was thus defined: 'But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' Professor Wigmore gives these requisites for the application of the doctrine: (1) the instrumentality causing the injury must be of a type as not to cause injury in the course of ordinary use unless it was carelesslyconstructed, inspected, or used; (2) the defendant must have control of the instrumentality at the time of the injury; and (3) the plaintiff must not have contributed to his own injury. 9 Wigmore, Evidence, § 2509.
This Court apparently first applied the rule in Tompkins v. Kanawha Board, 21 W.Va. 224, decided in 1882, although the latin words are not mentioned in the opinion. Beginning with Snyder v. Wheeling Electrical Co., 43 W.Va. 661, 28 S.E. 733, 39 L.R.A. 499, this Court has on many occasions come to grips with cases allegedly involving the application of res ipsa loquitur. 13 M.J., Negligence, § 55; 14 Va. & W.Va....
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