Seven-up Bottling Co. v. Gretes, Record No. 2720.

• Decision Date: 06 December 1943
• Docket Number: Record No. 2720.
• Citation: 182 Va. 138
• Court: Virginia Supreme Court
• Parties: SEVEN-UP BOTTLING COMPANY, INC. v. STELLA GRETES.

Page 138

182 Va. 138

SEVEN-UP BOTTLING COMPANY, INC. v. STELLA GRETES.

Record No. 2720.

Supreme Court of Virginia, Richmond.

December 6, 1943.

Present, Campbell, C.J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.

1. NEGLIGENCE — Res Ipsa Loquitur — Basis of Doctrine. — The doctrine of res ipsa loquitur rests upon the assumption that the thing which causes the injury is under the exclusive management of the defendant, and the evidence of the true cause of the accident is accessible to the defendant and inaccessible to the person injured.

2. NEGLIGENCE — Res Ipsa Loquitur — Inapplicable When Evidence Is at Hand. — The doctrine of res ipsa loquitur is an evidential presumption sometimes resorted to in the absence of evidence, but it is not to be applied when evidence is at hand.

3. NEGLIGENCE — Res Ipsa Loquitur — Accident Which May Have Been Due to Cause for Which Defendant Not Responsible. — The doctrine of res ipsa loquitur does not apply in the case of an unexplained accident which may have been attributable to one of several causes, for some of which the defendant is not responsible.

4. FOOD — Liability of Manufacturer — Res Ipsa Loquitur — Case at Bar. — The instant case was an action to recover for injuries sustained by plaintiff because of the explosion of a bottle of soft drink. The bottle in question was one of several delivered by defendant to the store operated by plaintiff's mother. The bottle was placed in a cooler by plaintiff, and when plaintiff lifted the lid of the cooler two or three hours later, the bottle exploded, causing her injuries. Plaintiff contended that the doctrine of res ipsa loquitur applied. Plaintiff testified that she did not knock the bottles which she was placing in the cooler against any hard substance, nor against each other, nor against bottles which were already in the cooler. She further testified that defendant had no more to do with the bottles after they were delivered at the store. Defendant proved that its bottling plant was of the modern type, of standard construction and recent in its method of operation, that its way of selecting and inspecting its bottles was the same as that used by other standard manufacturers and bottlers of similar beverages, that the bottles were made by and obtained from glass companies of first repute and that the ingredients used in making the beverage were pure and wholesome. It was also in evidence that the bottle was not defective, that the beverage contained an inert gas which was non-explosive, that the bottle did not break because of any defect in it or its contents, and that the bottle bore marks of having been in contact with some hard surface.

Held: That the doctrine of res ipsa loquitur was inapplicable, since there was evidence explanatory of the accident and it may have been attributable to causes for which defendant was not responsible, and that no negligence had been shown against defendant.

Error to a judgment of the Circuit Court of the city of Norfolk. Hon. R. B. Spindle, Jr., judge, designate, presiding.

The opinion states the case.

Venable, Miller, Pilcher, Parsons & Kyle, for the plaintiff in error.

James G. Martin & Son, for the defendant in error.

BROWNING, J., delivered the opinion of the court.

The parties to this action will be referred to as they were related in the trial court and sometimes in their proper persons.

The plaintiff instituted an action at law against the defendants, Seven-Up Bottling Company, Inc., and James H. McNeil, the latter being the manager of the bottling company, for damages alleged to be due her on account of injuries sustained by the explosion of a bottle of Seven-Up under rather unusual circumstances. The action was by notice of motion for judgment.

The mother of the plaintiff operated a store in the city of Norfolk in which were sold soft drinks and beer. On July 1, 1940, around noon the bottling company, by order, delivered to the store a crate of bottles of Seven-Up, which was placed by the driver on a shelf of the store. About nine o'clock that night the plaintiff took several bottles of the Seven-Up from the crate, two bottles in each hand or two bottles in one hand and one in the other, and placed them in a cooler where there were bottles of beer as well. The cooler is operated by electricity and contains a temperature of approximately 28 degrees, at least that was the measured temperature in November of the same year. Between eleven and twelve o'clock that night a customer requested a bottle of beer of the plaintiff. She lifted the top of the cooler for the purpose of supplying it when an explosion occurred and she was struck in the eye by a piece of flying glass, which resulted in the loss of that member. It was afterwards discovered that a bottle of Seven-Up had burst. The broken pieces of glass were recovered, removing any doubt as to its identity.

The notice of motion alleged that the defendants were negligent in the selection, inspection and use of the bottle and contents, and in using a bottle which was weak and defective, filled with contents which were powerful and which were improper and dangerous. The theory of the plaintiff was that the doctrine of res ipsa loquitur applied and the case was tried in accordance with that idea. The court made it the basis of one of its instructions and modified another by its inclusion by inference.

There were two trials. In the first the jury found in favor of the defendant, James H. McNeil, and reported its disagreement as to the defendant, Seven-Up Bottling Company. In the second there was a verdict for the plaintiff against the bottling company for $6,000.00 which was confirmed by the judgment of the trial court.

The...