Stephens v. Coca-Cola Bottling Co. of St. Louis, COCA-COLA

Decision Date18 July 1950
Docket NumberCOCA-COLA,No. 27879,27879
Citation232 S.W.2d 181
PartiesSTEPHENS v.BOTTLING CO. OF ST. LOUIS.
CourtMissouri Court of Appeals

Lashly, Lashly, Miller & Clifford and Oliver J. Miller, all of St. Louis, for appellant.

Hay & Flanagan and Vincent S. Moody, all of St. Louis, for respondent.

McCULLEN, Judge.

This action for damages was brought by respondent as plaintiff against appellant as defendant for personal injuries alleged to have been sustained by plaintiff as the result of negligence of defendant. A trial before the court and a jury resulted in a verdict in favor of plaintiff and against defendant in the sum of $3000. Defendant's motion for a new trial was overruled by the court upon condition that plaintiff remit $1500 of said judgment within ten days. Within the time allowed plaintiff remitted said sum and a new judgment was entered for plaintiff in the sum of $1500. Defendant duly appealed.

This is the second appeal in this case. On the first appeal this court affirmed the order of the trial court granting plaintiff a new trial. A rather full statement of the pleadings was set forth in our opinion on the first appeal. See Stephens v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 215 S.W.2d 50, 52. The trial from which this appeal arose was based upon the original pleadings. It is, therefore, unnecessary for us to set forth the pleadings here in detail. It is sufficient to say that plaintiff's petition alleged that on August 21, 1937, he was employed as a clerk at Tarzian Market in St. Louis, Missouri, and while performing his duties and handling a bottle of Coca-Cola it exploded as a direct result of the negligence of defendant; that said bottle of Coca-Cola had been manufactured bottled and distributed by defendant for sale to and use by the public; that the facts concerning the manufacturing and bottling of said Coca-Cola were and are peculiarly and exclusively within the knowledge of defendant and that said explosion would not have occurred if due care had been exercised by defendant; that as a direct and proximate result of said explosion plaintiff's hand was cut at the wrist, all to plaintiff's damage in the sum of $3000. The answer of defendant was a general denial and a plea that whatever injuries if any plaintiff received were due to his own negligence and carelessness.

It was stipulated at the trial that if the evidence showed that the case from which the bottle of Coca-Cola was taken was delivered to Tarzian Market by defendant, then defendant admits that the bottle of beverage in such case had been bottled by it.

Plaintiff testified that on August 21, 1937, he was employed as a grocery clerk for Tarzian Market, 3800 Olive Street in the City of St. Louis, Missouri; that as such clerk it was his duty to keep a beverage cooler filled with bottled beverages; that he did this by filling buckets with bottles of beverages from cases kept in the storeroom and that he would carry them into the grocery store proper and put them into the cooler which was an oblong box about six feet long and three to four and a half feet high with sliding doors on top; that he had observed that the cases of Coca-Cola were delivered to Tarzian Market by a Ford truck which had a sign on it reading 'Coca-Cola'; that an employee of the Coca-Cola company would wheel a two wheeled cart with cases of Coca-Cola into the storeroom and pile them up; that this occurred about three or four times each week; that so far as plaintiff knew no Coca-Cola was purchased from any other bottling company; that the cases of Coca-Cola remained as they were stacked until they were to be sold or until they had been emptied by employees; that about noon on August 21, 1937, he was filling the cooler with bottles of Coca-Cola and other bottled beverages and had approximately two-thirds of the bottles in the cooler. At this point plaintiff testified: 'I reached down for some more of them and I heard a big explosion, sort of like a fire-cracker. I jumped up and when I did my wrist was bleeding and blood was coming out sort of like a pump, in gushes. * * * Mr. Tarzian, the son of the man who owned the store, put a tourniquet around my arm up here to shut off the blood, and he taken me across the street to a Dr. Wilson to tend to the wound.'

Plaintiff further testified that Dr. Wilson picked some glass out of the wound and put three stitches in it; that he went back to the store and found that there was one broken bottle which was a Coca-Cola bottle; that it was the only one that was broken and it had a little blood on it; that the bottle was in a large scrub bucket which he had used to carry the bottles from the storeroom to the cooler; that in the storeroom he had filled this bucket, two bottles at a time, from the various cases stacked up there; that each bottle was sitting on its end in the bottom of the bucket; that at the time of the explosion he did not have any bottles in his hand; that he had just set two bottles down in the liquid of the cooler and had straightened up and had started to bend to pick up two more from the bucket on the floor when the explosion occurred; that the bottle broke in two parts--the neck with the cap on it was lying on the floor next to the bucket and the lower portion of the bottle was in the bucket; that he had carried this bucket of bottles from the storeroom and set it down easily on the floor next to the cooler; that the cut was on his left wrist at a point where the thumb joins the hand.

On cross examination plaintiff testified that the bucket in question was a little larger than an ordinary water bucket; that it would hold about twenty bottles; that he set the bucket on the floor and then picked out the number of bottles from the cases and put them in the bucket; that he had not piled them in the bucket, but had set them up each on its bottom; that he carried the bucket a distance of about six feet from the storeroom to the cooler by the bail with his right hand and set it down on the floor between himself and the cooler and reached over it into the cooler; that the bucket was about eighteen inches to two feet across; that the bottles were set down on the floor of the cooler, possibly eighteen inches down from the top; that he did not drop them in but reached down and set them on the floor; that he had not reached down to the bucket to take any more at the time of the explosion; that his hand was about two or two and a half feet from the top of the bucket directly over it when he heard the explosion and felt something hit his left hand; that he did not hit the bottle or disturb it in any way.

Plaintiff also testified that the wound resulting from the injury turned red and became inflamed and that it was necessary for him to go back to the doctor on several occasions; that it was necessary for him to were a splint on his finger because the leaders were cut and the fingers were drawing up; that the wound still bothers him upon occasion.

Dr. C. O. C. Max testified that he examined plaintiff's left wrist a short time before the trial and saw a scar on the left hand at the base of the thumb; that he gave plaintiff a grip test which showed that plaintiff had about a 30% loss of grip in the left hand based upon the theory that the grips of the right hand and left hand are equal although some people may have a stronger right hand grip than a left; that the loss of grip which plaintiff sustained was caused by an injury to the ulnar nerve followed by an infection in the wound and that plaintiff still had adhesions in the wound in question.

Floyd Hastings testified on behalf of plaintiff that he worked at Tarzian's Market with plaintiff; that he was present when the bottle of Coca-Cola exploded. In this connection the witness testified: 'I went to get some butter out of the meat cooler. I just turned around when the bottle exploded. Mr. Stephens grabbed his hand and he was bleeding where he had been cut. Of course, Mr. Leon Tarzian, Tarzian's son, wrapped the thing around his arm to keep the blood from running out. We sent him over to the doctor. I picked the bottle up, like he told me to take it in back, laid it on the sink, until he came back from the doctor. He came back. He thought maybe he could work but he sent him home. He put the bottle in the box, he taken the bottle home with him, and he went on home.'

Hastings further testified that he saw Stephens go to the back of the store to get the Coca-Cola and saw him come back with the bucket full of the bottled beverages; that he observed how Stephens handled the bucket and that he did not bump it against anything; that Stephens did not jostle the bottles but carried them carefully; that he heard the explosion and turned around and saw Stephens standing by the sink holding his hands and that he saw blood coming from Stephens' left wrist; that Leon Tarzian came over and tied a towel around Stephens' hand; that the witness picked up the broken bottle and saw that it was a Coco-Cola bottle.

Further testimony by Hastings was to the effect that the bottom of the broken Coca-Cola bottle was still in the scrub bucket after the explosion; that no other bottles were broken, but there were several bottles in the bucket. He identified a broken Coca-Cola bottle, plaintiff's exhibit 1, as the broken bottle in question. On cross examination the witness testified that he had seen the Coca-Cola man, a colored fellow, off the Coca-Cola truck deliver the cases of Coca-Cola into the back room of the market; that no customers had access to that back room, only plaintiff, the witness, and Mr. Tarzian; that the witness had filled the cooler some time before; that in the years he had worked there they had handled many cases of Coca-Cola.

William Ebert testified on behalf of defendant that he was assistant production manager for defendant; that the bottles used by defendant for bottling Coca-Cola are purchased from Owens-Illinois Glass Company, a reputable...

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7 cases
  • Ferrell v. Sikeston Coca-Cola Bottling Co.
    • United States
    • Missouri Court of Appeals
    • January 26, 1959
    ...evidence [Maybach case, supra; Kees v. Canada Dry Ginger Ale, Mo.App., 225 S.W.2d 169, 171(3); Stephens v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 232 S.W.2d 181, 187]; and, it is on the latter basis that instant plaintiff pleaded, tried and here presents her As to the evidence requir......
  • Copher v. Barbee, s. 8104
    • United States
    • Missouri Court of Appeals
    • October 1, 1962
    ...negligence by circumstantial evidence [Kees v. Canada Dry Ginger Ale, Mo.App., 225 S.W.2d 169, 171(3); Stephens v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 232 S.W.2d 181, 187-188; Ferrell, supra, 320 S.W.2d loc. cit. 294], when plaintiff's 'proof as to the explosion itself (is) couple......
  • Beuttenmuller v. Vess Bottling Co. of St. Louis
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    • Missouri Supreme Court
    • December 8, 1969
    ...as: Kees v. Canada Dry Ginger Ale, Inc., Mo.App., 225 S.W.2d 169 (prior appeal, 239 Mo.App. 1080, 199 S.W.2d 76); Stephens v. Coca-Cola Bottling Co., Mo.App., 232 S.W.2d 181. In Kees, there was an absence of any meaningful testimony concerning the status or handling of the bottle for a subs......
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