Stephens v. Coca-Cola Bottling Co. of St. Louis

• Decision Date: 16 November 1948
• Docket Number: No. 27430.,27430.
• Citation: 215 S.W.2d 50
• Parties: STEPHENS v. COCA-COLA BOTTLING CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

215 S.W.2d 50

STEPHENS v. COCA-COLA BOTTLING CO. OF ST. LOUIS.

No. 27430.

St. Louis Court of Appeals. Missouri.

November 16, 1948.

"Not to be reported in State Reports."

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

Action by Kenneth Stephens against the Coca-Cola Bottling Company of St. Louis, a corporation, for personal injuries sustained as the result of an explosion of a Coca-Cola bottle. Verdict for defendant, and from an order granting plaintiff's motion for a new trial, defendant appeals.

Affirmed, and cause remanded for a new trial.

Lashly, Lashly, Miller & Clifford, of St. Louis, for appellant.

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

McCULLEN, Presiding Judge.

This is an action for damages brought by Kenneth Stephens, as plaintiff, against Coco-Cola Bottling Company of St. Louis, 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 for defendant. In due time plaintiff filed a motion for a new trial, which was sustained by the court. From the order granting a new trial defendant appealed.

Plaintiff's petition alleged that on August 21, 1937, he was employed as a clerk at the Tarzian Market in the City of St. Louis and that while performing the duties of his employment he was handling a bottle of coco-cola which had shortly prior there-to been bottled by defendant for sale to and use by the public, and sold and delivered to the owner of said market; that said bottle exploded as a direct and proximate result of the negligence of defendant, and that pieces of glass therefrom, driven by the violence of the explosion, flew and struck plaintiff's left hand and wrist with great force, inflicting on plaintiff painful and permanent injuries; that defendant manufactured the contents of said bottle and sealed said bottle at its plant in the City of St. Louis, and at all times had complete and exclusive control thereof and its contents until defendant sold and delivered the same to the owner of said market as a dealer for the purpose of resale to his customers; that said bottle of coca-cola was properly and carefully handled by the owner of said market and his employees, and by plaintiff, and all persons into whose hands it came after leaving the possession of defendant; that said coca-cola was charged with carbon dioxide or carbonic acid gas which exerts an exploding pressure upon the bottle in which it is confined; that the bursting of said bottle of coca-cola would not have occurred if due care had been used by defendant and that all facts and circumstances concerning the manufacture of said bottle of coca-cola were peculiarly and exclusively within the knowledge of defendant and not within the knowledge of plaintiff.

Plaintiff's petition then set forth the nature and extent of his injuries, and prayed damages 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.

At the trial it was stipulated by counsel for the parties that defendant bottled the bottle of coca-cola that exploded and caused the injuries to plaintiff and delivered the same to the Tarzian Market in St. Louis in a case with twenty-three other bottles.

Plaintiff testified that on August 21, 1937, he was employed by the Tarzian Market as a grocery clerk and that part of his duties were to keep an icebox, also called cooler, located at the front of the store, filled with coca-cola and other bottled beverages; that such bottles of beverage were stacked up in a wareroom at the back of the store; that on the date in question he was refilling the icebox and had a bucket of bottled beverages standing on the floor; that he had taken the bottles of beverage from various cases in the wareroom, standing them up in the bucket, and had carried the bucket out to the icebox where he placed it on the floor next to the icebox; that while he was standing there, about two feet away from the box, a coca-cola bottle in the bucket exploded and a piece of glass struck him on the left wrist and made a gash on his wrist; that all the other bottles in the bucket were intact — only one bottle was broken, and that was the coca-cola bottle; that there were ten or fifteen bottles in the bucket at the time; that he had placed them in the bucket two at a time, and then picked up the bucket and carried it to the icebox; that he did not hit it against anything; did not drop it; handled the bottles and set them upright in the bucket, each bottle standing upright on its own bottom, and that he did not pile them one on top of the other; that the bottle which exploded had just been standing in the bucket while he put the others in the cooler; that he had not picked it up, had not struck it nor dropped it, nor disturbed it in any way; that it just flew up on its own accord; that it was hot weather at the time and he kept the cooler filled with bottles.

Plaintiff further testified that after defendant placed the coca-cola cases in the back room, no one touched them until he got bottles from the cases to put in the cooler, and that on the morning in question he handled all the bottles and the bucket carefully and did not bump any of the bottles or the bucket.

Floyd Hastings testified for plaintiff that he was a clerk at the Tarzian store and on the morning in question was taking butter out of the display refrigerator where meats, butter and like products were kept; that he had just got some butter and turned around when the explosion started and he saw plaintiff jump, and that plaintiff's hand was bleeding; that he helped plaintiff to the doctor and after he came back he looked at the wooden bucket and found a few bottles in there and also the broken bottle, and found the upper part of the bottle on the floor outside the bucket. The upper part of the broken bottle was described as a sliver of glass with the coca-cola cap on it.

Dr. C. O. C. Max testified for plaintiff that his examination showed that plaintiff had adhesions of the flexor tendons in the left wrist and a neuritis in the branches of the ulnar nerve and ulnar nerve proper, and that consequent loss of grip in the left hand was seventy-five per cent, and that the condition was permanent.

Willliam Ebert testified on behalf of defendant that he was Assistant Production Manager for defendant, having been with defendant for twenty-two years and that he was familiar with every phase of the work of bottling the beverage produced by defendant. The witness gave a lengthy and detailed description of the various machines and processes used by defendant in the manufacture and bottling of the beverage called coca-cola showing the care with which defendant carried on its business of producing, bottling and distributing the beverage called coca-cola. He testified that never in his experience of twenty-one years had he known of a bottle of coca-cola exploding on account of internal pressure created through the company's process, excluding the factor of the bottle being struck against another or with other objects. He stated that no bottle of coca-cola had ever been known to explode from internal pressure while standing quietly; that the defendant company had long series of tests made at laboratories at the various universities in the United States and that the witness had never heard of any bottle of coca-cola exploding under the circumstances related by plaintiff.

Dr. Oscar G. Fryer, Professor of Physics at Drury College, Springfield, Missouri, testified on behalf of defendant that he had made many tests of bottles, both filled and empty, for the defendant company in 1939, which included 1936 and 1937 bottles. This witness gave a carefully detailed description of the nature of the various tests of pressures and temperatures made by him and stated that he had never seen a bottle of coca-cola explode while quietly standing; that this couldn't occur with carbon dioxide gas and syrup water such as coca-cola; that in beverages containing yeast the pressure could build up if fermentation continues after the bottle is capped, but that there is no fermentation in coca-cola; that the gas therein is dormant from that standpoint.

The grounds upon which the court sustained plaintiff's motion for a new trial were numbered 1, 2, 3, 4, 5, 6, and 7 of said motion and "for the further reason for the giving of Instruction No. 3, offered by defendant." Grounds numbered 1 and 2 of plaintiff's motion for a new trial alleged that the court erred in giving and reading to the jury Instruction No. 2, offered by defendant. Grounds numbered 3, 4, 5, 6 and 7 complained that the court erred in giving and reading to the jury Instruction No. 5, offered by defendant.

Although defendant at the close of the evidence filed a motion for dismissal of the cause on the ground that plaintiff failed to make a case against defendant, no such ground is presented in this Court. The only points made by defendant in this Court are that the trial court committed error in granting a new trial on the grounds heretofore mentioned, namely, the giving of instructions numbered 2, 3 and 5.

The court told the jury in instruction numbered 2 that the mere occurrence of the event testified to by plaintiff did not of itself establish negligence on the part of defendant, but that the "burden of proof remains on plaintiff to show by the greater weight of all the evidence in the case that defendant was negligent, which in this case would be the failure to exercise ordinary care in the purchase of the bottles and the handling, filling and distribution of Coca Cola which defendant sells." The instruction then went on and told the jury that if they found that defendant purchased the bottles which it fills with Coca Cola from a reputable manufacturer of bottles, and thereafter in the...