Underhill v. Anciaux

• Decision Date: 30 January 1951
• Docket Number: No. 3615,3615
• Parties: UNDERHILL et al. v. ANCIAUX.
• Court: Nevada Supreme Court

Page 794

226 P.2d 794

68 Nev. 69

UNDERHILL et al. v. ANCIAUX.

No. 3615.

Supreme Court of Nevada.

Jan. 30, 1951.

Morse & Graves, Las Vegas, for appellants.

Lewis, Hawkins & Cannon, Las Vegas, for respondent.

MERRILL, Justice.

This is an appeal from judgment of the Eighth Judicial District Court of the State of Nevada in and for the County of Clark, in favor of respondent, plaintiff below, in the sum of $798 plus costs, and from order denying motion for new trial.

The evidence and pleadings disclose the following facts:

Appellants (defendants below) are engaged in the business of manufacturing, bottling and wholesale-selling of Coca Cola. Respondent and her husband, on April 18, 1948, bought a case of Coca Cola at a store which, in turn, bought the beverage exclusively from appellants. Respondent placed a supply of the bottles in her refrigerator.

On April 20th respondent and her husband returned from a ride about nine P.M., passed through their lighted living room into the darkened kitchen, too two bottles of Coca Cola from the refrigerator, opened them, sat at the kitchen table and, by the light from the adjoining room, commenced to drink direct from the bottles. After two or three large swallows from her bottle, respondent noticed an unnatural taste became aware of foreign substance in her throat and on her tongue and retched. She turned on the light in the kitchen, went to the sink and, in the presence of her husband, with her fingers and handkerchief removed black, slimy matter from her mouth and scrubbed her tongue. She then became nauseated, ran to the bathroom and vomited. Her husband followed. They returned to the kitchen and, in the light, examined the respondent's bottle, noting foreign matter. The bottle, with its remaining contents, was plugged with a rubber stopper and placed in the refrigerator.

Respondent continued nauseated the remainder of that night and for the following several days and unable to retain anything on her stomach. On the fourth day following the drinking of the beverage, abdominal pains were felt in addition to the continuing nausea. Respondent then consulted a doctor who diagnosed her case as one of gastroenteritis and prescribed suppositories for sedative effect and sulphadiazine to combat the gastroenteritis. Two days later, her condition still unimproved, she was hospitalized for two days upon her doctor's orders and he at that time prescribed penicillin and streptomycin shots, B-complex injection, to build up her appetite and demerol in small doses before meals so that she would retain her food better. It was a matter of three weeks of so before she was able to do any substantial housework. At the time of the trial, months later, she had still not regained her former weight.

The contents of the bottle were never analyzed. Application by appellants for inspection and analysis of the bottle, preceded the trial, but was denied upon respondent's contention, supported by affidavit, that the remaining contents were insufficient in quantity to make an analysis and have sufficient of the contents left for use as an exhibit at the time of the trial.

The case was tried before the court without a jury.

It is now well recognized that manufacturers and bottlers of beverages are liable to consumers for injuries resulting from the fact that the beverage was unfit for human consumption because of the negligence of the manufacturer or bottler. This is true even where the consumer may have purchased from an intermediate dealer and no privity of contract therefore existed between the litigants.

The theory upon which recovery is based is not, however, subject to the same extent of agreement. Most courts rely upon negligence in an extension of the rule applicable to sale of articles inherently dangerous in character. The doctrine of res ipsa loquitur is frequently called upon for assistance in cases where the manufacturing or bottling mechanism was under exclusive control of defendant. Some authorities rely upon breach of implied warranty, although many reject this theory of recovery in absence of privity of contract. Other authorities appear to rely upon a combination of both warranty and negligence without distinguishing clearly between the two.

The extent of authority upon the subject generally and in its many ramifications is overwhelming and no purpose can here be served by an extensive reference. In lieu of further specific citations the following A.L.R. annotations are given: 17 A.L.R. 696; 39 A.L.R. 997; 63 A.L.R. 345; 88 A.L.R. 532; 105 A.L.R. 1507; 111 A.L.R. 1244; 140 A.L.R. 218; 142 A.L.R. 1491.

There can be no question as to the general trend toward granting of recovery. The extreme was, perhaps, reached in a concurring opinion by Traynor, J., in Escola v. Coca Cola Bottling Company of Fresno, 1944, 24 Cal.2d 453, 150 P.2d 436, 440, where he, in substance, advocated absolute liability in the manufacturer. 'I concur in the judgment, but I believe the manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings. * * * Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.'

The case before us, however, does not justify reliance upon such an extreme view. It appears to be one for application of the theory of negligence together with the doctrine of res ipsa loquitur and was so treated in the decision of the lower Court.

Appellants first contend that the doctrine of res ipsa loquitur may not apply under the facts of the instant case, where the 'sealed package' involved was a bottle whose sealing might have been removed and replaced without detection; that since the record is devoid of any evidence directly showing negligence on the part of appellants, respondent may not recover. As support for this contention appellants rely on the recent case of Jordan v. Coca Cola Bottling Co. of Utah, Utah, 218 P.2d 660, 664, where it is said: 'Whereas the almost inescapable conclusion to be drawn from the existence of a deleterious substance in a can which has remained sealed prior to being opened by the ultimate consumer, is that such substance must necessarily have been in the can at the time it was sealed, no such conclusion is required where the sealing is such that it can be removed and replaced without detection. Particularly is this true where there is shown to be opportunity for tampering. In other words, the only time that the doctrine of res ipsa loquitur should apply to a 'sealed product' in the latter category, is when the plaintiff has shown that there was an absence of opportunity for tampering so that in effect the court could conclude that there was extended control over the product by the manufacturer until it reached the ultimate consumer, or where the product passes directly from the manufacturer to the consumer without passing through intermediate hands.'

Clearly, however, 'opportunity for tampering' must be read as 'reasonable opportunity.' The question remains one of fact.

As was said by the court in Escola v. Coca Cola Bottling Company of Fresno, supra, 'It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it. * * * If such evidence is presented, the question becomes one for the trier of fact * * *.'

In the Jordan case there was greater oportunity for tampering than existed here. As the court there stated the facts: 'George Walker, driver of the Coca Cola truck, testifying on cross-examination indicated that at various times when he had been filling the vending machine at the American Smelting and Refining Company plant, men at the plant had come to him with warm bottles of Coca Cola and asked him to exchange them for cold, and that he had made such exchanges, and loaded the warm Coca Colas in the vending machine. Where these warm bottles came from he did not know.'

Further, the court points out: 'Factories and manufacturing plants where many men are thrown together, are noted for the horseplay and practical joking which there takes place, often with serious results.'

In the case at bar the manager of the store from which the bottle was bought was closely examined as to opportunity for tampering. He testified that while the Coca Cola cases were not constantly under his own eye, they were so stored that at all times they were observable to store employees. On cross examination he stated that, under the facts, he was positive substitution could not occur. While such an opinion certainly does not compel acceptance, still in conjunction with the factual testimony of the witness it does present evidence from which the court may well have found no reasonable opportunity for tampering to exist.

It is accordingly held that there is evidence which will support the application of the doctrine of res ipsa loquitur and, accordingly, a finding of negligence on the part of appellants.

Appellants next contend that, inasmuch as no analysis was made of the contents of the bottle or of the contents of respondent's stomach or of her stool, there was no direct testimony to the effect that her illness was caused by the drinking of the contents of the bottle and that the basis for the judgment of the lower court was, therefore, pure conjecture and surmise.

It...