Wallace v. Coca-Cola Bottling Plants, Inc., COCA-COLA

• Decision Date: 17 September 1970
• Docket Number: COCA-COLA
• Citation: 269 A.2d 117
• Parties: Malcolm H. WALLACE v. TheBOTTLING PLANTS, INC.
• Court: Maine Supreme Court

Page 117

269 A.2d 117

Malcolm H. WALLACE v. The COCA-COLA BOTTLING PLANTS, INC.

Supreme Judicial Court of Maine.

Sept. 17, 1970.

Berman, Berman & Simmons, by Jack H. Simmons, Lewiston, for plaintiff.

Marshall, Raymond & Beliveau, by John G. Marshall, Lewiston, for defendant.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.

POMEROY, Justice.

At the conclusion of a trial, an Androscoggin County jury awarded Plaintiff $2,000 damages against the Defendant.

The complaint, the filing of which commenced this action, alleged Defendant was liable to the Plaintiff because of, (a) a breach of warranty and (b) negligence. The case was submitted to the jury only on the issue of negligence, the breach of warranty count having been removed from the jury's consideration by the Court on Defendant's motion. The Plaintiff has not appealed from this ruling.

In the posture in which the case is before us for review, we must accept the evidence in the light most favorable to the Plaintiff. Scammon v. City of Saco, Me., 247 A.2d 108.

We conclude the jury was justified in finding from the evidence.

On December 23, 1966, the Plaintiff entered a store known as Lindley's in Canton, Maine. After ordering a pizza he went to the back of the store in the company of a friend and there removed a Coca-Cola bottle from a cooler and opened it. The cooler was not coin-operated and contained not only Coca-Cola bottles but other bottled products as well. Customers in the store usually served themselves from the cooler, a practice having the owner's approval.

After opening the bottle, Plaintiff placed it to his lips and drank from it. While doing so, a foreign object came in contact with his lips and tongue. He thereupon called the owner of the store to the cooler and in her presence poured the remaining contents of the bottle into a cup. It was then discovered the foreign object was an unpackaged prophylactic. When the bottle was opened it reacted normally, 'the cap came off as it normally would.' Upon opening the bottle the Plaintiff heard a sound, 'kind of a fizzle like a bottle does when it opens, the carbonation I presume.' The Plaintiff became ill after he returned home and began to think about his experience.

The jury was justified in believing from the evidence that the illness persisted for some time and caused the Plaintiff to be absent from his work. The Coca-Cola bottle had been purchased from the Defendant.

The Defendant says in its Points of Appeal:

'1. The Court erred in admitting certain testimony on the part of the plaintiff as to the cause of his sickness or illness which the plaintiff claimed followed his consuming some of the contents of the bottle of Coca-Cola.

'2. It was error to submit the matter to the jury because there was no evidence from which it could be inferred that the defendant was negligent and no evidence that there was any foreign matter in the bottle of Coca-Cola when it was delivered to the store where it was allegedly purchased.

'3. It was error on the part of the Court to deny the defendant's motion for a new trial.

'4. It was erroneous on the part of the Court to submit the matter to the jury on the issue of damages because there was no injury to the plaintiff, that is no physical injury that could be compensated for under the rules of our law.

'5. There was nothing in the plaintiff's evidence to show that there was any contamination or deleterious substance that rendered the contents of the bottle Coca-Cola allegedly purchased by the plaintiff that was harmful to him or to any reasonable person. There was no evidence that the contents of the bottle were injurious to any human.'

We start our discussion, as we must in view of the jury's finding, from the premise that the bottle in which the foreign object was found was purchased from the Defendant and at the time of the purchase by Plaintiff there was a foreign object in it.

This having been established, the only possible conclusions to be reached are, (a) the foreign object was in the bottle when it left the Defendant's plant and was delivered to the storekeeper, or (b) there was tampering with the bottle after it left the Defendant's plant and before it was purchased from the storekeeper by the Plaintiff. Was it the Plaintiff's responsibility to negate tampering or was it the responsibility of the Defendant to establish the fact of tampering?

This question is one of first impression in this State. Authorities are not in accord in other jurisdictions. See for example: Ashland Coca-Cola Bottling Co. v. Byrne, 258 S.W.2d 475 (Ky.1953); Williams v. Paducah Coca-Cola Bottling Co., 343 Ill.App. 1, 98 N.E.2d 164; Heimsoth v. Falstaff Brewing Corp., 1 Ill.App.2d 28, 116 N.E.2d 193; Jordan v. Coca-Cola Bottling Company of Utah, 117 Utah. 578, 218 P.2d 660; LeBlanc v. Louisiana Coca-Cola Bottling Co., 221 La. 919, 60 So.2d 873; Dr. Pepper Co. v. Brittain, 234 Ala. 548, 176 So. 286; Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 P.2d 436; Wichita Coca-Cola Bottling Co. v. Tyler, Tex.Civ.App., 288 S.W.2d 903; Keller v. Coca-Cola Bottling Co. of Walla Walla, 214 Or. 654, 330 P.2d 346.

In Lajoie v. Bilodeau, 148 Me. 359, 93 A.2d 719 (1953), our Court said:

'The mere presence of the brush in the bottle is evidence of negligence on the part of the defendant, where there is testimony which, if believed, indicates that the bottle had not been opened since leaving the defendant bottler. It could be properly inferred that the brush was there when the processing of the bottle began, or was introduced during the filling of the bottle with ginger ale, and that there was negligence on the part of the defendant in permitting it to get into the bottle * * *.'

We hold the rule in Maine to be that in those cases involving beverages sold in a capped and airtight bottle a plaintiff who has been damaged by a foreign body in the bottle makes out a prima facie case when he establishes that:

1. The bottle he purchased was processed by the Defendant;

2. There was nothing unusual about it when it was opened.

This is so even though the cap on the bottle is capable of being removed and replaced, and the fact of uncapping and recapping is difficult to discover.

If a defendant asserts there has been tampering with the bottle after it left its plant, such claim is an affirmative defense. The burden of establishing such defense is upon the defendant.

'* * * it is difficult to discern why a plaintiff, suffering illness as the result of consuming deleterious matter contained in a bottled beverage, should shoulder the burden of establishing a negative fact by producing the middleman, or others if need be, to show that no one handling the bottle after it left the defendant's plant removed the cap and permitted foreign substances to enter its contents. Properly, since proof of tampering by others would provide an avenue of escape from liability, it would seem to be a matter of defense.'

LeBlanc v. Louisiana Coca-Cola Bottling Co., 221 La. 919, 60 So.2d 873, at 875.

We turn now to a consideration of the Defendant's claim that there was no physical injury received by the Plaintiff for which compensation could be had.

In what was then a case of first impression, the Supreme Court of Massachusetts in 1897 decided the oft-quoted case of Spade v. Lynn & B. R. Co., 168 Mass. 285, 47 N.E. 88, 38 L.R.A. 512. Mr. Justice Allen, speaking for the Court, said:

'The law of negligence, in its special application to cases of accidents, has received great development in recent years. The number of actions brought is very great. This should lead courts well to consider the grounds on which claims for compensation properly rest, and the necessary limitations of the right to recover. We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and, if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without. The logical vindication of this rule is that it is unreasonable to hold persons who are merely negligent bound to anticipate and guard against fright and the consequences of fright, and that this would open a wide door for unjust claims, which could not successfully be met.'

More recently Spade was reaffirmed in Sullivan v. H. P. Hood & Sons, 341 Mass. 216, 168 N.E.2d 80 (1960). In that case, an able opinion by Mr. Chief Justice Wilkins, the Court declared: 'We have not been asked to overrule the Spade case and we are not disposed to do so.'

In the opinion specific attention was directed to the application of the Spade rule in two food cases. Wheeler v. Balestri, 304 Mass. 257, 23 N.E.2d 132; Kennedy v. Brockelman Bros., Inc., 334 Mass. 225, 134 N.E.2d 747.

In Sullivan Chief Justice Wilkins described the Spade rule as having been subjected to considerable refinements. Homans v. Boston Elev. Ry., 180 Mass. 456, 62 N.E. 737; Freedman v. Eastern Mass. St. Ry., 299 Mass. 246, 12 N.E.2d 739, and other cases were cited as examples of the refinements to which he referred.

Freedman v. Eastern Mass. St. Ry., supra...