Weggeman v. Seven-Up Bottling Co., SEVEN-UP

• Decision Date: 02 December 1958
• Docket Number: SEVEN-UP
• Citation: 93 N.W.2d 467,5 Wis.2d 503
• Parties: Kenneth WEGGEMAN, Appellant, v.BOTTLING CO., of Watertown, a Wis. corporation, Respondent. Gregory WEGGEMAN, an infant, by his gdn. ad litem, William H. Rogers, Appellant, v.BOTTLING CO., of Watertown, a Wis. corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 467

93 N.W.2d 467

5 Wis.2d 503

Kenneth WEGGEMAN, Appellant, v. SEVEN-UP BOTTLING CO., of Watertown, a Wis. corporation, Respondent.

Gregory WEGGEMAN, an infant, by his gdn. ad litem, William

H. Rogers, Appellant, v. SEVEN-UP BOTTLING CO., of Watertown, a Wis. corporation, Respondent.

Supreme Court of Wisconsin.

Dec. 2, 1958.

Mandate Amended on Denial of Rehearing Feb. 3, 1959.

See 94 N.W.2d 645.

Smith, Rogers & Smith, Fort Atkinson, for appellant.

Schubring, Ryan, Petersen & Sutherland, Eugene O. Gehl, Madison, for respondent.

WINGERT, Justice.

1. Denial of judgment for plaintiff. Appellants' first contention is that the trial court erred in refusing to grant their motion for judgment notwithstanding the verdict. It is argued that since defendant offered no evidence, both the principle res ipsa loquitur and the testimony in the record entitled plaintiffs to recover, and that in such a case it would be contrary to public policy to permit the judgment for the defendant to stand.

By the court's instructions, the jury were permitted to infer from the fact of the explosion that the bottle was dangerously defective in manufacture when delivered by defendant and that defendant was negligent in not discovering the defect, if they should find that the condition of the bottle had not been changed after it left defendant's possession that the accident was not due to any voluntary act on plaintiffs' part and that nothing had occurred to explain the explosion on any other ground than that of negligence on the part of the defendant.

Thus plaintiffs were given the benefit, to a limited extent, of the principle res ipsa loquitur, substantially as expounded, in its relation to bursting bottles, in Zarling v. La Salle Coca-Cola Bottling Company, 2 Wis.2d 596, 87 N.W.2d 263. We say to a limited extent, because the questions of the special verdict, particularly questions 1 and 2, restricted the inquiry to whether the bottle was dangerous by reason of a defect in its manufacture, and did not permit the jury to infer causal negligence on defendant's part in relation to defects arising from abuse subsequent to manufacture. This feature of the case is discussed in section 3 of this opinion.

While the jury were thus permitted to infer from the fact of the explosion, with its background, that the bottle suffered from a manufacturing defect when delivered by defendant and that defendant was negligent in not discovering the defect, the jury declined to do so. In this state, and by the weight of American authority, res ipsa loquitur generally gives rise only to a permissible inference of negligence, not a presumption, and if the jury refuses to draw such inference, that is the end of the matter. Zarling v. La Salle Coca-Cola Bottling Co., 2 Wis.2d 596, 603, 87 N.W.2d 263; Harper & James, Law of Torts, sec. 19.11, p. 1100; Prosser on Torts, 2 ed. sec. 43, p. 212.

Plaintiffs argue that since defendant offered no evidence of its own, the inferences of defective bottle and negligence became mandatory. This contention must fail, first because defendant did adduce evidence, by cross examining plaintiffs' witness, that the bottle was exposed to substantial hazards of possible damage after it left defendant's hands (see discussion under the next heading); and secondly, because the permissible inference of negligence known as res ipsa loquitur is normally not a presumption, and hence need not be rebutted by the defendant in order to allow the jury to reject it. The latter proposition is normally favorable to plaintiffs, since the inference is capable of persisting even after evidence counteracting it is admitted, and does not necessarily disappear after the fashion of a legal presumption upon being rebutted. Koehler v. Thiensville State Bank, 245 Wis. 281, 287, 14 N.W.2d 15.

Among the practical results of the permissible inference theory of res ipsa loquitur are these:

'(1) Upon the close of plaintiff's evidence, defendant is not entitled to a nonsuit or directed verdict.

'(2) If defendant also rests at this point without putting in any evidence, plaintiff is not entitled to a directed verdict unless upon the facts of a particular case 'the prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable if not rebutted by other evidence,' a situation which would not be true in the great majority of cases.' 2 Harper & James, Law of Torts, sec. 19.11, p. 1100.

We recognize that the inferences of negligence arising in res ipsa cases are of varying strength, depending on the circumstances, and in some situations the inference may be so clear that no reasonable jury could fail to accept it, in which case plaintiff would be entitled to a directed verdict. Koehler v. Thiennsville State Bank, 245 Wis. 281, 288, 14 N.W.2d 15; Prosser on Torts, 2 ed., 212. ¹

We do not consider that this is one of those exceptional cases. The inferences that there was a dangerous defect in the manufacture of the bottle and that defendant was negligent in failing to discover it are not so clear that no reasonable jury could fail to draw them. Hence the jury was within its province in refusing to infer that the bottle had such a defect at the time of delivery by the defendant, and plaintiff is not entitled to judgment notwithstanding the verdict. The evidence pertinent to this conclusion is discussed under the next heading.

2. Refusal to change jury's answer. Plaintiffs contend that the trial court erred in refusing, after verdict, to change the answer to question 1 from no to yes, and thereby find that the bottle was dangerous on delivery by defendant by reason of a manufacturing defect, and to answer questions 2 and 3 in the affirmative, and thus find as a matter of law that defendant was causally negligent in failing to discover the defect.

The argument is that the undisputed testimony of Mr. and Mrs. Weggeman that most of the bottle broke into minute fragments, and Professor Roark's testimony that minute fragmentation on breakage is characteristic of improperly annealed glass, conclusively established that the bottle was improperly annealed and hence dangerously defective. Professor Roark also testified that glass loses strength under sustained loading; and the store manager testified that cartons of 7-Up were piled four or five high in the storeroom by defendant's deliverymen, the bottom of one carton standing on the tops of bottles in the one below it. Professor Roark's testimony dealt only with the general behaviour of glass, and was not based on any inspection of the particular bottle fragments. He did not testify that no other type of defect or injury to a bottle would lead to extreme fragmentation.

On the other hand, defendant points to the following evidence tending to warrant belief that the bottle may have been damaged after it left the control of defendant. Fifteen other suppliers and four store employees had access to the storeroom at the supermarket, where they may have jolted the bottles of 7-Up. The particular bottle may have been in the store for a long time, perhaps years. Store employees took the bottles from the storeroom to the sales shelf on a hand cart. In the main store, the 7-Up was supposed to be stored on a shelf, but plaintiff's father testified he got the 6-pak from a place on or close to the floor. It was at the end of an aisle, where customers and employees passed on three sides and hence the 6-pak was subject to the hazards of cart traffic and foot traffic. Customers sometimes handled the bottles without buying them and bottles may have been dropped on the floor. The boy Gregory was playing with the bottles immediately before the accident, and may have banged the bottle against others or dropped it on the floor. He was sitting in front of the refrigerator, and after the accident the refrigerator was covered with 7-Up, suggesting that he may have struck the bottle against the refrigerator door while putting the bottles back pursuant to his mother's instruction.

While the evidence thus cited by defendant merely suggests ways in which the bottle may have been damaged between its delivery by defendant and the explosion, and does not prove that it was so damaged, that relied on by plaintiffs also merely shows that the bottle may have been badly annealed or overloaded. We cannot say that the jury went beyond its province in rejecting the inference that there was a dangerous defect in manufacture. Plaintiffs had the burden of proof, and while res ipsa gave them an assist, it was not conclusive on the jury.

Even if we were to accept the proposition that the bottle was defectively annealed and thereby dangerous, there was no evidence that the defect should have been discovered by the bottler in the exercise of ordinary care. Hence the court did not err in refusing to answer question 2 in the affirmative. Again res ipsa would have permitted such an answer, but did not compel it.

3. Form of special verdict. As...