Winfree v. Coca-Cola Bottling Works
| Decision Date | 02 January 1937 |
| Citation | 103 S.W.2d 33,20 Tenn.App. 615 |
| Parties | WINFREE v. COCA-COLA BOTTLING WORKS. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court March 27, 1937.
Appeal in Error from Circuit Court, Wilson County; Harry Camp Judge.
Action by Freeman Winfree against Coca-Cola Bottling Works. Judgment for defendant, and plaintiff appeals in error.
Affirmed.
Walter S. Faulkner, Frank McMillan, and Allison Humphreys, Jr., all of Lebanon, for plaintiff in error Winfree.
Trabue Hume & Armistead, of Nashville, and W.B. Williams and Louis Chambers, both of Lebanon, for defendant in error Coca Cola Bottling Works.
This is an action brought against the defendant Coca-Cola Bottling Works to recover for an injury to an eye, which the plaintiff, Winfree, alleges was caused by the negligence of the defendant in overcharging a bottle of Coca-Cola with carbonic acid gas which resulted in an explosion.
The declaration contained two counts. The first charged that the carbonic acid gas forced into the bottle of Coca-Cola was explosive and the defendant company was negligent in overcharging the bottle with such gas, which caused said explosion. The second count averred that the defendant knew that carbonic acid gas was explosive and dangerous and that an overcharge of same would cause an explosion, but, in spite of that, it negligently overcharged said bottle, which caused it to explode.
The defendant pleaded not guilty.
The case was tried by the judge and a jury. At the close of the plaintiff's evidence, and again at the conclusion of all the evidence, the defendant moved the court for peremptory instructions in its favor, which motions were overruled. The jury returned a verdict in favor of the defendant and judgment was entered dismissing the plaintiff's action.
The plaintiff's motion for a new trial having been overruled he appealed in error to this court and has assigned errors, which are, in substance, as follows:
(1) There is no evidence to sustain the verdict.
(2) The trial judge erred in twice charging the jury on the contributory negligence of the plaintiff, which emphasized that fact.
(3) The trial judge erred in excluding testimony in regard to the finding of a brass ring in a bottle of Coca-Cola.
(4) The court erred in refusing to charge the plaintiff's special request as to notice to the defendant company that the bottles were being too heavily charged.
(5) The verdict was the result of passion, prejudice, and caprice on the part of the jury as clearly appears upon the face of the verdict when compared with the undisputed evidence in the case.
This case was before us last year and we reversed and remanded it for a new trial. Winfree v. Coca-Cola Bottling Works, 19 Tenn.App. 144, 83 S.W.2d 903. The case was tried again in the lower court and is now again before us for determination.
Freeman Winfree, thirty-two years of age, was, in October, 1933, employed as a clerk and meat cutter in a retail grocery store in Lebanon, Tenn. Behind the counter from which he sold meat was a refrigerator in which was kept meat, bottled Coca-Cola, etc.
All the Coca-Cola sold in the grocery store was purchased from the defendant, the Coca-Cola Bottling Works, of Lebanon, Tenn.
On October 19, 1933, Winfree went into the refrigerator to get some bacon. It was behind two crates of Coca-Cola. One crate of bottles was full, containing twenty-four bottles, and the other crate was about half full. In order to reach the bacon it was necessary for him to move the two crates, one of which was on top of the other. He caught the handhold of the bottom crate and gently moved the two crates eight or ten inches. The bottles did not strike each other in moving. While he was moving them a bottle of Coca-Cola in the top crate, the partly filled crate, exploded, and a piece of the glass of the bottle was thrown into his right eye, permanently injuring it.
The Coca-Cola had been in the refrigerator a day or two, and the temperature of the refrigerator was kept at 34 to 36 degrees.
Occasionally a customer would go into the refrigerator to look at meat or something, but he was generally accompanied by a clerk.
Other cases of Coca-Cola were placed outside of the refrigerator and by the side of it, behind the counter, and customers sometimes went behind the counter, but there was usually a clerk present.
1. The plaintiff contends that there is no evidence to support the verdict; that there is no other reasonable explanation of this explosion except that the bottle was overcharged and put on the market.
We think there is no doubt about the liability of a company that overcharges the contents of a bottle, and knowingly or recklessly puts it on the market, and injury results from an explosion. Winfree v. Coca-Cola Bottling Works, 19 Tenn.App. 144, 83 S.W.2d 903; Dail v. Taylor, 151 N.C. 284, 66 S.E. 135, 28 L.R.A. (N.S.) 949; Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S.E. 152, 1 L.R.A. (N.S.) 1178, 110 Ann.St.Rep. 157; O'Neill v. James, 138 Mich. 567, 101 N.W. 828, 68 L.R.A. 342, 110 Am.St.Rep. 321, 5 Ann.Cas. 177; Weiser v. Holzman, 33 Wash. 87, 73 P. 797, 799, 99 Am.St.Rep. 932; Colyar v. Little Rock Bottling Works, 114 Ark. 140, 169 S.W. 810.
We are also of the opinion that: "Evidence of the explosion to the injury of the purchaser of a bottle of carbonated beverage, accompanied by evidence that other bottles put up by the same bottler had exploded during the several preceding months, is sufficient to carry to the jury the question of the latter's negligence, in an action to hold him liable for the injury." Dail v. Taylor, supra. We held this in our former opinion in this case when it was first before us, that is, evidence of the defendant's knowledge of other explosions was sufficient to carry the question of negligence to the jury. We did not hold that such evidence was conclusive, but, like any other material evidence, it should be considered by the jury and be weighed with other facts and circumstances by the jury in arriving at its verdict.
The jury returned a verdict for the defendant company. Now, was there any material evidence to support the verdict? We think there is, and that we are bound by the verdict.
The manager of the company at Nashville testified that the defendant company purchased its empty bottles from well-recognized and modern glass plants and that a Coca-Cola bottle will stand 600 pounds of pressure; that the pressure used in the Lebanon plant was 32 pounds, which was the amount generally used in bottling Coca-Cola; that soda fountain pressure runs from 90 to 120 pounds; that pressure in a Coca-Cola bottle becomes lower when the bottle is cool and rises when the temperature increases. But he admitted they used Coca-Cola bottles from...
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